EXHIBIT 2.1
ASSET PURCHASE AGREEMENT EXECUTION COPY
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the 15th day of June, 1998 by and between CARIBBEAN AIR SERVICES,
INC., a Delaware corporation ("CAS"); AMERTRANZ WORLDWIDE HOLDING CORP., a
Delaware corporation ("Holding"); and GEOLOGISTICS CORPORATION, a Delaware
corporation (the "Purchaser").
EXPLANATORY STATEMENT
CAS is a wholly-owned subsidiary of Holding. CAS desires to sell and
the Purchaser desires to purchase all of the assets used in the business of CAS,
on the terms and conditions hereinafter set forth.
NOW THEREFORE, for the mutual consideration set out herein, the
parties hereto agree as follows:
1. DEFINITIONS; RULES OF CONSTRUCTION.
1.1. For purposes of this Agreement, the terms set forth below
shall have the following meanings:
AFFILIATE - Any person or entity that directly, or indirectly through
one of more intermediaries, controls or is controlled by or is under common
control with the person or entity specified. For purposes of this definition,
control of the person or entity means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person or entity
whether by Contract or otherwise.
AMERTRANZ GROUP - Holding and CAS, collectively.
ASSUMED OBLIGATIONS - As defined in Section 3.
ASSUMPTION AGREEMENT - The Assumption Agreement substantially in the
form attached hereto as EXHIBIT A, together with such other good and sufficient
instruments of assumption, in form and substance reasonably acceptable to CAS
and the Purchaser, as shall be effective to cause the Purchaser to assume the
Assumed Obligations.
XXXX OF SALE - The Xxxx of Sale substantially in the form attached
hereto as EXHIBIT B, together with such other good and sufficient instruments of
conveyance, assignment and transfer, in form and substance reasonably acceptable
to CAS and the Purchaser, as shall be effective to vest in the Purchaser good
title to the CAS Assets .
CAS - As defined in the introductory paragraph of this Agreement.
CAS ASSETS - All of the assets of CAS including those listed on
SCHEDULE 1.1 and the active, prospective, and historical customer lists for the
past five years, related current and
historical business records relating to prospective, active and inactive
customers and business for the preceding five years (including pricing
information, costing and vendor information as to transportation services); all
equipment, vehicles, parts, tools, computers and computer equipment, and other
assets; all associated computerized information relating to such business and
customers (including computer disks and tapes); all information relating to
current, historical, and planned marketing and sales of services; all interest
in the name "Caribbean Air Services", and all service marks utilized in
connection therewith; all local, 800 and international telephone and telefax
numbers utilized by CAS in connection with its businesses; all goodwill; all
pre-paid expenses; the leases for CAS's facilities, including all furniture,
fixtures and equipment used in or held for use in each such facility or in
connection therewith (subject to dispositions or replacements prior to Closing
in the ordinary course of business); all of CAS's rights under the Freight
Handling Agreement; all of CAS's rights under the CAS-D Freight Handling
Agreement (including the right to receive commissions thereunder); all vendor,
customer and sales representative contracts of CAS in connection with its
business; all other contracts of CAS in connection with its business; all
governmental licenses or authorizations with respect to the conduct of the CAS
Business; all other licenses pursuant to which any assets used in the CAS
Business are used; and all other tangible and intangible assets of CAS. "CAS
Assets" shall not include any of CAS's cash on hand, cash in depositories, tax
refunds, cash equivalents, accounts receivable, receivables due from Holding or
any of Holding's subsidiaries, and any interest of CAS in the "Xxxxxx X. Xxxxxx"
lease of space in Chicago.
CAS BUSINESS - The business heretofore operated by CAS.
CAS-D FREIGHT HANDLING AGREEMENT - The Freight Handling Agreement
attached hereto as SCHEDULE 1.2, dated January 1, 0000, xxxxxxx XXX, Xxxxxxxxx
Air Services Dominica, Inc., a corporation organized under the laws of Puerto
Rico, and such corporation's stockholders.
CAS SHARES - All of the issued and outstanding shares of Common Stock
of CAS, par value $.01 per share.
CERCLA - The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, and the rules and regulations promulgated
thereunder.
CERCLIS - The Comprehensive Environmental Response and Liability
Information System, as provided for by 40 C.F.R. Section 300.5.
CLOSING - The closing of the transactions contemplated by this
Agreement.
CLOSING DATE - The later of (i) July 15, 1998, or (ii) 15 days
following the expiration of the waiting period under the HSR Act, but in any
event, no later than September 1, 1998, unless otherwise mutually agreed to by
the parties in writing.
CODE - The Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder.
CONTRACTS - As defined in Section 7.19.
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EMPLOYEE BENEFIT PLANS - As defined in Section 7.25(i).
ENVIRONMENTAL CLAIM - With respect to any person, any written or oral
notice, claim, demand or other communication (collectively, a "claim") by any
other person alleging or asserting such person's liability for investigatory
costs, cleanup costs, Governmental or Regulatory Authority response costs,
damages to natural resources or other property, personal injuries, fines or
penalties arising out of, based on or resulting from (a) the presence, or
Release into the environment, of any Hazardous Material at any location, whether
or not owned by such person, or (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law. The term
"Environmental Claim" shall include, without limitation, any claim by any
Governmental or Regulatory Authority for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
ENVIRONMENTAL LAW - Any law or order relating to the regulation or
protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes into the
environment (including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata), or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or industrial,
toxic or hazardous substances or wastes.
ERISA - The Employee Retirement Income Security Act of 1974, as
amended, and the regulations issued thereunder.
EXCHANGE ACT - The Securities Exchange Act of 1934, as amended.
ESCROW AGREEMENT - the Escrow Agreement substantially in the form
attached hereto as EXHIBIT C.
ESCROW AMOUNT - As defined in Section 4.1.2.
FACILITY LEASES - The current leases entered into by CAS with respect
to leased office, warehouse, and terminal space and other real property.
FAIRNESS OPINION - As defined in Section 13.1.
FREIGHT HANDLING AGREEMENT - The Cargo Aircraft Charter Agreement
dated February 28, 1994, between Florida West Airlines, Inc. and TIA, Inc., a
Delaware corporation, assigned by TIA, Inc. to CAS and assigned by Florida West
Airlines, Inc. to Tradewinds Airlines, Inc., a Delaware corporation, and the
Cargo Aircraft Charter Agreement dated as of July 1, 1998 between Tradewinds
Airlines, Inc. and CAS, all as attached hereto as SCHEDULE 1.2.
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GAAP - United States generally accepted accounting principles.
HAZARDOUS MATERIAL - (i) any petroleum or petroleum products,
flammable explosives, radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation and transformers or
other equipment that contain dielectric fluid containing levels of
polychlorinated biphenyls (PCBs); (ii) any chemicals or other materials or
substances which are now or hereafter become defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants" or words of similar import under any Environmental Law; and
(iii) any other chemical or other material or substance, exposure to which is
now or hereafter prohibited, limited or regulated by any Governmental or
Regulatory Authority under any Environmental Law.
