EX 10.1
AMENDMENT NO. 2 TO MERGER AGREEMENT, SETTLEMENT AND
GENERAL RELEASE AGREEMENT
THIS AMENDMENT, SETTLEMENT AND GENERAL RELEASE AGREEMENT (this
"Agreement"), dated this second day of August, 2001, by and among CORPORATE
EXPRESS, INC., a Colorado corporation and successor by merger to CEX Holdings,
Inc., a Colorado corporation ("CEX"), VELOCITY EXPRESS, INC. f/k/a Corporate
Express Delivery Systems, Inc., a Delaware corporation ("Company") and UNITED
SHIPPING & TECHNOLOGY, INC., a Utah corporation ("Buyer"). CEX, Company, and
Buyer are sometimes individually referred to herein as a "party" and
collectively as the "parties."
W I T N E S S E T H:
WHEREAS, the parties are each parties (together with United Shipping &
Technology Acquisition Corp., which was merged with and into Company) to a
Merger Agreement dated as of September 8, 1999, as amended by Amendment No. 1 to
Merger Agreement dated as of September 22, 1999 (the "Merger Agreement"),
whereby Buyer acquired all of the issued and outstanding Common Stock of Company
and Company became a wholly owned subsidiary of Buyer; and
WHEREAS, pursuant to Section 2.2 of the Merger Agreement, the parties
provided that the Merger Consideration would be subject to adjustment after the
Closing Date; and
WHEREAS, a dispute exists between CEX and Buyer regarding, inter alia,
(a) adjustments to the Merger Consideration, (b) Buyer's obligation to indemnify
CEX, (c) Buyer's obligation to terminate and replace certain equipment leases in
the name of CEX, and (d) certain misdirected payments; and
WHEREAS, the parties are desirous of settling their disputes and all
claims between them on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, CEX, Company and Buyer hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. Capitalized terms used in this Agreement
and not otherwise defined herein have the respective meanings given those terms
in the Merger Agreement. For purposes of this Agreement, the following terms,
when capitalized, have the following meanings:
"Buyer and Company's Bring Down Certificate" shall have the meaning set
forth in subsection 9.2.1.
"Casualty Insurance" means the combination of Primary and Excess
Automobile Liability Insurance, Statutory Workers' Compensation and Primary and
Excess Employers Liability Insurance and Primary and Excess General Liability
Insurance (each as defined below).
"Casualty Insurance Liabilities" means all expenses associated with
Casualty Insurance for the benefit of Company or any of its Subsidiaries (past
or present), including, without limitation, insurance premiums, claims within
deductible or self-insured retentions, allocated loss adjustment expenses, audit
fees and adjustments, claim service fees, premium taxes, State residual market
load or other legislatively-imposed fees, insurance brokerage fees, assessments
and disputes, and other expenses directly related to Casualty Insurance.
"CEX Bring Down Certificate" shall have the meaning set forth in
subsection 9.1.1.
"Merger Agreement" shall have the meaning set forth in the first
Whereas clause above.
"Primary and Excess Automobile Liability Insurance" means insurance
(including deductibles and self-insured retention amounts) of the liability
exposures associated with the operation of motor vehicles, including, but not
limited to property damage, bodily injury or other losses for which the insured
may be liable.
"Primary and Excess General Liability Insurance" means insurance
(including deductibles and self-insured retention amounts) of the liability
exposure arising out of occurrences resulting from the premises or operations of
the insured, products sold by the insured and operations completed by the
insured.
"Settlement Closing" shall have the meaning set forth in Section 11.1.
"Settlement Closing Date" shall have the meaning set forth in Section
11.1.
"Statutory Workers' Compensation and Primary and Excess Employers
Liability Insurance" means insurance (including deductibles and self-insured
retention amounts and participation in monopolistic state funds in the name of
the Company or any of its Subsidiaries, past or present), in each case, covering
the liability exposures associated with the risk of bodily injury to an employee
arising from accident or disease incurred in the course and scope of employment;
provided that insurance provided by monopolistic state funds shall not apply to
CEX, but shall apply to Company, Buyer and any of their Subsidiaries.
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ARTICLE II
AMENDMENT TO MERGER AGREEMENT
Section 2.1 Amendment to Subsection 2.1.7 of Merger Agreement.
Subsection 2.1.7 of the Merger Agreement shall be amended as of the Settlement
Closing Date to provide that the aggregate amount of the Merger Consideration
shall be $48,096,476. CEX hereby acknowledges and agrees that the entire amount
of the Merger Consideration shall be paid in full as follows:
2.1.1 The sum of $43,000,000 heretofore delivered to CEX,
receipt whereof is hereby acknowledged by CEX.
2.1.2 The sum of $3,096,476.25 heretofore delivered to CEX,
receipt whereof is hereby acknowledged; and
2.1.3 By the payment of $2,000,000 by delivery to CEX in
immediately available funds by wire transfer to CEX's account on the
Settlement Closing Date.
Section 2.2 Acknowledgment With Respect to Section 2.2 of Merger
Agreement. The parties acknowledge and agree that this Agreement is intended to
and shall resolve all disputes and issues between the parties with respect to
the Merger Consideration and adjustments thereof as provided in Article 2 of the
Merger Agreement.
