EXHIBIT 2.2
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of November
21, 1996, is between Hub Holdings, Inc., a Delaware corporation ("Hub
Holdings"), and Hub City North Central, Inc., a Wisconsin corporation
("Seller").
WHEREAS, Seller is the sole limited partner of Hub City North Central,
L.P., a Delaware limited partnership (the "Partnership"), and Hub Group, Inc. is
the sole shareholder of the sole general partner of the Partnership; and
WHEREAS, Seller desires to sell to Hub Holdings all of Seller's limited
partnership interest (the "Interest") in the Partnership and Hub Holdings
desires to purchase such Interest on the terms and subject to the conditions
described herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and warranties herein contained, the parties hereto agree
as follows:
1. Purchase and Sale. Subject to the terms and conditions herein set
forth, Hub Holdings agrees to purchase from Seller, and Seller agrees to sell to
Hub Holdings, the Interest owned by Seller in exchange for $14,969,576, to be
paid in the form of the promissory note attached hereto as Exhibit A (the
"Note").
2. Closing. The purchase of the Interest shall occur as soon as
practicable after the approval of this Agreement as contemplated by Section 7
hereof. The closing shall take place at the offices of Xxxxx, Xxxxx & Xxxxx, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000. At the closing, Hub Holdings
shall deliver to Seller a duly executed original of the Note, and Seller shall
deliver to Hub Holdings such instruments of transfer as Hub Holdings shall
reasonably request.
3. Representations and Warranties of Hub Holdings. Hub Holdings hereby
represents and warrants to Seller as follows:
(a) Due Organization. Hub Holdings is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, with corporate power to own its properties and to conduct its
business as now conducted.
(b) Authorization. Hub Holdings has the requisite power to enter
into this Agreement and to carry out its obligations hereunder. This
Agreement has been, and the Note will be, duly authorized, executed and
delivered by Hub Holdings and constitutes a valid and binding agreement,
enforceable against Hub Holdings in accordance with its terms except to the
extent that its enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of
creditors' rights
generally or by general equitable principles. Neither the execution and
delivery of this Agreement, the consummation of the transactions
contemplated hereby, nor compliance with the terms, conditions or
provisions of this Agreement will be a violation of any of the terms,
conditions or provisions of Hub Holdings's Certificate of Incorporation or
bylaws or of any material agreement or instrument to which it is a party or
by which it or its material properties may be bound, or constitute a
default or create a right of termination or acceleration thereunder.
(c) Consents and Approvals. No consent, authorization or approval
of, filing or registration with, or cooperation from, any governmental
authority or any other person not a party to this Agreement is necessary in
connection with the execution, delivery and performance by Hub Holdings of
this Agreement and the consummation of the transactions contemplated
hereby.
4. Representations and Warranties of Seller. Seller hereby represents and
warrants to Hub Holdings as follows:
(a) Due Organization. Seller is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization,
with corporate power to own its properties and to conduct its business as
now conducted.
(b) Authorization. Seller has the requisite power and authority to
enter into this Agreement and, subject to receiving the Required
Shareholder Approval (as defined below), to carry out its obligations
hereunder. This Agreement has been duly executed and delivered by Seller
and constitutes a valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally or by general equitable principles. None of the execution and
delivery of this Agreement, consummation of the transactions contemplated
hereby or compliance with the terms, conditions or provisions of this
Agreement, will be a violation of any of the terms, conditions or
provisions of any material agreement or instrument to which Seller is a
party or by which Seller may be bound, or constitute a default or create a
right of termination or acceleration thereunder.
(c) Title. Seller has good and marketable title to its Interest and
owns such Interest free and clear of all liens, encumbrances, claims,
security interests and defects. Such Interest was duly and validly issued
and fully paid.
(d) Complete Transfer of Interest. The assignments, endorsements,
powers and other instruments of transfer delivered by Seller to Hub
Holdings will be sufficient to transfer its Interest. Subject to receiving
the Required Shareholder Approval, Seller has full power and authority to
convey good and marketable title to the Interest, and upon such
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transfer, Hub Holdings will receive good and marketable title thereto, free
and clear of all liens.
5. Conditions to the Obligations of Hub Holdings. The obligations of Hub
Holdings under this Agreement are subject to the fulfillment of each of the
following conditions:
(a) Representations and Warranties. The representations and
warranties in this Agreement made by Seller shall be true in all material
respects on the date hereof.
(b) Performance. Seller shall have performed and complied in all
material respects with all agreements, covenants, obligations and
conditions required by this Agreement to be performed or complied with by
Seller.
(c) Injunctions. No preliminary or permanent injunction or other
final order by any United States Federal or state court shall have been
issued which prevents the consummation of the transactions contemplated
hereby.
(d) Required Shareholder Approval. Seller shall have received the
Required Shareholder Approval.
(e) Material Adverse Affect. There shall not have occurred any event
or development that, in the sole and absolute judgment of Hub Holdings,
would materially and adversely affect the value of the transactions
contemplated hereby to Hub Holdings or its sole shareholder.