GOVERNMENTAL OR REGULATORY AUTHORITY - Any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state,
territory, county, city or other political subdivision.
HOLDING - As defined in the introductory paragraph of this
Agreement.
HSR ACT - The Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended.
INDEBTEDNESS - With respect to any person or entity, all obligations
of such person or entity, other than by Holding or any of Holding's subsidiaries
to Holding or any of Holding's subsidiaries, (i) for borrowed money, (ii)
evidenced by notes, bonds, debentures or similar instruments, (iii) for the
deferred purchase price of goods or services (other than trade payables or
accruals incurred in the ordinary course of business), (iv) under capital
leases, and (v) in the nature of guarantees of the obligations described in
clauses (i) through (iv) above of any other person.
LICENSES - As defined in Section 7.19.
LIENS - Any mortgage, pledge, assessment, security interest, lease,
lien, adverse claim, levy, charge or other encumbrance of any kind, or any
conditional sale Contract, title retention Contract or other Contract to give
any of the foregoing.
MARCH 31 BALANCE SHEET - The unaudited consolidating balance sheet of
CAS prepared in connection with the unaudited balance sheet of Holding as of
March 31, 1998 included in the SEC Filed Materials.
NPL - The National Priorities List under CERCLA.
ORDER - With respect to any person or entity, any judgment, order,
writ or decree of any court, arbitrator or governmental agency by which such
person or entity or any of its assets or properties is bound.
PLAN AFFILIATE - As defined in Section 7.25(iii).
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PURCHASE PRICE - As defined in Section 4.1.
PURCHASER - As defined in the introductory paragraph of this
Agreement.
RELEASE - Any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including, without limitation, the movement of Hazardous
Materials through ambient air, soil, surface water, ground water, wetlands, land
or subsurface strata.
REGULATIONS - Any laws, statutes, ordinances, regulations, rules,
court decisions and orders of any foreign, federal, state or local government
and any government department or agency including without limitation
environmental laws, energy, motor vehicle and aviation safety, public utility,
zoning, building and health codes, occupational safety and health regulations,
laws relating to employment practices employee documentation, terms and
conditions of employment and wages and hours.
SEC - United States Securities and Exchange Commission.
SEC FILED MATERIAL - The following documents filed by Holding with the
SEC: Annual report on Form 10-K for the fiscal year ended June 30, 1997;
Quarterly Report on Form 10-Q for the quarter ended September 30, 1997;
Quarterly Report on Form 10-Q for the quarter ended December 31, 1997; and
Quarterly Report on Form 10-Q for the quarter ended March 31, 1998.
SECURITIES ACT - The Securities Act of 1933, as amended.
TAX - Any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Section 59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not and any expenses incurred in
connection with the determination, settlement or litigation of any Tax
liability.
TAX RETURN - Any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
1.2. The Explanatory Statement is hereby incorporated into this
Agreement and made a part hereof.
1.3. The section and other headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
1.4. References in this Agreement to the "knowledge" of an
entity shall
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mean the actual knowledge of the chief executive officer, chief operating
officer, and chief financial officer of such entity, to the extent applicable,
including specifically the president/chief executive officer and chief financial
officer of each of Holding and CAS, and the senior vice president of operations
of CAS, and what they should have known after due and reasonable inquiry.
1.5. Unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular, to the singular
include the plural, to the part include the whole, and to the male gender shall
also pertain to the female and neuter genders and vice versa. The term
"including" is not limiting, and the term "or" has the inclusive meaning
represented by the phrase "and/or". The words "hereof", "herein", "hereby",
"hereto", "hereunder" and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
Section, Schedule, Exhibit and clause references are to this Agreement unless
otherwise specified.
2. PURCHASE OF CAS ASSETS.
On the terms and subject to the conditions set forth in this
Agreement, CAS hereby agrees to sell, transfer and assign to the Purchaser and
the Purchaser hereby agrees to purchase from CAS, on the Closing Date, all of
the right, title and interest of CAS in and to the CAS Assets. The Purchaser,
at its option, may designate one or more direct or indirect subsidiaries of the
Purchaser to purchase the CAS Assets and to which CAS will sell, transfer and
assign the CAS Assets.
3. ASSUMPTION OF LIABILITIES.
The Purchaser will not assume any of the liabilities, contingent
or otherwise, of CAS or Holding for Indebtedness, refunds, payables, litigation,
fines or penalties, employee obligations or otherwise, except for liabilities
arising after the Closing pursuant to the following (the "Assumed Obligations"):
(i) CAS's obligations under the Freight Handling Agreement and the CAS-D Freight
Handling Agreement, and (ii) the leases and other agreements included in the CAS
Assets for which the Purchaser receives the benefit following the Closing,
whether by direct assignment or pursuant to Section 9.11.
4. CONSIDERATION.
4.1. The consideration for the CAS Assets (the "Purchase Price")
shall be $27,000,000, paid as follows:
4.1.1. $25,000,000 paid at the Closing by wire transfer of
immediately available funds in accordance with instructions provided by Holding
to the Purchaser.
4.1.2. $2,000,000 (the "Escrow Amount") to be paid at the
Closing by wire transfer of immediately available funds to the Escrow Agent (as
such term is defined in the Escrow Agreement) to be held in accordance with the
terms of the Escrow Agreement for the satisfaction of any claims by the
Purchaser's Indemnities under Section 9.7, or for indemnification pursuant to
Section 15.1 hereof, until the first anniversary of the Closing Date, subject to
the terms
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of the Escrow Agreement. The respective indemnification obligations of Holding
and CAS hereunder shall not be limited to the Escrow Amount.
4.2. The Purchaser shall be entitled to the benefit of all
prepaid rents, utility bills, license fees and other prepaid expenses of CAS as
of the Closing Date.
4.3. CAS and the Purchaser shall jointly allocate the total
purchase price among the CAS Assets and the parties shall attach such allocation
schedule hereto as SCHEDULE 4.
5. CLOSING.
5.1. The Closing shall take place at the offices of Xxxxxx,
Feinblatt, Rothman, Hoffberger & Xxxxxxxxx, LLC, 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx on the Closing Date at 10:00 a.m., local time, or at such
other time and place as shall be agreed upon by the parties hereto.
5.2. Subject to the provisions of Section 9.11, at the Closing
(i) CAS will assign and transfer to the Purchaser all of its right, title and
interest in and to the CAS Assets (free and clear of all Liens), by delivery of
the Xxxx of Sale, duly executed by CAS, (ii) the Purchaser will assume from CAS
the due payment, performance and discharge of the Assumed Obligations by
delivery of the Assumption Agreement, duly executed by the Purchaser, and the
parties shall deliver the opinions, certificates and other contracts, documents
and instruments required to be delivered by them, respectively, as set forth in
Sections 11 and 12.
