EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made this _____ day
of November, 2002, by and among GREAT PLAINS ACQUISITION CORPORATION, a Nevada
corporation , a subsidiary of ORDERPRO LOGISTICS, INC. corporation (collectively
the "Buyer"), and GREAT PLAINS TRANSPORTATION, INC., a Kansas ("Great Plains")
and XXXX XXXXX (collectively the "Seller" or "Owner").
RECITALS:
The Seller is engaged in the trucking business and operates as a contract
carrier of general commodities in 48 of the United States, both over the public
highways and over railroad lines (collectively the "Business"); and
Xxxx Xxxxx is the President, sole director and sole shareholder of Great
Plains; and
The principal place of business of the Seller is located at 0000 Xxxxxxxx
Xxxx, #00, Xxxxxxx, Xxxxxx, 00000; and
The Buyer desires to purchase substantially all of the business assets of
Great Plains and the Seller and the desires to sell such business assets for the
price and upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
undertakings, warranties, representations, covenants and agreements hereinafter
contained, the parties hereby agree as follows:
ARTICLE 1. ASSET PURCHASE AND SALE
1.1. ASSETS TO PURCHASE. Subject to the terms and conditions hereof, the
Seller agrees on the Closing (as hereinafter defined) to assign, sell, transfer,
convey, and deliver to the Buyer, free and clear of all liens and encumbrances,
and the Buyer hereby agrees on the Closing to purchase from the Seller, all of
the assets and personal property of Great Plains (excepting only the assets
specifically hereinafter identified as "Excluded Assets") related to or used in
the operation of the Business, wherever the same may be located (collectively
referred to as the "Purchased Assets"), including, without limitation, the
following:
1.2. FIXED ASSETS. All fixed assets, office furniture, fixtures, and
equipment, computer system hardware and ancillary equipment, telephone equipment
and fixtures, and equipment, including, without limitation, the trailers and the
other assets and properties described below; identified on Exhibit 1.2
(collectively the "Fixed Assets");
1993 Wabash 53' dry van #_______ Serial # _______
1993 Wabash 53 dry van semi-trailer #________ Serial # _______
l990 Great Dane 48' dry van #________ Serial # _______
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1.3. INTANGIBLE PROPERTY. All intangible personal property, including all
business records (necessary to operate the business) computer programs and
software; prepaid insurance; freight orders in process; customer contracts;
published tariffs; customer and vendor lists and all records related thereto;
customer list data base; telephone numbers and fax line numbers; post office box
numbers and lease rights; goodwill; and other miscellaneous assets now used in
the conduct of the Business (collectively the "Intangible Property");
1.4. INTELLECTUAL PROPERTY. Business names, trade names, and assumed names
(including without limitation the names "Great Plain Transportation") and all
other names and slogans embodying business or product goodwill.
1.5. LICENSES AND PERMITS. All permits, licensing approvals, and
notifications, governmental or otherwise, relating to the Business (collectively
the "Licenses and Permits");
1.6. CONTRACTS. All rights arising under contracts, (broker agreements)
whether written or oral, including any tangible personal property leases, under
which Seller is the beneficiary, including without limitation those contracts
and leases identified on Exhibit 1.6. hereto (collectively the "Contracts");
1.7. MISCELLANEOUS ASSETS. Any other miscellaneous assets related to the
Business (collectively the "Other Assets").
1.8. EXCLUDED ASSETS. Notwithstanding anything herein to the contrary, the
Buyer does not purchase, and the Seller does not sell, any of the following
assets ("Excluded Assets"); the Seller's cash on hand or on deposit with any
financial institution or invested in any money market fund; Accounts receivable
and notes receivable from any source whatsoever arising in the operation of the
Business (the "Accounts Receivable"); the Seller's corporate minute books stock
records, tax records.
1.9. NO LIABILITIES AND OBLIGATIONS ASSUMED. Except as specifically
provided herein, the Buyer shall not assume any liabilities, obligations, or
undertakings of the Seller of any kind or nature whatsoever, whether fixed or
contingent, known or unknown, determined or determinable, due or not yet due,
including, but not limited to, any accounts payable, notes payable, accrued
payroll, or any obligations to the Seller's employees such as accrued and unused
sick pay, vacation pay, holiday pay or personal days pay, accrued and unpaid
commissions, fees, or other compensation, any federal, state, or local taxes,
including but not limited to any payroll taxes, sales taxes and income taxes
incurred by the Seller and/or the Shareholder in the operation of the Business
through the Closing (collectively the "Seller's Liabilities").
Buyer will continue to rent the premises occupied by the Seller, on a month
to month basis and shall give 60 days notice of their intent to vacate the
premises. Buyer shall indemnify and hold Seller harmless from any liability
arising from its occupancy of the premises after Closing.
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ARTICLE 2. PURCHASE PRICE AND PAYMENT.
2.0 PURCHASE PRICE. The purchase price ("Purchase Price") for the Purchased
Assets shall be Two hundred and sixty-five thousand and no/100 Dollars
($265,000) and paid by the Buyer.
2.1 PAYMENT. The Buyer shall pay the Purchase Price as follows:
(a) At the Closing, the Buyer shall pay to the Seller and/or the Owner
by cashier's check or by wire transfer of immediately available funds the sum of
$40,000.