Section 2.3 Merger Agreement of No Further Force and Effect. Except as
hereinabove set forth in this Article, the Merger Agreement shall be of no
further force and effect and none of the parties hereto shall have any rights or
obligations thereunder. Notwithstanding the foregoing, Company, Buyer and CEX
acknowledge that the transactions contemplated by the Merger Agreement have been
consummated and, except as expressly provided in this Agreement, CEX has no
responsibilities to pay, perform or discharge any liabilities of Company and its
Subsidiaries which were transferred pursuant to the Merger Agreement, and
Company and Buyer shall remain obligated to pay, perform and/or discharge all
such liabilities.
ARTICLE III
ADDITIONAL TERMS AND CONDITIONS
Section 3.1 Casualty Insurance Liabilities.
3.1.1 CEX shall pay, perform and discharge all Casualty
Insurance Liabilities with respect to Casualty Insurance as set forth
on Schedule 3.1.
3.1.2 With respect to any Casualty Insurance Liabilities paid
and discharged by CEX (or any Subsidiary) or Buyer and Company (or any
respective Subsidiary) prior to the Settlement Closing Date, neither
CEX (or any Subsidiary) nor Buyer or Company (or any
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respective Subsidiary) shall have a right or claim against the other
for reimbursement or indemnity.
3.1.3 CEX shall reimburse, defend, indemnify and hold Buyer,
Company and their respective Subsidiaries harmless from and against,
and pay and reimburse such parties for and with respect to any Casualty
Insurance Liabilities as provided in subsection 3.1.1, above.
Section 3.2 Insurance Refunds. Buyer or Company shall pay over or cause
any of their respective Subsidiaries to pay over to CEX any refunds of premiums,
rebates or other amounts, including recoveries, with respect to Casualty
Insurance policies identified on Schedule 3.1 received by Buyer, Company or any
of their respective Subsidiaries after the Settlement Closing Date promptly upon
receipt of such amounts.
Section 3.3 Management of Casualty Insurance Claims. CEX shall direct
and shall be responsible for the management of Casualty Insurance Liabilities.
Section 3.4 Retained Insurance Liability. Except for the Casualty
Insurance Liabilities assumed by CEX as provided in Section 3.1, Company and
Buyer shall pay and discharge any and all liabilities associated with or arising
from Casualty Insurance for the benefit of Company, Buyer or any of their
subsidiaries, including without limitation, insurance premiums, claims within
deductible or self-insured retentions, uninsured and underinsured claims,
allocated loss adjustment expenses, audit fees and adjustments, claim service
fees, premium taxes, State residual market load or other legislatively-imposed
fees, insurance brokerage fees, and other expenses directly related to Casualty
Insurance. Buyer and Company shall reimburse, indemnify and hold harmless CEX
from and against any such liabilities of Company under this Section 3.4.
ARTICLE IV
TERMINATION OF CERTAIN ANCILLARY AGREEMENTS
Section 4.1 Promissory Notes. CEX acknowledges that the Short-Term
Subordinated Note in the principal amount of $7,500,000 and dated September 24,
1999 has been paid, in part, in the amount of $3,096,476.25. As a result of the
adjustment to the Merger Consideration as provided in Article II above, said
Short-Term Subordinated Note, the Long-Term Subordinated Promissory Note in the
principal amount of $6,519,000 and dated September 24, 1999 and the Convertible
Subordinated Promissory Note in the principal amount of $3,600,000 and dated
September 24, 1999, each delivered by Company to CEX, shall be returned to
Company and shall be of no further force and effect and Company shall have no
further obligation to pay the principal of and any and all accrued but unpaid
interest on said notes.
Section 4.2 Guaranty Agreement. The Guaranty Agreement dated as of
September 24, 1999 and delivered by Buyer and certain Company Subsidiaries
pursuant to the Merger Agreement shall be terminated effective as of the
Settlement Closing Date.
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Section 4.3 Security Agreements. The Security Agreement dated as of
September 24, 1999 and delivered by Company to CEX and the Security Agreement
dated as of September 24, 1999 and delivered by Company Subsidiaries to CEX
pursuant to the Merger Agreement shall be terminated effective as of the
Settlement Closing Date. CEX shall deliver executed UCC-3 Termination Statements
terminating all UCC-1 Financing Statements filed against any of the assets of
Company, Company Subsidiaries and Buyer as identified by Buyer and Company in
Schedule 4.3 annexed hereto. Following the Settlement Closing Date, CEX will
execute and deliver such further UCC-3 Termination Statements as shall be
identified by Company or Buyer as necessary to terminate all UCC-1 Financing
Statements filed against any of the assets of Buyer and/or Company.
Section 4.4 Intercreditor Agreement. The Intercreditor and
Subordination Agreement dated as of September 24, 1999 by and among GE Capital
Corporation, Bayview Capital Partners LP and CEX shall be amended effective as
of the Settlement Closing Date to delete CEX as a party thereto in a form
mutually acceptable to the parties.
Section 4.5 Exchange Agreement. The Exchange Agreement dated as of
September 24, 1999 by and between Buyer and CEX and entered into in connection
with the Convertible Subordinated Promissory Note shall be terminated effective
as of the Settlement Closing Date.