5.3. If, prior to the Closing, any of the CAS Assets are
destroyed or damaged or taken in condemnation, the insurance proceeds or
condemnation award with respect thereto shall be a CAS Asset. At the Closing,
CAS and Holding shall pay or credit to the Purchaser any such insurance proceeds
or condemnation awards received by it on or prior to the Closing and shall
assign to or assert for the benefit of the Purchaser all of its rights against
any insurance companies, Governmental or Regulatory Authorities and others with
respect to such damage, destruction or condemnation. As and to the extent that
there is available insurance under policies maintained by CAS and Holding or
their respective affiliates, predecessors and successors in respect of any
Assumed Obligation, except for any such insurance proceeds with respect to which
the insured is directly or indirectly self-insured or has agreed to indemnify
the insurer, CAS and Holding shall cause such insurance to be applied toward the
payment of such Assumed Obligation. The provisions of this Section 5.3 shall
not affect the right of the Purchaser not to close the transactions contemplated
by this Agreement if the condition to its obligations hereunder contained in
Section 12.1 has not been fulfilled.
5.4. Time is of the essence of this Agreement.
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6. ACCOUNTS RECEIVABLE.
6.1. All of CAS's trade receivables for services rendered by CAS
on or before the Closing Date shall be and remain the property of CAS.
PROVIDED, HOWEVER, that if, prior to the Closing Date, CAS has entered into an
agreement with a customer to provide freight services but such services have not
yet been provided on or before the Closing Date, the Purchaser will assume
responsibility for providing such service (or the remaining portion thereof) and
will be entitled to receive the compensation for such services (or the remaining
portion thereof) performed by the Purchaser, equal to the direct costs relating
thereto (including commissions) paid or incurred by the Purchaser following the
Closing Date, plus a pro-rata share (based on the direct costs to provide such
services, including commissions, incurred or paid by CAS or the Purchaser,
respectively) of the profits with respect thereto. CAS represents that it has
not collected, and undertakes that it will not collect, except as otherwise
disclosed in SCHEDULE 6.1, any pre-payments from any customers, or invoices for
any such services prior to the services having been completed.
6.2. For a period of five months from and after the Closing
Date, and thereafter from month to month until the Purchaser shall give one
month's advance written notice to CAS, the Purchaser shall, as agent of CAS,
exercise its commercially reasonable efforts to diligently collect all
receivables owned by CAS as of the Closing Date. To the extent so collected,
the Purchaser shall pay over and remit bi-weekly (or, if less than $5,000 is so
collected on any bi-weekly period, at such time(s) as such collections aggregate
$5,000) to CAS the cash receipts of such receivables, as collected, together
with an accounting of such amount, showing, for each receivable collected, the
payor and invoice value, the amount of the payment and any other information
regularly available from the accounts receivable system included in the CAS
Assets. All such cash receipts shall be received by, and held in trust by the
Purchaser for the benefit of CAS. The Purchaser shall not resolve any disputed
receivables with any account debtor without the consent of CAS. In the event
that any such dispute is not resolved, the Purchaser, as agent for CAS, shall,
at the discretion of CAS, place such receivable for collection and the cost and
the expenses of collection shall be the exclusive responsibility of CAS.
6.3. As compensation to the Purchaser for the accounts
receivable collection services set forth above, CAS and Holding will
collectively pay to the Purchaser five percent of all proceeds so collected in
excess of 90% of the face value of all such accounts receivable (I.E., face
value less reserves and allowances for doubtful accounts, discounts,
uncollectability, etc. consistent with past practice) on the Closing Date, other
than receivables due from Holding or any of Holding's subsidiaries. For
example, if the face value (gross receivables less allowance for doubtful
accounts) of all such accounts receivable on the Closing Date is $8 million, and
the Purchaser collects $7.5 million thereof, CAS will pay to the Purchaser
$15,000 (five percent of the $300,000 collected in excess of $7.2 million (90%
of the face amount)). Except with respect to remitting amounts collected to CAS
as set forth in Section 6.2, the Purchaser shall not be liable for an amount
owed on any accounts receivable.
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7. REPRESENTATIONS AND WARRANTIES OF CAS AND HOLDING.
CAS and Holding, jointly and severally, represent and warrant to
the Purchaser as follows:
7.1. HOLDING EXISTENCE AND GOOD STANDING. Holding is a
corporation duly organized, validly existing, and in good standing under the
laws of Delaware has the corporate power and authority to own, lease, and
operate its properties and carry on its business as now being conducted by it,
and is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which such qualification is necessary under the
applicable law as a result of the conduct of its business or ownership or
leasing of its properties, and in which failure to be so qualified or in good
standing will have a material adverse effect on its business or properties
(owned, leased, or operated).
7.2. CAS EXISTENCE AND GOOD STANDING. CAS is a corporation duly
organized, validly existing, and in good standing under the laws of Delaware,
has the corporate power and authority to own, lease, and operate its properties
and carry on its business as now being conducted by it, and is duly qualified to
do business as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is necessary under the applicable law
as a result of the conduct of the CAS Business or ownership or leasing of its
properties, and in which failure to be so qualified or in good standing will
have a material adverse effect on its business or properties (owned, leased, or
operated).
7.3. [INTENTIONALLY OMITTED]
7.4. [INTENTIONALLY OMITTED]
7.5. SUBSIDIARIES. CAS has no subsidiaries and does not,
directly or indirectly, own any interest in or control any corporation,
partnership, joint venture or other business association.
7.6. CHARTER DOCUMENTS AND BY-LAWS. Copies of CAS's and
Holding's
(i) Certificate of Incorporation, as amended to date,
certified by its Secretary or Assistant Secretary within 30 days prior to the
date hereof, and
(ii) By-laws, as amended to date, certified by its
Secretary or Assistant Secretary within 30 days prior to the date hereof
are attached hereto as SCHEDULE 7.6 and are complete and correct in all
respects, are in full force and effect, and neither entity is in violation of
any of the provisions of its Certificate of Incorporation or By-laws.
7.7. POWER AND AUTHORITY; AUTHORIZATION. Each of CAS and
Holding has full power and authority to enter into, execute and deliver this
Agreement, and to perform its respective obligations hereunder. The execution,
delivery, and performance of this Agreement by
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CAS and Holding, in accordance with the terms of this Agreement, have been duly
authorized and approved by the Board of Directors of CAS and the Board of
Directors of Holding (as the stockholder of CAS) and no other approval of CAS,
Holding or Holding's stockholders is required. This Agreement has been, and
each of the Exhibits hereto and other documents required hereunder (if
applicable) will be, on the Closing Date, duly executed and delivered by or on
behalf of each of CAS and Holding and are the legal, valid, and binding
obligations of such entity in accordance with their respective terms, subject
(as to the enforcement of remedies) to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and (as to the availability of
equitable remedies) to the discretion of the equity tribunal having
jurisdiction. CAS is a wholly-owned subsidiary of Holding.