(b) At the Closing, the Buyer shall execute and deliver to the Seller
its promissory note, from OrderPro Logistics, Inc., in the amount of $35,000
which note shall provide that the Seller will redeem said note within 90 days
after closing.
(c) At the Closing, the Buyer shall execute and deliver to the Seller a
Convertible Debenture, from OrderPro Logistics, Inc., in the amount of One
Hundred and Ninety Thousand and no/100 Dollars ($190,000) in the form attached
hereto as Exhibit 2.1 (the "Debenture"), which shall bear interest at the rate
of seven percent (7.0%) per annum, shall be payable in within 36 months after
Closing. This Debenture may be converted by the Holder one year after Closing
and before Maturity Date at a conversion rate of Nine hundred and fifty thousand
(950,000) shares of Company Common Stock (the "Shares"). No accrued interest
will be paid upon the conversion. The Shares issuable upon conversion of the
Debenture will be freely tradable stock.
3.2 ALLOCATION OF ASSET PURCHASE PRICE. The Asset Purchase Price will be
allocated by the Buyer among the Purchased Assets in the following manner:
Rolling Stock $________________
Other Assets $________________
Goodwill $________________
Total $265,000.
The Buyer and the Seller further agree to report this transaction for tax
purposes in accordance with such allocation and to sign the Forms 8594 attached
hereto as Exhibit 3.2 and file such forms with their respective income tax
returns for the taxable year of reporting this transaction.
3.3 CONSULTING/NON-COMPETITION AGREEMENT. At Closing the Seller and Xxxx
Xxxxx will enter into a Consulting and Non-Competition Agreement ("Consulting
Agreement"), identified in Exhibit 3.3, which shall be for a period of three (3)
years and renewable by mutual consent and shall contain language as to the
following;
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(a) COMMISSION. The Buyer shall pay a commission on net freight revenue
produced by the US Salt Holding, LLC and on any other produced by Seller.
Commission earned on US Salt shall be based on annual revenue exceeding
$750,000; and all other accounts; Commission is a 20%/80% split of gross profit.
Example - if the load pays $1,000 and Buyer pays the trucking company* $700,
gross profit is $300, then the commission is 20% of the $300 or $60. (* trucking
company also means owner-operators and company trucks [paid at same rate as
owner-operators]).
(b) NON-COMPETE. During the period of consulting and 2 years thereafter
the Seller agrees not to not to compete with the Business.
ARTICLE 4. CLOSING.
4.1 CLOSING. The "Closing Date" shall mean the date of the Closing which
shall occur on or about November 15, 2002, at a time and place as the parties
may mutually agree upon.
4.2 DOCUMENTS TO BE DELIVERED BY SELLER AND THE OWNER. The Seller and the
Owner agree to deliver to the Buyer at the Closing the following documents, in
form and substance reasonably satisfactory to the parties and their respective
counsel, duly executed as appropriate:
4.2.1. CERTIFICATES OF GOOD STANDING for each Seller issued by the
Secretary of the State of each State in which any Seller is registered as a
foreign corporation, dated no earlier than thirty (30) days prior to the
Closing;
4.2.2. AUTHORIZING RESOLUTIONS. Certified copy of corporate resolutions
of Seller's sole shareholder and sole director authorizing said Seller to enter
into this Agreement and to consummate the transactions contemplated herein;
4.2.3. XXXX OF SALE AND CERTIFICATE OF TITLE. Xxxx of Sale for the
assignment and transfer of the Purchased Assets; and Certificates of Title for
each trailer and each other unit of transportation equipment, free and clear of
all liens and encumbrances;
4.2.4. ASSIGNMENTS. Appropriate assignment documents assigning all of
the Seller's right, title and interest in the Intangible Property, Intellectual
Property, Licenses and Permits, Contracts, Advertising Materials, Prepaid
Assets, and Other Assets including written consent to such assignments, if
required by the terms thereof;
4.2.5. CERTIFICATE OF WARRANTIES AND REPRESENTATIONS. Certificate of
President of Seller regarding warranties and representations as required under
Section 8.1.1;
4.2.6. RELEASE OF LIENS. Termination Statement, Satisfaction, or
Release, executed by the Secured Party named thereon and in form for filing, for
every UCC-1 Financing Statement on file with any state or local filing authority
naming the Seller as the debtor party and claiming an interest in any of the
Purchased Assets;
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4.2.7. CONSULTING AGREEMENT AND NON-COMPETITION AGREEMENT. The
Consulting Agreement duly executed by the Owner;
4.2.8. REAL ESTATE LEASE. The real estate lease attached hereto as
Exhibit 4.2.10. (the "Real Estate Lease") duly executed by the Lessor;
4.2.9. PREPAID ASSETS. A schedule describing all of the Prepaid Assets
in detail as of the Closing.
4.3 DOCUMENTS TO BE DELIVERED BY THE BUYER. The Buyer agrees to deliver to
the Seller at the Closing the following documents, in form and substance
reasonably satisfactory to the parties and their respective counsel, duly
executed as appropriate:
4.3.1. AUTHORIZING RESOLUTIONS. Certified copy of corporate resolutions
of the Buyer authorizing the Buyer to enter into this Agreement and to
consummate the transactions contemplated herein;
4.3.2. PAYMENT. Payment of the Purchase Price in the amount and form as
required by Section 3.1.2 hereof;
4.3.3. CONSULTING AND NON-COMPETE AGREEMENT. The Consulting Agreement
duly executed by the Buyer;
4.3.4. CERTIFICATE OF WARRANTIES AND REPRESENTATIONS. Certificate of
the President of the Buyer regarding warranties and representations as required
under Section 8.2.1;
4.3.5. OTHER DOCUMENTS. Such other documents as the Seller may
reasonably request to carry out the transactions contemplated under this
Agreement.