Section 4.6 Transition Services Agreement. The Transition Services
Agreement dated as of September 24, 1999 by and among the parties hereto shall
be terminated effective as of the Settlement Closing Date.
ARTICLE V
SURVIVAL OF CERTAIN ANCILLARY AGREEMENTS
Section 5.1 Tax Sharing and Indemnity Agreement. The Tax Sharing and
Indemnity Agreement dated as of September 24, 1999 by and among the parties
hereto and Corporate Express, Inc. shall remain in full force and effect.
Section 5.2 Non-Competition Agreement. The Non-Competition Agreement
dated as of September 24, 1999 by and among Buyer, CEX and Corporate Express,
Inc. shall remain in full force and effect.
Section 5.3 Confidentiality Agreement. The Confidentiality Agreement
dated as of March 30, 1999 by and between Buyer and CEX shall remain in full
force and effect.
Section 5.4 Assumption Agreement. Subject to the provisions of Article
III above, the Assumption Agreement dated as of July 3, 1999 by and among
Company, Corporate Express Delivery Systems - Expedited, Inc. and Corporate
Express Delivery Systems - Southeast, Inc. shall remain in full force and
effect.
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ARTICLE VI
OTHER AGREEMENTS
Section 6.1 Equipment Leases. Company and Buyer shall use their
commercially reasonable efforts to cause all or a portion of the Equipment
Leases (including all vehicle leases transferred under the Merger Agreement) for
equipment utilized by Company or Company Subsidiaries with respect to which CEX
or a Subsidiary is the named lessee to be terminated with no further liability
or obligation of CEX or any Subsidiary under or pursuant to any such Equipment
Leases. In the event Buyer and Company are not successful in causing a
termination of all or a portion of the Equipment Leases, Company and Buyer shall
pay, perform and discharge all amounts required to be paid under the Equipment
Leases as and when same shall become due and payable from and after the
Settlement Closing Date. From and after the Settlement Closing Date, Company and
Buyer shall, jointly and severally, reimburse, indemnify and hold harmless CEX
from and against any liabilities arising under the Equipment Leases.
Section 6.2 Receipt of Payments Belonging to Other Party. As to each of
CEX (or any Subsidiary) and Company and Buyer (and any of their respective
Subsidiaries), such party shall credit as paid the obligation of a third party
for any payment received by the other party on or before the Settlement Closing
Date; any monies received by each party on or before the Settlement Closing Date
shall be deemed part of the consideration for the execution and delivery of this
Agreement.
Section 6.3 Brimo Litigation. The parties acknowledge that Xxxx X.
Xxxxx has instituted a lawsuit in the Supreme Court of the State of New York,
County of Erie, Index No. I-2000-10511, against CEX and a subsidiary of Company.
Nothing contained in this Agreement is intended to or shall affect the rights
and obligations of the parties with respect to the defense of such lawsuit or
any obligation to satisfy any judgment entered in favor of plaintiff and against
any party thereto.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1 Representations and Warranties of Buyer and Company. Buyer
and Company hereby represent and warrant to CEX as follows, which
representations and warranties are, as of the date hereof, and will be, as of
the Settlement Closing Date, true and correct:
7.1.1 Due Organization. Buyer and Company are corporations
duly incorporated, validly existing and in good standing, under the
laws of their jurisdiction of incorporation.
7.1.2 Due Authorization. Buyer and Company have the full
corporate power and authority to enter into and perform this Agreement
and the agreements contemplated hereby and thereby. The execution and
delivery of this Agreement and the agreements and releases by
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Buyer and Company, the consummation of the transaction contemplated
hereby and thereby, and the performance by Buyer and Company of all of
their respective obligations under this Agreement and the agreements
have been duly authorized and approved by Buyer and Company. This
Agreement has been, and at the Settlement Closing Date the agreements
to be delivered hereunder will be, duly executed and delivered by a
duly authorized officer of Buyer and Company to the extent each is a
party thereto.
7.1.3 Enforceability. This Agreement constitutes, and the
agreements to be delivered hereunder will constitute, the legal, valid
and binding obligation of Buyer and Company in accordance with its
respective terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, moratorium, fraudulent transfer
or other similar laws affecting creditors' rights generally or by
principles governing the availability of equitable remedies.
7.1.4 No Conflict. Neither the execution and delivery of this
Agreement or the agreements to be delivered hereunder by Buyer or
Company, nor the consummation by Buyer or Company of the transactions
contemplated hereby or thereby, will violate, conflict with or result
in a breach of any of the terms, conditions or provisions of (a)
Buyer's or Company's certificate of incorporation, as amended, by-laws,
as amended, or other organizational instruments, or (b) any obligation,
lease, license, agreement, contract, plan or other arrangement.
Section 7.2 Representations and Warranties of CEX. CEX hereby
represents and warrants to Buyer and Company as follows, which representations
and warranties are, as of the date hereof, and will be, as of the Settlement
Closing Date, true and correct:
7.2.1 Due Organization. CEX is a corporation duly
incorporated, validly existing and in good standing, under the laws of
its jurisdiction of incorporation.