7.8. NO VIOLATIONS. The execution, delivery, and performance of
this Agreement by each of CAS and Holding (i) will not violate (with or without
the giving of notice or the lapse of time, or both) or require any registration,
qualification, consent, approval, or filing under any regulation or Order
binding on it (other than any required filings under the HSR Act, and (ii) will
not
(a) conflict with, require any consent or approval (other than as set forth
in Section 7.9) under, result (with or without the giving of notice or the
lapse of time or both) in the breach of any provision of, constitute a
default under, result in the acceleration of the performance of its
obligations under, cause or allow for the termination of, require CAS or
Holding to obtain any consent, approval or action of, or make any filing
with or give any notice to any person as a result or under the terms of, or
(b) result (with or without the giving of notice or the lapse of time or
both) in the creation of any claim or Lien upon CAS, Holding, the CAS
Assets or the CAS Businesses, pursuant to
its certificate of incorporation or by-laws, any debt instrument, mortgage, deed
of trust, license, permit, franchise, lease, contract, or other instrument or
agreement to which such entity or any of its subsidiaries is a party or by which
it is bound (other than such instruments the violation(s) of which can be cured
at an aggregate immaterial cost or expense to such entity and, with or without
being cured, will not prevent such entity from continuing its business in the
ordinary course), or Order.
7.9. APPROVALS REQUIRED. Except for any filing required under
the HSR Act and except as set forth on SCHEDULE 7.9, no approval, authorization,
consent, clearance, order or other action of, or filing (other than notice)
with, any person, firm or corporation, or any court, administrative agency or
other governmental authority, is required by CAS or Holding in connection with
the execution and delivery by it of this Agreement or the performance by it of
the transactions described herein.
7.10. TITLE TO PROPERTY AND RELATED MATTERS. On the date
hereof, CAS has, and on the Closing Date will have, good and marketable title to
all of the CAS Assets (other than assets subject to leases included in SCHEDULE
7.15 or SCHEDULE 7.19), of any kind or character, free and clear of all Liens,
except those set forth in SCHEDULE 7.10, and all such assets and properties are
reflected on the March 31 Balance Sheet (subject to dispositions or replacements
prior to Closing in
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the ordinary course of business). Except as set forth in such Schedules and
except for matters that may arise in the ordinary course of business, CAS's
material assets and CAS's use thereof conform in all respects to all applicable
Regulations relating to their construction, use and operation, and are in good
operating condition and repair, reasonable wear and tear excepted. To the best
of the knowledge of CAS and Holding, there does not exist any condition or
agreement that materially interferes with the use thereof in the conduct of its
business in the ordinary course. CAS has no interest in real property other
than as lessee of certain facilities pursuant to leases included on SCHEDULE
7.15 and in leasehold improvements included in the CAS Assets.
7.11. LICENSES; TRADEMARKS; TRADE NAMES. SCHEDULE 7.11 contains
a true and complete list and brief description of all licenses, registered
trademarks, registered trade names, registered service marks, copyrights,
patents or applications for any of the foregoing, and all other proprietary
rights required or used in the CAS Business, other than licenses to use
"off-the-shelf" commercial software included with the equipment that constitute
part of the CAS Assets (none of which licenses are material). Except as listed
on such Schedule and such licenses to use "off-the-shelf" commercial software,
no license, trademark, trade name, service xxxx, copyright, is required or used
in the CAS Business, and there is no restriction on the transfer thereof.
7.12. [INTENTIONALLY OMITTED]
7.13. FINANCIAL STATEMENTS. The financial statements of CAS
attached hereto as SCHEDULE 7.13 (including the audited financial statements of
CAS for the year ended December 31, 1997) and the financial statements of
Holding included in the SEC Filed Material are (and the financial statements to
be delivered pursuant to Section 9.3, when delivered, will be) accurate and
complete in all material respects and fairly present (and, to the extent
applicable, its predecessor's) financial position of CAS and Holding, as the
case may be, as at the dates set forth therein and the results of its operations
for the periods reflected therein. All such audited financial statements have
been prepared in conformity with GAAP applied on a basis consistent with that of
prior periods (except as specifically indicated on such Schedule), and all such
unaudited financial statements have been prepared in conformity with GAAP
applied on a basis consistent with that of prior periods (except as specifically
indicated on such Schedule), except that such unaudited financial statements do
not contain footnotes and contain reasonable estimates, subject to adjustment,
of accruals, deferrals, and reserves consistent with past practices. Without
limiting the generality of the foregoing, such financial statements do not
contain any untrue statement of a material fact or omit to state any material
fact necessary to make such financial statements not misleading. CAS has always
used the fiscal year ending June 30 as its taxable year. No representation or
warranty is made with respect to financial projections concerning the operations
of CAS which CAS and Holding have previously delivered to the Purchaser. CAS
and Holding have maintained their books and records in a manner sufficient to
permit preparation of financial statements in accordance with GAAP.
7.14. UNDISCLOSED LIABILITIES. Except as disclosed in the
financial statements referred to in Section 7.13, as of the dates referred to in
such financial statements CAS has no liabilities or obligations of any kind,
whether accrued, absolute, contingent or otherwise, and whether or not required
to be disclosed on a balance sheet prepared in conformity with GAAP, and since
the date of the last such financial statement, CAS has incurred no such
liability or obligation
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other than (i) as set forth on SCHEDULE 7.14, (ii) in the ordinary course of
business and in amounts consistent with historic business operations, and (iii)
liabilities which, individually or in the aggregate, are not material to the CAS
Business.
7.15. FACILITIES.
(i) FACILITIES. CAS does not own any real property.
SCHEDULE 7.15 contains a complete and accurate description of the following
terms of all Facility Leases: (a) a general description of the leased property,
(b) the term thereof, (c) the applicable rent, and (d) any requirements for the
consent of third parties to assignments thereof. All Facility Leases are valid,
binding and enforceable in accordance with their terms and, are in full force
and effect. Except as set forth in SCHEDULE 7.15, no event exists which
(whether with or without notice, lapse of time or both or the happening or
occurrence of any other event) would constitute a default thereunder on the part
of CAS which would terminate or cause a material liability under any Facility
Leases; and, there exists no occurrence of any event which (whether with or
without notice, lapse of time or both or the happening or occurrence of any
other event) would constitute a default thereunder by any other party. CAS and
Holding have delivered true and correct copies of the Facility Leases to the
Purchaser prior to the date hereof.
(ii) ACTIONS. There are no pending condemnation
proceedings, administrative proceedings or other actions against CAS with
respect to any of the Facility Leases, or to the knowledge of the Holding or
CAS, pending or threatened condemnation proceedings, administrative proceedings
or other actions with respect to any of the Facility Leases.
(iii) LEASES OR OTHER AGREEMENTS. Except for Facility
Leases listed in SCHEDULE 7.15, CAS has not entered into any leases, subleases,
licenses, occupancy agreements, options, rights, concessions or other agreements
or arrangements written or oral, with respect to the areas of facilities or real
property leased to CAS used in connection with the CAS Business.