ARTICLE 5. POST-CLOSING OBLIGATIONS.
5.1 FURTHER DOCUMENTS AND ASSURANCES. At any time and from time to time
after the Closing, each party shall, upon request of another party, execute,
acknowledge, and deliver all such further and other assurances and documents,
and will take such action consistent with the terms of this Agreement, as may be
reasonably required to carry out the transactions contemplated herein and to
permit each party to enjoy its rights and benefits hereunder.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES.
6.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE OWNER.
Notwithstanding the Buyer's due diligence investigation or the Buyer's knowledge
of any misrepresentation or breach hereof, the Seller and the Owner make the
following representations and warranties to the Buyer with the intention that
the Buyer may rely upon the same and acknowledge that the same shall be true on
the date hereof (unless specified as being true only upon Closing) and as of the
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Closing (as if made at the Closing) and shall survive the Closing, except as
specifically set forth on the Disclosure Schedule attached hereto as EXHIBIT 6.1
and initialed by the parties. The Disclosure Schedule shall be arranged in
paragraphs corresponding to the paragraph numbering of this Section 6.1 and the
exceptions shall be limited to the specific terms thereof as expressed with
respect to each respective paragraph hereof.
6.1.1. ORGANIZATION. Great Plains Transportation, Inc. is a corporation
which has been duly organized is validly existing, and is in good standing under
the laws of the State of Kansas, and has all requisite power and authority,
corporate and otherwise, and possess all necessary government licenses, permits,
franchises and approvals necessary, to own and lease its properties and assets
and to conduct the businesses in which it is presently engaged.
6.1.2. BINDING OBLIGATION AUTHORITY. This Agreement, the Consulting
Agreement and Non-Competition Agreement, and all collateral documents constitute
the legal, valid, and binding obligation of the Seller and/or the Owner,
enforceable in accordance with the terms thereof.
6.1.3. FINANCIAL CONDITION.
(a) The Seller has furnished the Buyer with (1) all financial
statements, including balance sheets and income statements, statement of cash
flows and notes to financial statements prepared by the Seller's accountants for
the years ended December 31, 2000, 2001 and internally-prepared monthly
financial statements for interim periods from January 1, 2002 through September
30, 2002 (collectively the "Financial Statements"); and (2) all federal, state,
and other tax returns filed by, or with respect to, the Seller for each of the
years 2000 and 2001 inclusive (collectively the "Tax Returns").
(b) The Financial Statements are prepared from and in accordance
with the books and records of the Seller. The Financial Statements are true and
correct, accurately reflect the income and expenses of the Seller for the
periods covered thereby fairly represent and present in all material respects
the financial condition of the Seller as of the dates thereof and the results of
operations of the Business and the Seller for the periods covered thereby. For
purposes of this Agreement, the Financial Statements shall be deemed to include
any notes thereto. To the knowledge of the Seller and the Owner, no liabilities
of the Seller, whether absolute, contingent, known or unknown, which existed
during the periods indicated have been omitted from the Financial Statements.
6.1.4. BOOKS AND RECORDS. The Seller's books of account and records
(including customer order files, employment records, and sale, purchase, and
warehousing records) are complete, true, and correct in all material respects
and are consistently maintained in the ordinary course of business.
6.1.5. TAX REPORTS, RETURNS, AND PAYMENT. The Seller has accurately
prepared and timely filed all federal and applicable state, local, and foreign
tax or assessment reports and returns of every kind known to the Seller to be
required to be filed. The Seller has promptly paid and is not delinquent with
respect to payment of any taxes, duties, and charges based on the income,
purchase, sales, business, payroll, or assets of the Seller. There are no
disputes with any governing authority as to taxes of any nature payable by the
Seller.
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6.1.6. TITLE TO PURCHASED ASSETS. Seller holds valid title to the
Purchased Assets free and clear of all liens, encumbrances, licenses or leases
and the Buyer shall have the right to take possession of the Purchased Assets
immediately after the Closing.
6.1.7. ASSETS USED IN THE BUSINESS; GOOD CONDITION AND REPAIR. The
Purchased Assets include all of the assets used by Seller in the conduct of the
Business, except for the Excluded Assets. Substantially all of the Purchased
Assets are in good condition and repair and in the case trailers that constitute
the Seller's "rolling stock," are road worthy, are useable in the ordinary
course of the business and are in condition to pass all applicable safety tests.
6.1.8. CONDUCT OF BUSINESS. The Seller has conducted and will conduct
its operations up to and including the Closing in the same manner in which it
has heretofore conducted such operations. Specifically, the Seller has not, and
will not, without prior written approval of the Buyer, take any action; Entering
into any contract, lease, commitment or the like, without the Buyer's prior
written consent, committing the Buyer to material future expenditures, except
the acquisition of Inventory in the ordinary course of business;
6.1.9. LICENSES AND PERMITS. To the best of the Seller's knowledge,
Seller possesses all Licenses and Permits, approvals, and notifications,
governmental or otherwise, the absence of which would have a material adverse
effect on the Business. The Buyer shall be responsible to obtain all necessary
Licenses and Permits to operate the Business after the Closing (and the Closing
is conditioned upon the Buyer's ability to obtain such Licenses and Permits).