7.2.2 Due Authorization. CEX has the full corporate power and
authority to enter into and perform this Agreement and the agreements
contemplated hereby and thereby. The execution and delivery of this
Agreement and the agreements by CEX, the consummation of the
transaction contemplated hereby and thereby, and the performance by CEX
of all of its obligations under this Agreement and the agreements have
been duly authorized and approved by CEX. This Agreement has been, and
at the Settlement Closing Date the agreements to be delivered hereunder
will be, duly executed and delivered by a duly authorized officer of
CEX.
7.2.3 Enforceability. This Agreement constitutes, and the
agreements to be delivered hereunder will constitute, the legal, valid
and binding obligation of CEX in accordance with its respective terms,
except as such enforceability may be limited by applicable bankruptcy,
reorganization, moratorium, fraudulent transfer or other similar laws
affecting creditors' rights generally or by principles governing the
availability of equitable remedies.
7.2.4 No Conflict. Neither the execution and delivery of this
Agreement or the agreements to be delivered hereunder by CEX, nor the
consummation by CEX of the transactions contemplated hereby or thereby,
will violate, conflict with or result in a breach of any of the terms,
conditions or provisions of (a) CEX's certificate of incorporation, as
amended,
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by-laws, as amended, or other organizational instruments, or (b) any
obligation, lease, license, agreement, contract, plan or other
arrangement.
ARTICLE VIII
OTHER OBLIGATIONS
Section 8.1 Inspection of Records. Company shall maintain and make its
books and records available for inspection by CEX, or by its duly authorized
representatives, for reasonable business purposes at all reasonable times during
normal business hours, for a period equal to any statutorily determined record
retention period (but in no event less than eight (8) years after the Closing)
with respect to all Casualty Insurance matters related to the period through the
Effective Date. As used in this Section, the right of inspection includes the
right to make extracts or copies at the expense of the party requesting such
extracts or copies.
Section 8.2 In Trust for Company. All payments and reimbursements
including, but not limited to, amounts received under the Tax Sharing and
Indemnification Agreement, or refunds of insurance premiums, by any third party
after the Settlement Closing Date in the name of or to CEX or any of the
Continuing Affiliates to which Company or any of its Subsidiaries is entitled in
accordance with the provisions of this Agreement, and the transactions
contemplated hereby shall be held by CEX or such Affiliate in trust for the
benefit of Company and, within five (5) business days of receipt by CEX or such
Affiliate of any such payment or reimbursement, CEX or such Affiliate shall pay
over to the Company the amount of such payment or reimbursement.
Section 8.3 In Trust for CEX. All payments and reimbursements
including, but not limited to amounts received under the Tax Sharing and
Indemnification Agreement, or refunds of insurance premiums, by any third party
after the Settlement Closing Date in the name of or to Company or any of its
Subsidiaries to which CEX or any of the Continuing Affiliates is entitled in
accordance with the provisions of this Agreement, and the transactions
contemplated hereby shall be held by Company or such Subsidiary in trust for the
benefit of CEX and, within five (5) business days of receipt by Company or such
Subsidiary of any such payment or reimbursement.
ARTICLE IX
CONDITIONS PRECEDENT TO CLOSING
Section 9.1 Conditions Precedent to Buyer's and Company's Obligations.
The obligations of Buyer and Company to consummate the transactions contemplated
hereby are subject to the fulfillment of all of the following conditions on or
prior to the Settlement Closing Date (unless waived in writing in the sole
discretion of Buyer and Company):
9.1.1 Accuracy of Representations and Warranties. The
representations and warranties of CEX contained herein shall be
accurate in all material respects as if made on and as of the
Settlement Closing Date. CEX shall have delivered an Officer's
Certificate confirming
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the accuracy of such representations and warranties as of the
Settlement Closing Date (the "CEX Bring Down Certificate").
9.1.2 Financing. Buyer and/or Company shall have obtained debt
or equity financing (a) in an amount sufficient to make the payment to
CEX as required pursuant to subsection 2.1.7 of the Merger Agreement as
amended herein, and (b) in an amount sufficient in the reasonable
discretion of Buyer and/or Company to provide Company with working
capital.
9.1.3 Buyer and Company's Receipt of Closing Documents. Buyer
and Company shall have received from CEX documents referred to in
Section 11.2.
Section 9.2 Conditions Precedent to CEX's Obligations. The obligations
of CEX to consummate the transactions contemplated hereby are subject to the
fulfillment of all of the following conditions on or prior to the Settlement
Closing Date (unless waived in writing in the sole discretion of CEX):
9.2.1 Accuracy of Representations and Warranties. The
representations and warranties of Buyer and Company contained herein
shall be accurate in all material respects as if made on and as of the
Settlement Closing Date. Buyer and Company shall have delivered an
Officer's Certificate confirming the accuracy of such representations
and warranties as of the Settlement Closing Date (the "Buyer and
Company's Bring Down Certificate").
9.2.2 Absence of Litigation. No suit or proceeding shall have
been commenced by any third party to restrain, enjoin, hinder, or to
seek material damages on account of the transaction herein
contemplated.
9.2.3 CEX's Receipt of Closing Documents. CEX shall have
received from Buyer and Company documents and payment referred to in
Section 11.2.
