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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
BETWEEN
XXXXXX FREIGHT SYSTEMS OF GEORGIA, INC.,
XXXXXX FREIGHT SYSTEMS OF TAMPA, INC.,
XXXXXX AIR FREIGHT, INC.
AND
PTG, INC.
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the date last written below, by and between XXXXXX FREIGHT SYSTEMS
OF GEORGIA, INC. ("KFSG"), a Georgia corporation, XXXXXX FREIGHT SYSTEMS OF
TAMPA, INC. ("KFST"), a Florida corporation, and XXXXXX AIR FREIGHT, INC.
("KAF"), a Florida corporation (referred to hereinafter collectively as the
"Sellers"), and PTG, INC., ("Buyer") a Georgia corporation.
WHEREAS, Sellers desire to sell and Buyer desires to purchase certain
of the assets of Sellers, including, but not limited to, certain assets
associated with KFSG's business division operating under the name Rapid Transit
Delivery Service ("Rapid");
NOW, THEREFORE, in consideration of the mutual representations,
warranties, terms, conditions and covenants contained herein, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. TRANSFER OF RIGHTS IN CERTAIN INTANGIBLES AND PERSONAL
PROPERTY. On the terms and subject to the conditions of this Agreement,
Sellers hereby transfer to Buyer the following assets and rights of the
Sellers:
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(a) a list of names and addresses of all customers of
Rapid (the "Customer List");
(b) Sellers' rights, to the extent transferable, to use
the Rapid name and variations and derivations thereof;
(c) Sellers' rights, to the extent transferable, in any
and all telephone numbers used by Sellers;
(d) all accounts receivable attributable to Rapid in the
amount of $77,742.83, a list of which is set forth in Exhibit A attached hereto;
(e) all licenses, permits, registrations and/or
authorities, issued and/or required by any local, state, federal or other
government and/or governmental agency or unit, related and/or necessary to the
operation of the business of Rapid;
(f) pre-paid expenses in the amount of $38.46;
(g) deposits in the amount of $50.00;
(h) an account receivable in the amount of $14,000.00 due
from Timely Transportation, Inc.;
(i) certain equipment of Rapid valued at $13,581.20, a
list of which is attached hereto as Exhibit B;
(j) all information possessed by KFSG that is determined
by Buyer to be reasonably necessary for Buyer to commence operation of delivery
services substantially similar to those offered by Rapid, using the Rapid name
and servicing Rapid's current customers.
(k) additional fixed assets of KFSG, valued at
$31,191.00., a list of which is attached hereto as Exhibit C;
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(l) certain physical assets of KFST, valued at
$75,166.00, a list of which is attached hereto as Exhibit D;
(m) certain fixed assets of KAF, valued at $9,332.00, a
list of which is attached hereto as Exhibit E; and
2. CONSIDERATION GIVEN BY BUYER. In consideration for Sellers'
execution of this Agreement and performance of Sellers' obligations set forth
herein upon execution and delivery of this Agreement:
(a) Buyer hereby assumes certain accounts payable of
Sellers in the amount of $27,630.11, which the parties agree are those accounts
payable associated with Rapid, a complete list of such accounts payable and the
specific amounts assumed by Buyer are attached hereto as Exhibit F; and
(b) the parties acknowledging that the assets transferred
hereunder are subject to certain blanket security interests in the assets of
Sellers held by SunTrust Bank, Buyer agrees to pay SunTrust Bank for the
benefit of Sellers, amounts equal to five percent (5%) of the gross sales of
Rapid each month hereafter, payable on the fifteenth (15th) of each month for
the preceding month, for a period of five (5) years. In the event that the
debt to SunTrust is retired prior to the expiration of such arrangement, the
remaining payments shall be paid to KFAG.
3. OPEN ACCOUNTS RECEIVABLE AND PAYABLE. Any "open receivables,"
i.e., receivables generated by services performed by Rapid prior to the date of
this Agreement and not yet billed, shall be included in the receivables
purchased by Buyer and accounts payable for goods and services attributable to
Rapid, but for which bills have not yet been received, shall be assumed by
Buyer.
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4. NON-COMPETITION. Sellers agree that, for a period of three
(3) years from and after the date hereof, Sellers will not, directly or
indirectly, engage in or operate, own, manage, control, join or participate in
the ownership, management, operation or control of, or be connected in any way
with any business that performed courier or delivery service of any kind within
the State of Georgia.
Sellers agree to terminate the employment of all Sellers' current
employees involved in operation of Rapid. Sellers shall not rehire any such
terminated employees for a period of two (2) years from the date of this
Agreement, unless the prior written consent of Buyer is obtained.