6.1.10. AGREEMENTS, ARRANGEMENTS, CONTRACTS, AND COMMITMENTS. The
Seller is not a party to or bound by any agreement, arrangement, contract or
commitment involving any covenants by the Seller or the Owner not to compete in
any lines of business or with any person or business entity;
Except as provided therein, each agreement, arrangement, contract or
commitment referred to in the Disclosure Schedule is terminable pursuant to the
terms of the contract without penalty, cost, or liability with written notice
not exceeding thirty (30) days. Except as provided therein, the Seller is not in
material breach (nor has it received notice of a claim that it is in material
breach) of any contracts identified in the Disclosure Schedule as not terminable
on thirty (30) day's written notice. Except as provided therein, all agreements,
arrangements, contracts and commitments referred to in the Disclosure Schedule
are assignable without consent of any person and such consents, if any, as are
required shall be obtained by the Seller prior to the Closing.
6.1.11. CHANGE IN CUSTOMERS OR VENDORS. No customer or vendor has
indicated to the Seller that it intends to cease doing business with the Seller
or materially alter the amount or pricing of business done with the Seller.
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6.1.12. INSURANCE. The Seller has maintained, and will continue to
maintain until the Closing, insurance coverage as to public liability, cargo,
and on the Seller's personal property and assets, whether owned or leased,
against loss or damage by fire or other casualty, in amounts of coverage
presently in force. All such insurance is in full force on the date of this
Agreement, is carried with reputable insurers, and there are no premium payments
past due thereon. The Seller has promptly and adequately notified the Seller's
insurance carriers of any and all claims known to the Seller with respect to the
operations, products or services of the Seller for which the Seller is insured.
The Seller will deliver to the Buyer at the Closing a letter or letters from its
insurance carriers which confirms that all of the Seller's insurance policies
relating to the Business and the Purchased Assets are freely assignable to the
Buyer at the Closing (and such letter or letters will include the consent to
such assignment from the insurance carriers, if such consent is required). At
the Closing, the Seller shall deliver certificates of insurance from all of such
insurance carriers which names the Buyer as the insured and which names the
Seller as an additional insured under all collision and general liability
insurance policies.
6.1.13. LITIGATION. There is no pending litigation against the Seller
or the Owner, nor to the knowledge of the Seller or the Owner any adverse claims
which may lead to litigation, relating to any aspect of the Business, the
Purchased Assets. or the Membership Interests, except as disclosed in Exhibit
6.1 hereto. There are no proceedings, arbitrations, hearings or investigations,
against the Seller at the Business, the Purchased Assets or the Membership
Interests at law or in equity or by any court or governmental entity of any
kind, nor to the knowledge of the Seller or the Owner, no such matter is
threatened, except as disclosed in Exhibit 6.1 hereto.
6.1.14. LAWS AND REGULATIONS. The Seller has not received any notice
of, and the Seller and the Owner have no knowledge of, any sort of alleged
violation of any Laws relating to the Business or the Purchased Assets.
6.1.15. BROKERS. The Seller and the Owner have not engaged the services
of any broker or finder in connection with the transactions described in this
Agreement.
6.1.16. COMPLETENESS OF DISCLOSURE. No representation in this Section
6.1 contains any untrue statement of a fact or omits to state any fact, the
omission of which would be misleading.
6.1.17. RISK OF LOSS. The Seller assumes all risk of destruction, loss,
or damage to the Purchased Assets due to fire, wind, storm, or other casualty up
to the Closing.
6.1.18. CONDITIONS AFFECTING THE BUSINESS. There is no fact,
development, or threatened development with respect to the markets, products,
services, clients, customers, facilities, computer software, data bases,
personnel, vendors, suppliers, operations, assets or prospects of the Business
which are known to the Seller or the Owner which are reasonably likely to
adversely affect the Business. The Seller and the Owner have used their best
efforts to keep available for the Buyer the customers and suppliers of the
Seller. The Seller and the Owner have no reason to believe that consummation of
the transactions contemplated herein will result in the loss of any customer,
supplier, or other advantageous arrangement relating to the Business.
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6.2 REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer makes the
following representations and warranties to the Seller with the intention that
the Seller may rely upon the same and acknowledges that the same shall be true
on the date hereof and as of the Closing (as if made at the Closing) and shall
survive the Closing.
6.2.1. ORGANIZATION. The Buyer, to be formed prior to Closing, is a
corporation, duly organized, validly existing, and in good standing under the
laws of the State of Nevada, and has all requisite power and authority,
corporate and otherwise, and possesses all necessary government licenses, to own
and lease its properties and assets and to conduct the business in which it is
present engaged.
6.2.2. CORPORATE AUTHORITY. This Agreement, the Consulting Agreement,
the Non-Competition Agreement, and all collateral documents constitute the
legal, valid, and binding obligation of the Buyer enforceable in accordance with
the terms thereof. The Buyer has all requisite corporate power and authority,
including the approval of its board of directors, to execute, perform, carry out
the provisions of, and consummate the transactions contemplated in this
Agreement.