9.2.4 Third Party Releases. Company and Buyer shall cause each
Person identified on Schedule 9.2.4 to deliver a release to CEX, in
form and substance reasonably satisfactory to CEX.
9.2.5 Equipment Leases. Company shall have paid the
obligations under the Equipment Leases for the period commencing as of
June 1, 2001 and, as of the Settlement Closing Date, shall not be in
default of any payment obligation under the Equipment Leases.
ARTICLE X
RELEASES
Section 10.1 Release from Buyer and Company to CEX. Subject to the
Settlement Closing and effective as of the Settlement Closing Date, Buyer and
Company, for themselves, their related entities, subsidiaries, affiliates,
parents, predecessors, successors and assigns (collectively, the "Buyer
Releasors"), release, acquit and forever discharge CEX, its related entities,
subsidiaries, parents, partners, joint venturers, predecessors, successors,
assigns, past
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and present officers, directors, managers, administrators, employees,
representatives, attorneys, underwriters, insurers, affiliates, stockholders,
and agents (collectively, the "CEX Releasees"), from any and all claims,
counterclaims, cross-claims, third-party claims, demands, actions, causes of
action, subrogation claims, liabilities, judgments, liens, notices of pendency,
contracts, agreements, rights, debts, loans, suits, obligations, promises,
actions, costs and expenses (including but not limited to attorneys' fees and
fines), losses or injuries, damages, injunctive relief, and all other charges of
whatever nature, whether in law or equity, whether to person or property,
whether direct, consequential or incidental, whether known or unknown, whether
fixed or contingent, whether arising heretofore, or simultaneously herewith,
which Buyer Releasors now have, claim to have had at any time heretofore or may
claim to have against CEX Releasees, including, but not by way of limitation,
arising from or related to the acquisition of Company by Buyer, including but
not limited to all claims arising from or related to the Merger Agreement, the
Guaranty Agreement, the Security Agreements, the Assumption Agreement, the
Transition Services Agreement, the Exchange Agreement, the Tax Sharing and
Indemnification Agreement, the Non-Competition Agreement and the Confidentiality
Agreement; provided, however, nothing herein shall release claims (x) arising
after the Settlement Closing Date under (i) those Ancillary Agreements that
survive as provided in Article V of this Agreement and (ii) this Agreement or
any agreements or documents executed pursuant to this Agreement or (y) arising
prior to or after the Settlement Closing Date and related solely to any customer
vendor relationship between Buyer and/or Company and CEX.
Section 10.2 Release from CEX to Buyer and Company. Subject to the
Settlement Closing and effective as of the Settlement Closing Date, CEX, for
itself, its related entities, subsidiaries, affiliates, parents, predecessors,
successors and assigns (collectively, the "CEX Releasors"), release, acquit and
forever discharge Buyer and Company, their related entities, subsidiaries (past
or present), parents, partners, joint venturers, predecessors, successors,
assigns, past and present officers, directors, managers, administrators,
employees, representatives, attorneys, underwriters, insurers, affiliates,
stockholders, and agents (collectively, the "Buyer Releasees"), from any and all
claims, counterclaims, cross-claims, third-party claims, demands, actions,
causes of action, subrogation claims, liabilities, judgments, liens, notices of
pendency, contracts, agreements, rights, debts, loans, suits, obligations,
promises, actions, costs and expenses (including but not limited to attorneys'
fees and fines), losses or injuries, damages, injunctive relief, and all other
charges of whatever nature, whether in law or equity, whether to person or
property, whether direct, consequential or incidental, whether known or unknown,
whether fixed or contingent, whether arising heretofore, or simultaneously
herewith, which CEX Releasors now have, claim to have had at any time heretofore
or may claim to have against Buyer Releasees, including, but not by way of
limitation, arising from or related to the acquisition of Company by Buyer,
including but not limited to all claims arising from or related to the Merger
Agreement, the Promissory Notes, the Guaranty Agreement, the Security
Agreements, the Assumption Agreement, the Transition Services Agreement, the
Exchange Agreement, the Tax Sharing and Indemnification Agreement, the
Non-Competition Agreement and the Confidentiality Agreement; provided, however,
nothing herein shall release claims (x) arising after the Settlement Closing
Date under (i) those Ancillary Agreements that survive as provided in Article V
of this Agreement and (ii) this Agreement or any agreements or documents
executed pursuant to this Agreement, or (y) arising prior to or after the
Settlement Closing Date
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and related solely to any customer/vendor relationship between Buyer and/or
Company and CEX.
ARTICLE XI
CLOSING
Section 11.1 Settlement Closing Date. Subject to the terms of this
Agreement, consummation of the transactions contemplated in this Agreement (the
"Settlement Closing") shall take place on July 31, 2001, or such later date as
mutually agreed to by the parties but in no event shall the Settlement Closing
be extended beyond August 31, 2001, or if the conditions to Settlement Closing
shall not have been satisfied on such date, as promptly as practicable following
the satisfaction or waiver thereof. As used herein, the Settlement Closing Date
shall refer to the date of the actual Settlement Closing. The Settlement Closing
shall be consummated at the offices of CEX at Broomfield, Colorado, or such
other place as the parties hereto shall mutually agree.
Section 11.2 Deliveries at the Closing.