6. Conditions to the Obligations of Seller. The obligations of Seller
under this Agreement are subject to the fulfillment of each of the following
conditions:
(a) Representations and Warranties. The representations and
warranties in this Agreement made by Hub Holdings shall be true in all
material respects on the date hereof.
(b) Performance. Hub Holdings shall have performed and complied in
all material respects with all agreements, covenants, obligations and
conditions required by this Agreement to be performed or complied with by
it.
(c) Injunctions. No preliminary or permanent injunction or other
final order by any United States Federal or state court shall have been
issued which prevents the consummation of the transactions contemplated
hereby.
(d) Required Shareholder Approval. Seller shall have received the
Required Shareholder Approval.
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7. Required Shareholder Approval. Seller shall promptly take such action
as may be required by its governing instruments and applicable law to seek to
obtain the requisite approval of its shareholders of this Agreement and the
transactions contemplated hereby (the "Required Shareholder Approval"). Seller
shall use its best efforts to receive the Required Shareholder Approval and the
board of directors shall recommend to the shareholders of Seller the approval of
this Agreement and the transactions contemplated hereby.
8. Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs, personal
representatives, successors, assigns and affiliates, but shall not be assignable
by any party hereto without the prior written consent of the other parties
hereto.
9. Notices. Any notice or other communication provided for herein or
given hereunder to a party hereto shall be in writing and shall be given by
delivery, by telex, telecopier or by mail (registered or certified mail, postage
prepaid, return receipt requested) to the respective parties as follows:
If to Hub Holdings:
Hub Holdings, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to Seller:
Hub City North Central, Inc.
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
10. Waiver. No party may waive any of the terms or conditions of this
Agreement except by a duly signed writing referring to the specific provision to
be waived.
11. Entire Agreement. This Agreement constitutes the entire agreement,
and supersedes all other prior agreements and understandings, both written and
oral, among the parties hereto and their affiliates with respect to the matters
set forth herein.
12. Expenses. Except as otherwise expressly contemplated herein to the
contrary, regardless of whether the transactions contemplated hereby are
consummated, each party shall
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bear its own expenses incident to preparing for, entering into and carrying out
this Agreement and the consummation of the transactions contemplated hereby.
13. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and, no provision of this Agreement shall be
deemed to confer upon other third parties any remedy, claim, liability,
reimbursement, cause of action or other right.
14. Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
15. Captions. The Section and Paragraph captions herein are for
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
17. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first executed.
HUB HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
Authorized Officer
HUB CITY NORTH CENTRAL, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
Authorized Officer
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EXHIBIT A
Form of Promissory Note
December 12, 1996 US$14,969,576
For value received, the undersigned, Hub Holdings, Inc., a Delaware
corporation or its assigns (herein the "PAYOR"), promises to pay to the order of
Hub City North Central, Inc., FOURTEEN MILLION, NINE HUNDRED SIXTY-NINE THOUSAND
FIVE HUNDRED SEVENTY-SIX DOLLARS (US$14,969,576), plus interest on the unpaid
principal amount hereof outstanding from time to time at the applicable Rate of
Interest (as defined below), at such times and on such terms as described below.
1. Repayment of Principal. The aggregate principal amount of this
Promissory Note shall be payable in whole on January 1, 1998, such date being
referred to as the Final Maturity Date.
2. Payment of Interest. Interest will be payable at maturity, whether by
optional prepayment or on the Final Maturity Date. All interest will be
calculated for the actual number of days elapsed on the basis of a 365-day year.
3. Rate of Interest. The Rate of Interest shall be seven percent (7%).
In the event of any default in the payment of interest or principal hereunder,
the Rate of Interest shall be nine percent (9%) for such period that the PAYOR
shall be in default.
4. Optional Prepayment. The PAYOR, at its option, may prepay this
Promissory Note, together with all accrued interest on the principal balance
prepaid, in whole or in part at any time prior to the Final Maturity Date.
In addition to, and not in limitation of, the foregoing, the undersigned
further agrees, subject only to any limitation imposed by applicable law, to pay
all expenses, including reasonable attorneys' fees and expenses, incurred by the
holder of this Promissory Note in seeking to collect any amounts payable
hereunder which are not paid when due.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, protest, and notice of dishonor. Recourse under
this Promissory Note shall be limited solely to the assets of the PAYOR.
This Promissory Note may not be changed or modified orally.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE.
IN WITNESS WHEREOF, the undersigned has executed this Promissory Note as of
the date first above written.
HUB HOLDINGS, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Officer
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GUARANTY
The undersigned hereby absolutely and unconditionally guarantees the due
and punctual payment and performance under the foregoing Promissory Note from
Hub Holdings, Inc. in favor of Hub City North Central, Inc. in the original
principal amount of $14,969,576.
HUB GROUP, INC.
By:
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Xxxxx X. Xxxxxx
Vice Chairman
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