6.2.3. BREACHES OF CONTRACTS; REQUIRED CONSENTS. Neither the execution
and delivery of this Agreement, the Consulting Agreement by the Buyer, nor
compliance by the Buyer with the terms and provisions thereof, will: (a)
conflict with or result in a breach of any of the terms, conditions, or
provisions of the Articles of Incorporation, Bylaws, or other governing
instruments of the Buyer; any judgment, order, decree, or ruling to which the
Buyer is a party or by which it is bound; any law, rule, regulation or
injunction of any court or governmental authority to which the Buyer is subject;
or any mortgage, agreement, contract, lease, or commitment which is material to
the financial condition of the Buyer; or (b) require the affirmative consent or
approval of any third party.
6.2.4. BROKERS. The Buyer has not engaged the services of any broker or
finder in connection with the transactions described in this Agreement.
6.2.5. COMPLETENESS OF DISCLOSURE. No representation in this Section
6.2 contains any untrue statement of a fact or omits to state any fact, the
omission of which would be misleading.
ARTICLE 7. CONDUCT AND TRANSACTION OF BUSINESS PRIOR TO CLOSING.
7.1 ACCESS TO INFORMATION. During the period prior to the Closing, the
Seller shall give to the Buyer and its attorneys, accountants, or other
authorized representatives, access to all of its property, books, contracts,
commitments, and records and shall furnish to the Buyer during such period all
such information as the Buyer may request.
7.2 RESTRICTIONS IN OPERATION OF THE BUSINESS. The Seller represents and
covenants that:
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7.2.1. EMPLOYEE OBLIGATIONS. Seller has paid, and will pay, the
employee payroll for all hours worked through the Closing, all sales commissions
earned for sales made through the Closing, all accrued and unused vacation, sick
or other benefit pay and all bonuses or additional compensation due to its
employees for services performed, or related to employment occurring prior to
the Closing, and owner/operator settlements will be pro-rated at closing.
7.2.2. PRESERVATION OF THE BUSINESS. The Seller has used, and will use,
its best efforts to preserve the business organization and assets of the
Business and not to impair relationships with customers, vendors, and others
having business relations with the Business.
ARTICLE 8. CONDITIONS OF CLOSING
8.1 CONDITIONS TO OBLIGATION OF THE BUYER TO PROCEED WITH THE CLOSING. The
obligations of the Buyer to proceed with the Closing shall be subject to the
satisfaction, on or prior to the Closing, of all of the following conditions,
any of which may be waived by the Buyer in its sole discretion:
8.1.1. ACCURACY OF REPRESENTATIONS; Certificate of President. The
representations and warranties of the Seller and the Owner herein contained are
true in all respects both at signing and as of the Closing and the Seller has
fulfilled and performed all obligations and complied with all covenants and
conditions prior to or as of the Closing. The Seller shall have delivered to the
Buyer a certificate in form and substance satisfactory to the Buyer dated as of
the Closing and executed by the President of the Seller to all such effects.
8.1.2. CONSULTING AND NON-COMPETE AGREEMENT. The Owner shall have
entered into the Consulting Agreement in the form attached hereto as Exhibit
3.3.
8.1.3. RELEASE OF SECURED CLAIMS AND MORTGAGES. The Seller shall have
obtained full and complete releases of all liens, security interests, mortgages,
or other encumbrances upon the Purchased Assets.
8.1.4. REQUIRED CONSENTS AND LICENSES. All required consents and
licenses shall have been obtained by the Buyer from governmental agencies whose
approval is required to consummate the transactions contemplated herein and from
each person or entity, including without limitation the Federal and State
licenses to operate the Business on an interstate and intrastate basis,
respectively.
8.1.5. CHANGE OF NAME. Great Plains Transportation, Inc. shall have
prepared and filed with the Kansas Secretary of State suitable documents
amending their Articles of Incorporation to change Great Plains Transportation,
Inc., to names dissimilar to their present names. The Seller agrees to cooperate
to the extent necessary to permit the Buyer to file a certificate of assumed
name for the name "Great Plains Transportation, Inc." with the Secretary of
State of Kansas and any other state in which Seller is registered or licensed to
conduct business. Seller shall have prepared for delivery at Closing such
documents as are necessary to transfer to Buyer all of Seller's rights to the
name
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8.1.6. DELIVERY OF DOCUMENTS. The Seller shall have delivered all
documents required to be delivered at Closing pursuant to Section 4.2 hereof.
8.1.7. LITIGATION AFFECTING CLOSING. No suit, action, or other
proceeding shall be pending or threatened by any person not a party to this
Agreement or before any court or governmental agency in which it is sought to
restrain or prohibit or to obtain damages or other relief in connection with
this Agreement or the consummation of the transaction contemplated by this
agreement, and no investigation that might eventuate in any such suit, action,
or other proceeding shall be pending or threatened.
8.1.8. LEGISLATION. No statute, rule, regulation, or order shall have
been enacted, entered, or deemed applicable by any domestic or foreign
government or governmental or administrative agency or court which would make
the transaction contemplated by this Agreement illegal.
8.1.9. REVIEW OF RECORDS OF THE BUSINESS. The Buyer shall have had the
opportunity prior to the Closing to review the business records of the Seller
and to take such other actions as specified herein. The Buyer shall have no
obligation to close the purchase of the Purchased Assets and the Membership
Interests if the Buyer discovers during such review any material deviation (in
the Buyer's sole discretion) from the information provided to the Buyer by the
Seller or the Owner relating to the Seller, the Business or the Purchased
Assets.