(iv) FACILITY LEASES AND LEASED REAL PROPERTY. With
respect to each Facility Lease, CAS enjoys peaceful and undisturbed possession
of all the real property it leases, subject to the rights of the fee owners and
the terms of the Facility Leases, and CAS has performed all the obligations
required to be performed by it though the date hereof.
(v) CERTIFICATE OF OCCUPANCY. CAS has received all
required approvals of governmental authorities (including permits and a
certificate of occupancy or other similar certificate permitting lawful
occupancy by CAS of the Leased Facilities) required in connection with CAS's
operation of the Leased Facilities.
(vi) UTILITIES. All of the Leased Facilities are supplied
with utilities (including water, sewage, disposal, electricity and telephone)
and other services necessary for the operation of the Leased Facilities as
currently operated, and, to the knowledge of CAS and Holding, there is no
condition which would result in the termination of any such utility services.
(vii) IMPROVEMENTS, FIXTURES AND EQUIPMENT. None of the
leasehold improvements is subject to any commitment or other arrangement for
their sale or use by an
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affiliate of Holding or CAS, or any third party that would materially interfere
with the use thereof.
(viii) NO SPECIAL ASSESSMENT. Neither Holding nor CAS has
received notice of any special assessment relating to any of the Leased
Facilities or any portion thereof and, to the knowledge of Holding and CAS,
there is no pending or threatened special assessment with respect thereto.
7.16. CAS ASSETS. SCHEDULE 1.1 contains an accurate list of
each of the CAS Assets with a current book value in excess of $1,000. Except as
disclosed on SCHEDULE 7.16, the CAS Assets, include all assets necessary for the
conduct of the CAS Business as presently being conducted.
7.17. MATERIAL ADVERSE CHANGE. Except as set forth in SCHEDULE
7.17 or the SEC Filed Material, or as otherwise reflected herein, since March
31, 1998, the CAS Business has been operated in the ordinary course and there
has not been:
(i) Any actual or, to the knowledge of CAS or Holding, any
threatened, material adverse change in the business, condition (financial or
otherwise), results of operations, prospects, properties, assets, liabilities,
earnings, net worth, or prospects thereof, except for the general effects of
present economic conditions or conditions affecting the freight forwarding
industry generally;
(ii) Any material damage, destruction or casualty loss
(whether or not covered by insurance) affecting CAS, the CAS Assets, properties
or business;
(iii) Any statute, rule, regulation or order adopted
(including orders of regulatory authorities with jurisdiction over CAS or its
business) that materially and adversely affects CAS, the CAS Assets or the CAS
Business, other than any statute, rule, regulation or order affecting the
freight forwarding industry in general;
(iv) Any increase in, or commitment to increase, the wage,
salary, commissions, bonus, employee benefit rate or other compensation payable
or to become payable to any of CAS's employees, PROVIDED, HOWEVER, that this
paragraph shall not restrict or limit CAS in any way from hiring additional
personnel who are required for its operations in the usual course of business
consistent with past practices;
(v) Any Lien placed on any of the CAS Assets;
(vi) Any sale, assignment, transfer, lease, disposition of,
or agreement to sell, assign, transfer, lease, or dispose of, any of the CAS
Assets, except for dispositions of personal property in the ordinary course of
business;
(vii) Any acquisition or lease by CAS of any assets or
property of any other party except for supplies in the ordinary course of
business and acquisitions of personal property in the ordinary course of
business, and except for the renewal or extension of the Freight Handling
Agreement and the lease of a DC-8 aircraft in connection with CAS's service to
and from
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Xxxxxxxxxxxx, Xxxxxxx;
(viii) Any collective bargaining agreement or commitment by
CAS or any liability incurred by CAS to any labor organization or other material
change in employee relations;
(ix) Any capital expenditure by CAS in excess of $100,000
or outside the ordinary course of business;
(x) Any change by CAS in the nature of its business or its
methods, principles or practices of accounting;
(xi) To the knowledge of CAS or Holding, the loss by CAS of
any supplier(s), vendor(s), customer(s) or employee(s), which loss (individually
or in the aggregate) has had or is reasonably expected to have a material
adverse effect on CAS's financial condition, results of operation, business or
prospects;
(xii) (a) Other than with respect to existing credit
facilities (without amendment or modification thereto), any Indebtedness
incurred by CAS with respect to the conduct of the CAS Business in an aggregate
principal amount exceeding $1,000,000 (net of any amounts discharged during such
period), or (b) any voluntary purchase, cancellation, prepayment or complete or
partial discharge in advance of a scheduled payment date with respect to, or
waiver of any right of CAS under, any Indebtedness of or owing to CAS with
respect to the conduct of the CAS Business.
(xiii) Any declaration or payment of any dividend in
respect of the capital stock of CAS, or other payment to the stockholders of CAS
in their capacity as such.
(xiv) Any entering into, any amendment, modification,
termination (partial or complete) or granting of a waiver under or giving any
consent with respect to (a) any Contract which is required (or had it been in
effect on the date hereof would have been required) to be disclosed pursuant to
SECTION 7.19 or (b) any License included on SCHEDULE 7.19.
(xv) Any other events or conditions of any character
specifically related to the business or operations of CAS that may reasonably be
expected to have a material adverse effect on CAS or its business or financial
condition, except for the general effects of present economic conditions;
(xvi) Any agreements or commitments to do any of the
foregoing.
7.18. TAX MATTERS.
(a) CAS and Holding have filed (or will timely file) all
Tax Returns required to be filed by applicable law with respect to the CAS
Business or CAS's earnings
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and assets for periods ending on or prior to the Closing Date. All such Tax
Returns were (and, as to Tax Returns not filed as of the date hereof, will be)
true, complete and correct and filed on a timely basis. CAS and Holding have
paid all Taxes that are due, or claimed or asserted by any taxing authority to
be due from Holding and CAS for the periods covered by the Tax Returns filed by
CAS or Holding. CAS and Holding have established (and until the Closing Date
will maintain) on their books and records reserves adequate to pay all Taxes not
yet due and payable in respect of operations and transactions through the
Closing Date. There are no Tax Liens upon the assets of CAS except Liens for
Taxes not yet due. Holding and CAS have complied (and until the Closing Date
will comply) with all applicable laws, rules, and regulations relating to the
payment and withholding of Taxes (including withholding and reporting
requirements under Code Sections 1441 through 1464, 3401 through 3406, 6041 and
6049 and similar provisions under any other laws) and have, within the time and
in the manner prescribed by law, withheld from employee wages and paid over to
the proper Governmental and Regulatory Authorities all required amounts. No
audits or other administrative proceedings or court proceedings are presently
pending with regard to any Taxes or Tax Returns of Holding or CAS that relate
to the CAS Business, or CAS's earnings or assets. Holding and CAS have made
available (or, in the case of Tax Returns to be filed on or before the Closing
Date, will make available) to the Purchaser complete and accurate copies of all
Tax Returns filed by or on behalf of CAS for all taxable years ending on or
prior to the Closing Date with respect to the CAS Business, or CAS's earnings
and assets.