11.2.1 Buyer and Company's Execution and Delivery of Documents
and Payment. Buyer and Company shall deliver, or execute and deliver,
or cause to be executed and delivered, to CEX all of the following:
(a) A certificate of valid existence and good
standing of Buyer and Company issued not earlier than thirty
(30) days prior to Closing;
(b) Buyer and Company's Bring Down Certificate;
(c) A certificate certifying to CEX the incumbency of
Buyer and Company's officers and bearing the authentic
signatures of all such officers who have executed this
Agreement or any other agreement executed and delivered in
connection herewith;
(d) Payment to CEX of the amount provided in Section
2.1.3;
(e) The releases as provided in Section 9.2.4;
(f) Evidence of compliance with the provision of
Section 4.4; and
(g) Without limitation by specific enumeration of the
foregoing, all other documents and instruments reasonably
required or requested by CEX to consummate the transactions
contemplated hereby, including any UCC search reports received
by Buyer or Company.
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11.2.2 CEX's Execution and Delivery of Documents and Payment.
CEX shall deliver, or execute and deliver, or cause to be executed and
delivered, to Buyer and Company all of the following:
(a) A certificate of valid existence and good
standing of CEX issued not earlier than thirty (30) days prior
to Closing;
(b) CEX's Bring Down Certificate;
(c) A certificate certifying to Buyer and Company the
incumbency of CEX's officers and bearing the authentic
signatures of all such officers who have executed this
Agreement or any other agreement executed and delivered in
connection herewith;
(d) Evidence of compliance with the provision of
Section 4.4;
(e) UCC-3 Termination Statements for each UCC-1
Financing Statement identified in Schedule 4.3, and provided
by Buyer and Company duly executed by CEX;
(f) The Promissory Notes; and
(g) Without limitation by specific enumeration of the
foregoing, all other documents and instruments reasonably
required or requested by Buyer or Company to consummate the
transactions contemplated hereby.
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ARTICLE XII
INDEMNIFICATION
Section 12.1 Indemnification by CEX. Subject to the remaining
provisions of this Article XII and this Settlement Agreement, from and after the
Settlement Closing Date, CEX shall indemnify and hold harmless Buyer, Company
and its Subsidiaries, past and present, and their respective directors,
officers, employees and each of the heirs, executors, successors and assigns of
any of the foregoing (collectively, the "Buyer Indemnified Parties") from and
against any and all damages, liabilities, losses, obligations, suits, demands,
penalties, charges, costs and expenses (including reasonable attorneys' fees and
expenses and court costs incurred in the investigation, defense or settlement or
any of the foregoing in connection with any third party proceeding relating
thereto to the extent hereafter provided) (collectively, "Losses") incurred in
connection with, arising out of, or resulting from (a) any failure by CEX or its
Subsidiaries or Continuing Affiliates to comply, in whole or in part, with the
covenants or agreements made by CEX in this Agreement or any Ancillary Agreement
that survives, as provided herein, and (b) any guaranty or other obligation of,
or any pledge, security interest, mortgage or other lien on the property, assets
or capital stock of, Company or any of its Subsidiaries securing or guaranteeing
any indebtedness or other obligation of CEX or any Continuing Affiliate under
any loan agreement or credit facility. Without limiting the foregoing and unless
otherwise agreed by the parties, in the event any Buyer Indemnified party is a
named defendant in any proceeding that is the subject of the indemnification
obligations of this Section 12.1, CEX shall use its commercially reasonable best
efforts to have such Buyer Indemnified Party promptly removed as a party to such
litigation.
Section 12.2 Indemnification by Buyer and Company. Subject to the
remaining provisions of this Article XII and this Agreement, Buyer and Company
shall jointly and severally indemnify and hold harmless CEX, any Continuing
Affiliate and each of their respective directors, officers, employees and
agents, and each of the heirs, executors, successors and assigns of any of the
foregoing (collectively, the "CEX Indemnified Parties") from and against any and
all Losses incurred in connection with, arising out of, or resulting from (a)
except as provided under this Agreement and not paid and discharged by CEX prior
to the Settlement Closing Date, current, former or future businesses, assets,
liabilities, operations, other activities or employees (whether current or
former) of the Company, Buyer or any of their Subsidiaries, relating to Company
or Buyer or to any of the discontinued operations of Company or any of its
current or former Subsidiaries and including any claim by any equity or debt
holder of, or lender to, Company or Buyer, arising out of any of the
transactions pursuant to the Merger Agreement or Ancillary Agreements, and (b)
any failure to comply, in whole or in part, with the covenants or agreements
made by Buyer or Company in this Agreement or in any Ancillary Agreement that
survives, as provided herein. Except as expressly provided under this Agreement,
the parties hereby agree that the obligation of Buyer and Company under this
Section 12.2 shall include any claim for Losses asserted against the CEX
Indemnified Parties, as an acquiror, owner or operator, either derivatively or
directly, by way of CEX, its Affiliates', and their respective Representatives'
previous ownership or acquisition of or control over Company or any of its
Subsidiaries, or their participation in the operations, acquisitions or
activities of
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Company or any of its Subsidiaries. Without limiting the foregoing and unless
otherwise agreed by the parties, in the event any CEX Indemnified Party is a
named defendant in any proceeding that is the subject of the indemnification
obligations of this Section 12.2, Buyer and Company shall use their commercially
reasonable best efforts to have such CEX Indemnified party promptly removed as a
party to such litigation.