8.1.10. FINANCING COMMITMENT; LINES OF CREDIT. The Buyer shall have
obtained a written financing commitment for a line of credit from a bank or
other financial institution that is acceptable to the Buyer in its sole
discretion and which would be secured by certain of the Purchased Assets (other
than the tractors and trailers that comprise the Seller's "rolling stock" which
will be the collateral that will secure the payment of the Note) (the "Financing
Commitment") no later than October 31, 2002.
8.1.11. DUE DILIGENCE INVESTIGATION. The Buyer shall be satisfied with
the results of its due diligence investigation of the Business, the Purchased
Assets and the Membership Interests, including without limitation, the physical
condition of the Purchased Assets and the financial condition of the Business,
in the Buyer's sole and absolute discretion which shall be completed by closing.
8.2 CONDITIONS TO OBLIGATIONS OF THE SELLER AND THE OWNER TO PROCEED WITH
THE CLOSING.
The obligations of the Seller and the Owner to proceed with the Closing
shall be subject to the satisfaction, on or prior to the Closing, of all of the
following conditions, any of which may be waived by the Seller and/or the Owner
in their sole discretion:
8.2.1. ACCURACY OF REPRESENTATIONS; CERTIFICATE OF PRESIDENT. The
representations and warranties of the Buyer herein contained are true in all
respects both at signing and as of the Closing, and the Buyer has fulfilled and
performed all obligations and complied with all covenants and conditions prior
to or as of the Closing. The Buyer shall have delivered to the Seller a
certificate in form and substance satisfactory to the Seller dated as of the
Closing and executed by the President of the Buyer to all such effects.
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8.2.2. DELIVERY OF DOCUMENTS; PAYMENT OF PURCHASE PRICE. The Buyer
shall have delivered all documents to be delivered at Closing pursuant to
Section 4.3 hereof and the Buyer shall have paid the Purchase Price in
accordance with the terms and provisions of Section 3.1.2 hereof.
8.2.3. LITIGATION AFFECTING CLOSING. No suit, action, or other
proceeding shall be pending or threatened by any person not a party to this
Agreement or before any court or governmental agency in which it is sought to
restrain or prohibit or to obtain damages or other relief in connection with
this Agreement or the consummation of the transaction contemplated by this
Agreement, and no investigation that might eventuate in any such suit, action,
or other proceeding shall be pending or threatened.
8.2.4. LEGISLATION. No statute, rule, regulation, or order shall have
been enacted, entered, or deemed applicable by any domestic or foreign
government or governmental or administrative agency or court which would make
the transaction contemplated by this Agreement illegal.
8.2.5. CONSULTING AND NON-COMPETE AGREEMENT. The Buyer shall have
entered into the Consulting and Non-Compete Agreement in the form attached
hereto as Exhibit 1.3.1.
8.3 TERMINATION OF AGREEMENT. This Agreement and the transactions
contemplated herein may be terminated at or prior to the Closing ("Rightful
Termination") as follows:
8.3.1. UPON MUTUAL CONSENT. By mutual consent of all parties;
8.3.2. UPON FAILURE BY SELLER. By the Buyer pursuant to written notice
delivered at or prior to the Closing if the Seller has failed in any material
respect to satisfy all of the conditions to Closing set forth in Section 8.1; or
8.3.3. UPON FAILURE BY BUYER. By the Seller pursuant to written notice
delivered at or prior to the Closing if the Buyer has failed in any material
respect to satisfy the conditions set forth in Section 8.2.
8.4 CONSEQUENCES OF TERMINATION. In the event of termination of this
Agreement pursuant to Section 8.3.1., no party shall be entitled to damages from
the other parties hereto. Rightful Termination pursuant to Section 8.3.2. or
Section 8.3.3. shall not constitute a waiver of the terminating party's claim
for damages due to any other party's failure to perform its obligations under
this Agreement.
ARTICLE 9. INDEMNIFICATION.
9.1 INDEMNIFICATION BY SELLER AND OWNER. The Seller and the Owner shall
jointly and severally indemnify, defend, and hold the Buyer harmless at all
times from and after the date of this Agreement against and in respect of all
losses, liabilities, claims, damages, costs, and expenses (including reasonable
attorneys' fees and expenses) (collectively "Damages") which the Buyer may
suffer or incur in connection with any of the following matters:
9.1.1. Breaches. The breach by the Seller or the Owner of any
agreement, representation, warranty, or covenant contained in this Agreement,
the Consulting and Non-Competition Agreement, or any collateral documents;
9.1.2. PRE-CLOSING OBLIGATIONS. Any claim, demand, action or proceeding
asserted by any person against the Buyer relating to any obligation or liability
not specifically assumed by the Buyer or relating to any obligation or liability
arising prior to Closing; or
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9.1.3. CLAIMS OF CREDITORS. Any claim, demand, action or proceeding
asserted by any person against the Buyer relating to the transfer of the
Purchased Assets or the actual or alleged failure of the parties to fully comply
with any statutory provision designed to protect the interests of the creditors
of the Seller and the Owner.