7.19. AGREEMENTS AND AUTHORIZATIONS. SCHEDULE 7.19 contains a
true and complete list and brief description of all written or oral contracts,
agreements, mortgages, obligations, understandings, arrangements, restrictions,
and other instruments ("Contracts") to which CAS is a party or by which CAS or
its assets may be bound involving required payments in any consecutive 12-month
period or otherwise representing required annualized costs to CAS of $50,000 or
more or representing required aggregate payments by CAS of $50,000 over the term
of any such agreement or arrangement (without regard to the amount of annualized
payments or
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costs). SCHEDULE 7.19 also contains a true and complete list and brief
description of all governmental licenses, permits, authorizations and material
non-governmental licenses, franchises and agency arrangements necessary to
operate the CAS Business as heretofore operated ("Licenses"). True and correct
copies of all items set forth on such Schedule have been made available to the
Purchaser. Except as disclosed on such Schedule, each such Contract and License
is valid, binding in full force and effect. No event has occurred which would
constitute (whether with or without notice, lapse of time or the happening or
occurrence of any other event) a material default by CAS under any of the
Contracts or Licenses set forth in such Schedule. CAS is not aware of any
material default by the other parties to such Contracts or Licenses.
7.20. COMPLIANCE; GOVERNMENTAL AUTHORIZATIONS. Except as set
forth on SCHEDULE 7.20: (i) CAS has heretofore complied with and is in
compliance with all Regulations which, if not complied with, would materially
and adversely affect its business; (ii) CAS has all federal, state, local and
foreign governmental licenses and permits necessary for the conduct of its
business; and (iii) such licenses and permits are in full force and effect.
Neither CAS nor Holding knows of any violations of any such licenses or permits.
No proceedings are pending or, to CAS's or Holding's knowledge, threatened to
revoke or limit the use of such licenses or permits.
7.21. LITIGATION. Except as set forth in SCHEDULE 7.21, there
are no actions, suits, claims, or legal, administrative or arbitration
proceedings, or to the knowledge of CAS or Holding, investigations, against
Holding or CAS with respect to the CAS Assets or the CAS Business whether at law
or in equity, or before or by any federal, state, municipal, local, foreign
courts, tribunals, arbitrations or other governmental department, commission,
board, bureau, agency or instrumentality, which (i) could reasonably be expected
to result in the issuance of an Order restraining, enjoining or otherwise
prohibiting or making illegal the closing of any of the transactions
contemplated by this Agreement or otherwise result in a material diminution of
the benefits contemplated by this Agreement to the Purchaser, or (ii) if
determined adversely to CAS or Holding, as applicable, could reasonably be
expected to result in (a) any injunction or other equitable relief that would
interfere with the CAS Business or (b) individually or in the aggregate in
respect of other such actions or proceedings, damages, fines, fees, penalties
and other costs by CAS exceeding $50,000. Neither CAS nor Holding know of a
threat of, or any fact, circumstances or other basis for, any such action, suit,
claim, investigation or proceeding. Except as set forth in SCHEDULE 7.21, CAS
is not in default with respect to or subject to any Order and there are no
unsatisfied judgements against CAS or the CAS Assets. To the knowledge of CAS
and Holding, there is no reasonable likelihood of a determination adverse to CAS
in any pending actions, suits, claims, investigations or legal, administrative
or arbitration proceedings.
7.22. INSURANCE. Attached hereto as SCHEDULE 7.22 is a list of
all insurance policies of CAS setting forth the name of the insurer, a
description of the policy, the amount of coverage, the amount of the premium and
the expiration date of the policy. All of CAS's insurable properties and assets
are insured with reputable and financially sound insurers, and have been
consistently insured for the prior five years (or such shorter period as CAS
owned such property), for CAS's benefit, under such policies of fire, casualty,
and other insurance as are customarily obtained to cover comparable properties
and assets by businesses in the region in which such properties and assets are
located, in amounts, scope and coverage which are adequate and reasonable in
light of existing conditions. Each insurance policy relating to the insurance
referred
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to in this Section is valid and enforceable. CAS has not failed to give any
notice or to present any claim under any insurance policy in a due and timely
fashion, nor has it permitted a lapse in any of its insurance policies at any
time during the prior five years.
7.23. BANKRUPTCY. Neither CAS nor Holding has any knowledge or
expectation that any petition for relief will be filed by CAS or Holding or any
case commenced against either of them under the Bankruptcy Code or any similar
federal or state statute, and neither CAS nor Holding has applied for or
consented to the appointment of, or taking of possession by, a receiver,
custodian, trustee or liquidator of itself or any of their respective properties
or made a general assignment for the benefit of creditors. Neither CAS nor
Holding is in default under or in breach of any loan agreement, credit facility,
note, lease, or other financing agreement, which will remain outstanding
following the Closing.
7.24. EMPLOYEES. Neither CAS nor any of its employees is
subject to any labor agreement or collective bargaining agreement, no petition
for certification or union election is pending with respect to the employees of
CAS, to the knowledge of CAS or Holding, no union or collective bargaining
representative has sought such certification or recognition with respect to the
employees of CAS at any time during the past three years, and, to the knowledge
of CAS or Holding, there has been no agreement or commitment to do or enter into
any of the foregoing. Except as set forth on SCHEDULE 7.24, CAS has not entered
into any written or oral employment agreement or become obligated under any
other document, policy or practice which gives to any person a right to
employment or compensation, including severance payments. SCHEDULE 7.24 also
includes accurate and complete copies of all written and detailed descriptions
of all oral employment arrangements disclosed on such Schedule. To the
knowledge of CAS and Holding, all of CAS's employees are authorized by the
United States Department of Justice to work in the United States, and CAS has
complied with all verification requirements of the United States Department of
Justice with respect to the identity of all of CAS's employees and their
authorization to work in the United States. CAS is neither in breach of, nor
has taken any action which would constitute a breach of, any oral or written
agreements or understandings respecting employment. All obligations of CAS,
whether arising by operation of law, by contract, by past custom or practice or
otherwise, for salaries, vacation, holiday pay, bonuses and other forms of
compensation which were payable to its officers, directors or employees as of
the date hereof (including all required and due taxes, insurance and withholding
thereon) have been paid as of the date hereof. There is no labor strike or
labor disturbances pending or threatened against CAS nor is any grievance
currently being asserted. CAS is not and has not engaged in any unfair labor
practice. There is no unfair labor practice charge or complaint against CAS
pending before the National Labor Relations Board or any other domestic or
foreign governmental agency and, to the knowledge of CAS or Holding, there are
no facts or information that could give rise thereto. CAS's relationship with
its employees is good, and neither CAS nor Holding has received any information
which would lead it to believe that a material number of CAS's employees will or
may cease to be employees of CAS prior to the Closing or will refuse reasonable
offers to be employed by the Purchaser following the Closing.