Section 12.3 Procedure for Third Party Claims.
12.3.1 In order for a Person (the "indemnified party") to be
entitled to any indemnification pursuant to this Article XII in respect
of, arising out of or involving a claim or demand made by any Person
against the indemnified party (a "Third Party Claim"), such indemnified
party must notify the indemnifying party in writing of (and in
reasonable detail regarding) the Third Party Claim promptly, and in any
event within ten (10) business days, after receipt by such indemnified
party of notice of the Third party Claim; provided, however, that
failure to give such notification shall not affect the indemnification
otherwise provided under this Agreement except to the extent the
indemnifying party shall have been actually prejudiced as a result of
such failure (except that the indemnifying party shall not be liable
for any expenses incurred prior to the day on which the indemnified
party gives such notice). Thereafter, the indemnified party shall
deliver to the indemnifying party promptly, and in any event within
five (5) business days, after the indemnified party's receipt thereof,
copies of all notices and documents (including court papers) received
by the indemnified party relating to the Third Party Claim.
12.3.2 If a Third Party Claim is made against an indemnified
party, the indemnifying party shall be entitled to participate in the
defense thereof and, if it so chooses, to assume and control the
defense thereof with counsel selected by the indemnifying party. Other
than as provided in Section 12.1, (a) if the indemnifying party elects
to assume the defense of a Third Party Claim, the indemnifying party
shall not be liable to the indemnified party for legal expenses
subsequently incurred by the indemnified party in connection with the
defense thereof, and (b) if the indemnifying party assumes such
defense, the indemnified party shall have the right to participate in
the defense thereof and to employ at its own expense counsel not
reasonably objected to by the indemnifying party separate from the
counsel employed by the indemnifying party, it being understood that
the indemnifying party shall control such defense, and shall be
empowered to make any settlement with respect to such Third Party
Claim, subject to the remaining terms of this Section 12.3.2. The
indemnifying party shall be liable for the reasonable fees and expenses
of counsel employed by the indemnified party for any period during
which the indemnifying party has not assumed the defense thereof (other
than the period prior to the day on which the indemnified party gives
notice of the Third Party Claim as provided above). If the indemnifying
party chooses to defend or prosecute any Third Party Claim, all the
parties hereto shall cooperate and shall cause their Affiliates to
cooperate in the defense or prosecution thereof. Such cooperation shall
include the retention and (upon the indemnifying party's request) the
provision to the indemnifying party of records and information that are
reasonably relevant to such Third Party Claim, and making employees
available on any basis reasonably requested by the indemnifying party
to provide additional information and explanation of any material
provided hereunder or otherwise relating to the Third Party Claim.
Whether or not the indemnifying party assumes the defense of a Third
Party Claim, the
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indemnified party shall not admit any liability with respect to, or
settle, compromise or discharge, such Third Party Claim without the
indemnifying party's written consent. If the indemnifying party assumes
the defense of a Third Party Claim, the indemnified party shall agree
to any settlement, compromise or discharge of such Third Party Claim
that the indemnifying party may recommend if such settlement,
compromise or discharge would only result in the entry of a monetary
judgment for which the indemnified party is fully indemnified
hereunder.
12.3.3 In the event any indemnified party should have an
indemnification claim against any indemnifying party under this
Agreement that does not involve a Third Party Claim being asserted
against or sought to be collected from such indemnified party, the
indemnified party shall deliver notice of such claim specifying with
particularity the facts underlying such claim with reasonable
promptness to the indemnifying party. The failure by any indemnified
party so to notify the indemnifying party shall not relieve the
indemnifying party from liability that it may have to such indemnified
party, except to the extent that the indemnifying party has been
actually prejudiced by such failure. If the indemnifying party disputes
its liability with respect to such claim, the indemnifying party and
the indemnified party shall proceed in good faith to negotiate a
resolution of such dispute and, if not resolved through negotiations,
such dispute shall be resolved by litigation in an appropriate court of
competent jurisdiction.
12.3.4 Notwithstanding anything to the contrary in the
foregoing, either Buyer, Company or CEX, at its own expense except as
otherwise provided above, shall be entitled to participate in the
defense of any litigation matters in which the other party is named as
a party and shall be consulted on any settlement discussions with
respect thereto.
Section 12.4 General Provisions Relating to Remedies and
Indemnification.
Section 12.4.1 An indemnifying party shall have no obligation
to indemnify an indemnified party or otherwise have liability to an
indemnified party for consequential damages, special damages, punitive
damages, incidental damages, indirect damages, lost profits or similar
items (and the indemnified party shall not recover for such amounts).
Section 12.4.2 To the extent that CEX or Buyer discharges any
claim for indemnification hereunder, it shall be subrogated to all
related rights of the other party against third parties except as
otherwise provided herein.