9.2 INDEMNIFICATION BY BUYER. The Buyer shall indemnify, defend, and hold
the Seller and the Owner harmless at all times from and after the date of this
Agreement against and in respect of all Damages, which the Seller or the Owner
may suffer or incur in connection with any of the following matters:
9.2.1. BREACHES. The breach by the Buyer of any agreement,
representation, warranty, or covenant contained in this Agreement, the
Consulting Agreement, the Non-Competition Agreement, or any collateral
documents; or
9.2.2. POST-CLOSING OBLIGATIONS. Any claim, demand, action, or
proceeding asserted by any person against the Seller or the Owner relating to
any obligation or liability specifically assumed by the Buyer hereunder or to
any obligation or liability relating to the Business incurred after the Closing.
9.5 RIGHT OF OFFSET. As security to the Buyer for performance of the
indemnities of the Seller and the Owner provided herein, in the event that the
Seller does not satisfy within thirty (30) days after written notice to the
Seller any of the Seller's Liabilities that are asserted against the Buyer by a
third party following the Closing or in the event that the Seller or the Owner
commit any Breaches that are not cured within thirty (30) days after written
notice to the Seller, then , the Buyer may at any time pay the amount of the
Damages suffered or incurred by the Buyer and the Buyer may offset the amount of
such Damages against the then remaining unpaid balance of Purchase Price due
Seller under the Debenture.
ARTICLE 10. (OMMITED)
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ARTICLE 11. GENERAL
11.1. ENTIRE AGREEMENT. This Agreement, together with the exhibits
heretofore or contemporaneously delivered pursuant to this Agreement or executed
and delivered at the Closing, sets forth the entire agreement and understanding
among the parties as to the subject matter hereof, and merges and supersedes all
prior discussions, agreements, and understandings of every and any nature among
them. This Agreement shall be effective only when signed by all of the parties
on the signature pages (or counterpart signature pages hereto). No party shall
be bound by any condition, definition, warranty, or representations, other than
as expressly set forth or provided for in this Agreement, or as may be, on or
subsequent to the date hereof set forth in writing and signed by the party to be
bound thereby. This Agreement may not be amended, supplemented, changed, or
modified, except by agreement in writing signed by the parties to be bound
thereby.
11.2. APPLICABLE LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. The
validity, construction and performance of this Agreement shall be governed by
and construed in accordance with the internal law of the state of Kansas
applicable to contracts executed in and performed entirely within such state,
without reference to any choice of law statutes or principles thereof. With
respect to any litigation arising out of this Agreement, the parties expressly
waive any right they may have to a jury trial and agree that any such litigation
shall be tried by a judge without a jury. Each party agrees to non-exclusive
personal jurisdiction and venue in the United States District Court Kansas City,
Kansas.
11.3. EXHIBITS. Each exhibit delivered pursuant to the terms of this
Agreement shall be in writing and shall constitute a part of this Agreement as
if fully set forth herein.
11.4. EXECUTION IN COUNTERPARTS. For the convenience of the parties hereto,
this Agreement may be executed in one or more counterparts (including facsimile
counterparts which shall have the same effect as originals), and by different
parties on different counterparts with the same effect as if the signatures
thereto were on the same instrument. This Agreement shall be effective and
binding upon all parties hereto only when all parties have executed a
counterpart of this Agreement.
11.5 BINDING EFFECT AND BENEFIT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, legal representatives, successors, and permitted assigns.
11.6. SUCCESSORS AND ASSIGNS. No party hereto shall assign or transfer any
of its rights or obligations hereunder without the prior written consent of the
other parties, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, the Buyer may assign its rights and obligations hereunder to an
affiliated corporation, limited liability company or other legal entity, whether
presently existing or formed subsequent to the date hereof, other than OrderPro
Logistics, Inc.;, provided, however, that the Buyer shall guarantee the
performance hereof by its assignee subject to the terms and conditions hereof.
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11.7. NO THIRD PARTY RIGHTS. This Agreement is not intended, and shall not
be construed, to create any rights in any person or entity other than the
parties to this Agreement and no other person or entity shall have any rights as
a third party beneficiary hereunder.
11.8. DEFINITIONS. Unless otherwise specified herein or therein, the
following terms (or any derivative or alternative form thereof) as used in this
Agreement, the Consulting Agreement, the Non-Competition Agreement, or the
instruments, certificates, or other documents required under this Agreement,
shall have the meanings assigned in this Section 11.8:
(a) KNOWLEDGE. "Knowledge" or "knowledge" means, with respect to any
person, actual knowledge of a fact, and with respect to any corporation or other
entity, actual knowledge of a fact by any officer, director, member, manager or
employee of such corporation or entity or constructive knowledge if a reasonably
prudent officer, director, member, manager or employee would have known, or
should have known the fact after due inquiry.
(b) PERSON. "Person" or "persons" means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization, or a governmental
entity (or any department, agency, or political subdivision thereof).
(c) LAWS. "Laws" or "laws" means any applicable federal, state, county,
or local laws, statutes, rules, regulations, ordinances and requirements
promulgated by governmental or other authorities including any judicial or
administrative interpretations thereof.
11.9. SEVERABILITY. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, that provision shall be enforced to the
greatest extent permissible so as to affect the intent of the parties hereto,
and the legality, validity and enforceability of the remaining provisions shall
in no manner be affected or impaired thereby. If necessary to effect the intent
of the parties, the parties will negotiate in good faith to amend this Agreement
to replace the illegal, invalid or unenforceable provision with legal, valid and
enforceable language which as closely as possible reflects such intent.