7.25. EMPLOYEE BENEFIT PLANS.
(i) Except as set forth on SCHEDULE 7.25, CAS does not sponsor
nor is it a party to (a) any employee benefit plan (as defined in Section 3(3)
of ERISA), (b) any employee
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welfare benefit plan (as defined in Section 3(1) of ERISA), (c) any employment
contract, written or unwritten or, (d) any other bonus, incentive compensation,
deferred compensation, pension, profit sharing, stock purchase, stock option,
stock appreciation, phantom stock, leave of absence, layoff, vacation, day or
dependent care, legal services, cafeteria, life, health, disability, worker
compensation, severance or other employee benefit plan, practice, policy or
arrangement of any kind, whether written or oral. All such employee benefit
plans, employee welfare plans, arrangements and employment contracts which CAS
does sponsor or is a party to are hereafter collectively referred to as
"Employee Benefit Plans." CAS has not scheduled or agreed upon future increases
of benefit levels (or the creation of new benefits) with respect to any Employee
Benefit Plan, and no such increases or benefits have been proposed or made the
subject of representations to CAS employees under circumstances which make it
reasonable to expect that such increases or benefits will be granted.
(ii) With respect to each Employee Benefit Plan, CAS has
delivered to Purchaser correct and complete copies, including amendments, of the
following (to the extent applicable): (i) the current and most recent prior
Employee Benefit Plan and contract documents, (including any related trust
agreements, service provider agreements, insurance contracts, or agreements with
investment managers), (ii) the current and most recent prior Summary Plan
Descriptions or similar descriptions of Employee Benefit Plans not subject to
ERISA, (iii) the two most recently filed Form 5500s and schedules thereto, (iv)
the two most recent IRS determination letters, (v) the two most recent
allocation or actuarial reports and (vi) any employee handbook(s) which refer to
such Employee Benefit Plan.
(iii) The assets of CAS are not subject to any Liens under
ERISA or the Internal Revenue Code, and no event has occurred, and no condition
exists, which would subject CAS or its assets to a future liability or Lien on
account of any Controlled Group Benefit Plan. A Controlled Group Benefit Plan
means any Employee Benefit Plan which CAS or any entity which must be considered
together with CAS under Internal Revenue Code Section 414(b), (c), (m) or (o) (a
"Plan Affiliate"), now maintains or contributes to or ever maintained or
contributed to.
(iv) No Employee Benefit Plan is or at any time was subject to
Title IV of ERISA, nor has CAS ever sponsored or contributed to any plan that at
any time was subject to Title IV of ERISA. No event has occurred and there
exists no condition or circumstances in connection with any Employee Benefit
Plan or any Controlled Group Benefit Plan under which CAS or any Plan Affiliate,
directly or indirectly (through any indemnification agreement or otherwise),
could reasonably be expected to be subject to any risk of material liability
under Section 409 of ERISA, Section 502(i) of ERISA, Title IV of ERISA or
Section 4975 of the Code.
(v) Each Employee Benefit Plan is, and has at all times been,
administered and operated in material compliance with its terms and the Internal
Revenue Code, ERISA and all other applicable laws, regulations, orders and
prohibited transactions exemptions. Each Employee Benefit Plan which CAS
currently sponsors or contributes to can be amended or terminated at any time
without liability to CAS.
(vi) CAS has performed all obligations required to be
performed by it with respect to each Employee Benefit Plan under any law or by
the terms of each such Plan. All
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contributions and other payments required to be made by CAS to any Employee
Benefit Plan with respect to any period ending before or at or including the
Closing Date have been made or reserves adequate for such contributions or
payments have been or will be set aside therefore and have been or will be
reflected in financial statements of CAS in accordance with GAAP. There are no
material outstanding liabilities of any Employee Benefit Plan (other than
routine benefit claims made in the ordinary course).
(vii) There are no actions, investigations or claims of any
kind (other than routine benefit claims made in the ordinary course), pending or
threatened, with respect to any Employee Benefit Plan. There have been no
audits or investigations of any Employee Benefit Plan by any governmental agency
except as set forth on SCHEDULE 7.25. There are no pending or threatened claims
by or on behalf of any Employee Benefit Plan, by any person covered thereby, or
otherwise, which allege violations of law and which could reasonably be expected
to result in liability on the part of the Purchaser.
(viii) Each Employee Benefit Plan that is intended to constitute
a qualified plan under Internal Revenue Code Section 401(a) is, and has at all
times been, qualified in form and operation under Section 401(a) and is the
subject of a favorable determination letter from the IRS.
(ix) Except as required by ERISA Sections 601-608, no Employee
Benefit Plan provides health, medical or similar benefits to retirees or other
former employees or their beneficiaries.
(x) The closing of the transactions contemplated by this
Agreement will not (i) entitle any current or former employee of CAS to
severance pay or any other payment (including parachute payments) from CAS,
except as expressly provided in this Agreement, or (ii) accelerate the time of
payment or vesting or funding or increase the amount of compensation due any
such employee except as expressly provided in this Agreement.
(xi) Except as set forth on SCHEDULE 7.25, no loan is
outstanding between CAS and any employee of CAS. No employer securities,
employer real property or other employer property is included in the assets of
any Employee Benefit Plan.
(xii) Each Employee Benefit Plan covers only employees (or
former employees or beneficiaries) of CAS, so that the transactions contemplated
by this Agreement will require no spin-off of assets and liabilities or other
division or transfer of rights with respect to any such plan.
(xiii) All categories of earned and unpaid bonuses or other
similar payments to employees of CAS pursuant to the Employee Benefit Plans, and
the date on which such bonuses are due or scheduled to be paid, are set forth on
SCHEDULE 7.25, and CAS has made adequate reserve and has sufficient cash
resources for payment of such bonuses as and when they become due.
7.26. ENVIRONMENTAL.
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7.26.1. CAS has operated its business and maintained its
assets (owned or leased) in compliance with all applicable environmental laws
and regulations in all material respects, and no order has been issued, claim
made or threatened in respect of any environmental matter. All environmental
reports directed to or obtained by CAS relating to the CAS Business have been
disclosed to the Purchaser.
7.26.2. CAS has obtained all licenses which are required
under applicable Environmental Laws in connection with the conduct of the
business or the CAS Assets. Each of such licenses is in full force and effect.
CAS has conducted the business in compliance in all material respects with the
terms and conditions of all such licenses and with any applicable Environmental
Law. In addition, except as set forth in SCHEDULE 7.26:
(i) No order has been issued, no Environmental Claim
has been filed, no penalty has been assessed and no investigation or review is
pending or, to the knowledge of CAS or Holding, threatened by any Governmental
or Regulatory Authority with respect to any alleged failure by CAS to have any
license required under applicable Environmental Laws in connection with the
conduct of the business or with respect to any generation, treatment, storage,
recycling, transportation, discharge, disposal or Release of any Hazardous
Material in connection with the business, and to the knowledge of CAS and
Holding there are no facts or circumstances in existence which could reasonably
be expected to form the basis for any such order, Environmental Claim, penalty
or investigation.