5. REASONABLE EFFORTS. Sellers and Buyer will execute all
additional documents and take all further actions reasonably necessary to
effectuate the transfers and assignments contemplated above, and all other
terms of this Agreement. In addition, upon reasonable request by Buyer, and in
consideration of the terms contemplated in this Agreement, Sellers shall
transfer, assign or sublease any lease or contractual arrangement with third
parties relating to Rapid to Buyer in exchange for Buyer's assumption of
Sellers' obligations accruing under such lease or contract following the date
of such assignment, transfer or sublease.
6. WARRANTIES AND REPRESENTATIONS. Except as specifically and
explicitly set forth in this Agreement, Sellers make no warranties or
representations, express, implied or statutory as to any of the rights or
assets transferred, including without limitation any implied warranties of
merchantability or fitness for any particular purpose or as to the value of
such assets. Sellers' liability to Buyer for breach of contract or otherwise
shall be limited to the amount of the Purchase Price. Sellers shall have no
liability or obligation to any third party pursuant to this Agreement. To the
maximum extent allowed by applicable law, Sellers shall not be liable to Buyers
or third parties, pursuant to this Agreement or as a result of the performance
of this
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Agreement, for acts of negligence, lost profits or business, or indirect,
consequential or punitive damages.
Sellers warrant that all assets and rights, whether tangible and
intangible, being transferred pursuant to this Agreement will be free and
clear of any and all liens, claims and encumbrances, except as otherwise set
forth in this Agreement.
Sellers represent that there are no lawsuits pending or threatened
that the Sellers have reason to believe would affect Sellers' right to transfer
any of the assets or property rights being transferred pursuant to this
Agreement.
Sellers represent that Sellers have no reason to believe that Rapid's
customers plan to materially decrease their business with Rapid, but Sellers do
not warrant that Buyer will be able to retain Sellers' customers in the future.
7. RELATIONSHIP OF THE PARTIES. The relationship of the parties
shall be limited to that of independent Sellers and Buyer. The parties are not
engaged in and do not intend to engage in a joint venture, partnership or
similar relationship among any of the parties, and nothing contained herein or
any action taken pursuant hereto is to be construed as bringing about such a
relationship between any of the parties. Each party will take all actions
reasonably necessary to ensure that the other parties to this Agreement do not
become subject to liabilities or obligations as a result of the other party's
use of the "Rapid" name or any derivations of that name, and shall hold each
other harmless from such liabilities and obligations.
8. NOTICES. All notices and other communications under or in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when hand delivered or when mailed via First Class Mail,
postage prepaid, and addressed as follows:
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If to Sellers: Xxxxxx Air Freight Systems of Georgia, Inc.
Suite 1020
000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, XX 00000
If to Buyer: PTG, Inc.
0000 Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
9. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings. This Agreement may be amended or modified only in a writing
signed by all parties hereto.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but
one agreement.
11. WAIVER. Any of the terms and conditions of this Agreement may
be waived at any time and from time to time in writing by the party entitled to
the benefit thereof without affecting any other terms and conditions of this
Agreement. The waiver by either party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach.
12. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. BENEFIT. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the respective successors and permitted
assignees of the parties hereto. Except as otherwise expressly provided
herein, nothing expressed or implied herein shall be construed
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to confer upon or give any person, firm or corporation, other than the parties
hereto, any right or remedy hereunder or by reason hereof.
14. SEVERABILITY. If any provision of this Agreement is declared
or found to be illegal, unenforceable or void, then both parties shall be
relieved of all obligations arising under such provision, but only to the
extent that such provision is illegal, unenforceable or void, it being the
intent and agreement of the parties that this Agreement shall be deemed amended
by modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objective. If the remainder of this Agreement shall not be
affected by such declaration or finding and is capable of substantial
performance, then, each provision not so affected shall be enforced to the
extent permitted by law.
IN WITNESS WHEREOF, Buyer and Sellers have caused this Agreement to be
duly executed and delivered on the day and year last written below.
BUYER: SELLERS:
PTG, INC. XXXXXX FREIGHT
SYSTEMS OF GEORGIA, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
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Xxxxxx X. Xxxxx Xxxxx X. Xxxx
President Chief Financial Officer
Date: 12/31/96 Date: 12/31/96
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XXXXXX FREIGHT SYSTEMS OF
TAMPA, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Chief Financial Officer
Date: 12/31/96
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XXXXXX AIR FREIGHT, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Chief Financial Officer
Date: 12/31/96
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