11.10. EXPENSES. Each party hereto shall each bear and pay for its own
costs and expenses incurred by it or on its behalf in connection with the
transaction contemplated hereby, including, without limitation, all fees and
disbursements of attorneys, accountants, brokers, and financial consultants
incurred through the Closing.
11.11. PUBLICITY. No public release, announcement or other form of
publicity concerning this Agreement or the transaction contemplated herein shall
be issued by any party without the prior written consent of all other parties
hereto; provided, however, that after Closing, the Buyer may announce completion
of the transaction in its own discretion.
11.12. WAIVER. The waiver by any party of any other party's non-compliance
with any obligation or responsibility herein shall be ineffective unless given
in writing and shall not be deemed a waiver of other instances of non-compliance
or of any party's remedies for such non-compliance.
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11.13. INTERPRETATION. The parties acknowledge that this Agreement was
prepared by the Buyer solely as a convenience and that all parties and their
counsel hereto have read and fully negotiated all the language used in this
Agreement.
11.14. ATTORNEY FEES. If any litigation shall be commenced to enforce, or
relating to, any provision of this Agreement, the Consulting Agreement, the
Non-Competition Agreement or any collateral documents, the prevailing party
shall be entitled to an award of reasonable attorney fees and reimbursement of
such other costs as it incurs in prosecuting or defending such litigation. For
purposes of this Section 11.17, prevailing party shall include a party awarded
injunctive relief, a party succeeding in obtaining the issuance of an order
enforcing an arbitrator's award or compelling arbitration as provided herein,
and a party prevailing upon appeal.
11.15. CONSENTS. Any consent permitted or required in this Agreement, the
Consulting Agreement, the Non-Competition Agreement or any collateral documents
shall be ineffective if not in writing and, unless provided otherwise herein or
therein, shall be granted or denied in the sole and absolute discretion of the
party authorized to grant the consent.
11.16. NOTICES. All notices which are required to be given or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if delivered in person, or mailed by registered or
certified mail, postage prepaid, or sent by commercial expedited delivery
service, as follows:
If to the Seller: with a copy to:
(which copy shall be mandatory to effect
notice but shall not alone constitute notice)
Xxxx Xxxxx Attorney
Xxxxxx X. Xxxxxx, Attorney
113450 Xxxxxxxx Xxxxx, Xxx. 000
Xxxxxxx Xxxxxx 00000
If to the Buyer: with a copy to:
(which copy shall be mandatory to effect
notice but shall not alone constitute notice)
Xxxxxxx Xxxxxxxxx, President Xxxxxxx X. Xxxxxxxxx, Attorney
0000 Xxxxxx Xxxx 00000 X. Xxxx Xxxxxxxxxx Xx., Xxx. 000
Xxxxxx XX 00000 Xxxxxx XX 00000
or such other address as any party hereto shall have designated by notice in
writing to the other parties hereto. Any notice to be given by a party may be
given by any attorney(s) then authorized to receive copies of notices hereunder.
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Any notice or other communication shall be deemed given when received if given
by hand or by commercial expedited delivery service, and three (3) days
following deposit, if sent by certified mail, return receipt requested, and
deposited in the U.S. mails for delivery as hereinabove provided.
ARTICLE 12. BUSINESS TRANSITION.
12.1 To facilitate an orderly transition of the Business from the Seller to
the Buyer, for a period of up to four (4) months following Closing:
(a) The Buyer and the Seller will use reasonable efforts to each day mail
to the other party any and all written matter, including, without limitation,
the Seller mailing to the Buyer payments received by the Seller in the event
such payments are for products shipped before the Closing and which are in
payment of Accounts Receivable purchased by the Buyer from the Seller under this
Agreement.
(b) The Buyer and the Seller will use reasonable efforts to promptly upon
receipt to direct to the other party each letter, telephonic communication, and
facsimile transmission intended for the other party as received by the Buyer or
the Seller.
(c) The Buyer, the Seller and their respective accountants and attorneys
will cooperate with each other to ensure that both parties receive the most
favorable tax treatment of the transactions contemplated by this Agreement.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, this Purchase and Sale Agreement has been duly executed
by the Buyer, the Seller, and the Owner as of the date first above written.
BUYER:
ORDERPRO LOGISTICS, INC.
a Nevada corporation
Attest:
By By:
---------------------------- -----------------------------
_________________, Secretary Xxxxxxx Xxxxxxxxx, President
SELLER:
GREAT PLAINS
TRANSPORTATION, INC.
an Illinois corporation
Attest:
By By:
---------------------------- -----------------------------
______________, Secretary Xxxx Xxxxx, President
OWNER
----------------------------
Xxxx Xxxxx, Shareholder
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List of Exhibits
EXHIBIT 1.2 FIXED ASSETS AND SELLER'S SEMI-TRAILERS
Exhibit 1.6. CONTRACTS
EXHIBIT 2.1 A PROMISSORY NOTE
Exhibit 2.1 b. DEBENTURE
Exhibit 3.2. Tax Forms 8594
Exhibit 3.3. Consulting Agreement & Non-Competition Agreement
Exhibit 6.1. Disclosure Schedule
Exhibit 8.1.1. Seller's Certificate of Representations
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