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ARTICLE XIII
MISCELLANEOUS
Section 13.1 Entire Agreement. This Agreement (including its
Schedules), the Tax Sharing and Indemnification Agreement, the Non-Competition
Agreement, the Confidentiality Agreement, the Assumption Agreement and the
agreements expressly provided for herein and therein constitute the entire
agreement between the parties and supersede any and all other prior or
contemporaneous understandings, negotiations or agreements between the parties
relating to the transactions contemplated hereby, and shall be binding upon, and
inure to the benefit of the parties hereto and their respective legal
representatives.
Section 13.2 Amendments. Any amendment, supplement, variation,
alteration or modification to this Agreement must be made in writing and duly
executed by an authorized representative or agent of each of the parties hereto.
Section 13.3 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any other jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 13.4 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall be deemed to constitute one and the same instrument.
Section 13.5 No Waiver. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants or conditions of
this Agreement, to exercise any right or privilege in this Agreement conferred,
or to waive any breach of any of the terms, covenants or conditions of this
Agreement, shall not be construed as a subsequent waiver of any such terms,
covenants, conditions, rights or privileges, but the same shall continue and
remain in full force and effect as if no such forbearance or waiver had
occurred. No waiver shall be effective unless it is in writing and signed by an
authorized representative of the waiving party.
Section 13.6 Assignment. This Agreement and all the rights and
obligations granted hereby shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, it being expressly agreed
that this Agreement shall not be assigned nor shall any rights or obligations
arising hereunder be transferred by one party without the prior written consent
of the other party.
Section 13.7 Fees, Costs and Expenses. Each party shall be responsible
for its own fees, costs and expenses incurred by it in connection with this
Agreement.
Section 13.8 Third Party Beneficiaries. Except for the Persons released
under or entitled to indemnification pursuant to this Agreement and the Tax
Sharing and Indemnification Agreement (who shall be third party beneficiaries),
nothing in this Agreement is intended to
16
create, nor shall anything in this Agreement be deemed to create or have
created, any third party beneficiary rights.
Section 13.9 Construction. Words importing the singular shall include
the plural and vice versa, and words importing a gender shall include other
genders. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine or neuter form. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." The headings contained in this Agreement are inserted for
convenience only and shall not constitute a part hereof or affect any
interpretation hereof. All references herein to Articles, Section and
subsections shall be deemed to be references to Articles, Sections and
subsections of this Agreement unless the context shall otherwise require.
References in this Agreement to any Article shall include all subsections and
paragraphs in such Section and references in this Agreement to any subsection
shall include all paragraphs in such subsection. The exhibits and attachments to
the Schedules form an integral part of the Schedules and are incorporated by
reference for all purposes as if set forth fully therein. Unless the context
shall otherwise require or provide, any reference to any agreement or other
instrument or statute, regulation or other Law is to such agreement, instrument,
statute, regulation or other Law as amended and supplemented from time to time
(and, in the case of a statute, regulation or other Law, to any successor
provision); provided, however, that no representation or warranty herein shall
be deemed to have been breached because of the adoption of any new statute,
regulation or other Law, any amendment of or change in any statute regulation or
other Law or any change in interpretation of any statute, regulation or other
Law, in any event, issued or otherwise occurring subsequent to the date hereof.
This Agreement shall be construed in accordance with its fair meaning and shall
not be construed strictly against either party, without regard to which party
drafted this Agreement.
Section 13.10 Consent to Jurisdiction and Related Matters.
(a) Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property,
to the jurisdiction of any Colorado state court or Federal court
sitting in the State of Colorado and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby or for recognition or
enforcement of any judgment relating thereto, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in
such Colorado State court or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(b) Venue. Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of
relating to this Agreement or the transactions contemplated hereby in
any Colorado State or Federal court. Each of the parties hereto hereby
irrevocably and unconditionally waives, to the fullest extent permitted
by law, the defense of any inconvenient forum to the maintenance of
such action or proceeding in any such court.
17
Section 13.11 Waiver of Jury Trial.
(a) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(b) EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (1) NO
REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE WAIVERS SET FORTH IN CLAUSE (a) OF
THIS SECTION 13.11, (2) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (3) IT MAKES SUCH WAIVERS VOLUNTARILY,
AND (4) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN SUCH SECTION.
Section 13.12 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given when personally
delivered, five (5) business days after mailing when mailed by certified mail,
return receipt requested, or one (1) business day after sending via Federal
Express or similar overnight courier service, or when receipt is confirmed when
sent by facsimile. Such notices or other communications shall be sent to the
following addresses, unless other addresses are subsequently specified in
writing:
Buyer and Company:
United Shipping & Technology, Inc.
0000 00xx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxx, Esq.
Fax No.: (000) 000-0000
Phone: (000) 000-0000
CEX:
Corporate Express, Inc.
0 Xxxxxxxxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
Phone: (000) 000-0000
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Section 13.13 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONTROLLED AS TO ITS VALIDITY, ENFORCEMENT, INTERPRETATION, CONSTRUCTION, EFFECT
AND IN ALL OTHER RESPECTS BY THE LAWS OF THE STATE OF COLORADO (WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THEREOF) APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE.
Section 13.14 Further Assurances. The parties shall execute such
further documents and perform such further acts, as may be necessary to effect
the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CORPORATE EXPRESS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
VELOCITY EXPRESS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
UNITED SHIPPING & TECHNOLOGY, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
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