(ii) CAS does not own, operate or lease a treatment,
storage or disposal facility on any of the real property occupied by CAS
requiring a permit under the Resource Conservation and Recovery Act, as amended,
or under any other comparable state or local law; and, without limiting the
foregoing, (a) no polychlorinated biphenyl is present, (b) no asbestos or
asbestos-containing material is present, (c) there are no underground storage
tanks or surface impoundments for Hazardous Materials, active or abandoned, and
(d) no Hazardous Material has been Released in a quantity reportable under, or
in violation of, any Environmental Law or otherwise Released, in the cases of
clauses (a) through (d), at, on or under any such real property during any
period that CAS owned, operated or leased such property.
(iii) No Hazardous Material generated in connection with
the operation of the business has been recycled, treated, stored, disposed of or
Released by CAS at any location.
(iv) No oral or written notification of a Release of a
Hazardous Material in connection with the operation of the business has been
filed by or on behalf of CAS, and no site or facility now or previously owned,
operated or leased by CAS on any of the real property is listed or proposed for
listing on the NPL, CERCLIS or any similar state or local list of sites
requiring investigation or clean-up.
(v) No Liens have arisen under or pursuant to any
Environmental Law on any site or facility owned, operated or leased by CAS on
any of the real property, and no federal, state or local Governmental or
Regulatory Authority action has been taken or, to the knowledge of CAS or
Holding, is in process that could subject any such site or facility to
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such Liens, and CAS would not be required to place any notice or restriction
relating to the presence of Hazardous Materials at any such site or facility in
any deed to the real property on which such site or facility is located.
(vi) There have been no environmental investigations,
studies, audits, tests, reviews or other analyses conducted by, or that are in
the possession of, CAS in relation to any site or facility now or previously
owned, operated or leased by CAS on any of the real property which have not been
delivered to the Purchaser prior to the execution of this Agreement.
7.27. BUSINESS RELATIONSHIPS. Except as set forth on SCHEDULE
7.17, to the knowledge of CAS and Holding, CAS's relationships with its
suppliers, vendors, representatives and customers is satisfactory, and to the
knowledge of CAS and Holding, there is no occurrence which, with or without the
giving of notice or the lapse of time or both, would constitute a default under
any agreement or arrangement with any such party or would adversely affect CAS's
relationship with any such party so as to have a material adverse effect on the
business, operations, or condition (financial or otherwise) of CAS, and since
March 31, 1998, there have been no material adverse changes in pricing or
material adverse changes in volume of business in the aggregate.
7.28. KNOWLEDGE OF ADVERSE CONDITIONS. To the knowledge of CAS
and Holding, there are no present or future conditions, state of facts or
circumstances which has affected or may in the aggregate have a material adverse
effect upon the business or prospects of CAS taken as a whole, except for the
general effects of present economic conditions or conditions affecting the
freight forwarding industry generally.
7.29. AFFILIATE TRANSACTIONS. Except as disclosed on SCHEDULE
7.29, (i) neither Holding nor any officer, director or Affiliate of CAS or
Holding provides, directly or indirectly, any assets, services or facilities
used or held for use in connection with the CAS Business, and (ii) the CAS
Business does not provide, directly or indirectly, any assets, services or
facilities to Holding or any such officer, director or Affiliate. Except as
disclosed on SCHEDULE 7.29, each of the transactions listed on such Schedule is
engaged in on an arm's-length basis.
7.30. ACCURACY OF REPRESENTATIONS. All representations and
warranties with respect to CAS and Holding are true and correct as of the date
hereof. This Agreement does not contain, and no statement contained in the
Schedules or in any certificate, list or writing furnished by or on behalf of
CAS or Holding to the Purchaser pursuant to any provision of this Agreement
contains, any untrue statement of a material fact with respect to CAS or Holding
or omit to state any material fact with respect to CAS or Holding necessary to
make the statements contained herein not misleading. All matters and facts
known to CAS or Holding that are material to the CAS Assets and CAS Business
(other than the general effects of present economic conditions or conditions
affecting the freight forwarding industry generally) have been disclosed to the
Purchaser.
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8. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants to Holding as follows:
8.1. EXISTENCE AND GOOD STANDING. The Purchaser is a
corporation duly organized, validly existing, and in good standing under the
laws of Delaware, and has the corporate power and authority to own, lease, and
operate its properties and carry on its business as now being conducted by it.
8.2. POWER AND AUTHORITY; AUTHORIZATION. The Purchaser has full
power and authority to enter into, execute and deliver this Agreement, and to
perform each of its obligations hereunder. The execution, delivery, and
performance of this Agreement by the Purchaser, in accordance with the terms of
this Agreement, have been duly authorized and approved by the board of directors
of the Purchaser and no other approval of the Purchaser or its stockholders is
required. This Agreement has been, and each of the Exhibits hereto and other
documents required hereunder (if applicable) will be, on the Closing Date, duly
executed and delivered by or on behalf of the Purchaser and are the legal,
valid, and binding obligations of the Purchaser in accordance with their
respective terms, subject (as to the enforcement of remedies) to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and (as
to the availability of equitable remedies) to the discretion of the equity
tribunal having jurisdiction.
8.3. NO VIOLATIONS. The execution, delivery, and performance of
this Agreement by the Purchaser (i) will not violate (with or without the giving
of notice or the lapse of time, or both) or require any registration,
qualification, consent, approval, or filing under (except as set forth in
Section 8.4), any law, ordinance or regulation binding on it (other than any
required filings under the HSR Act and (ii) will not
(a) conflict with, require any consent or approval under, result in the
breach of any provision of, constitute a default under, result in the
acceleration of the performance of its obligations under, cause or allow
for the termination of, or
(b) result in the creation of any claim or Lien upon any of its properties,
assets, or businesses, pursuant to
its certificate of incorporation or by-laws, any debt instrument, mortgage, deed
of trust, license, permit, franchise, lease, contract, or other instrument or
agreement to which the Purchaser is a party or by which it is bound (other than
such instruments the violation(s) of which can be cured at an aggregate
immaterial cost or expense to such entity and, with or without being cured, will
not prevent such entity from continuing its business in the ordinary course), or
any judgment, order, writ or decree of any court, arbitrator or governmental
agency by which the Purchaser or any of its assets or properties is bound.
8.4. APPROVALS REQUIRED. Except for any filing required under
the HSR Act, and as set forth on SCHEDULE 8.4, no approval, authorization,
consent, clearance, order or other action of, or filing with, any person, firm
or corporation, or any court, administrative agency or other governmental
authority, or any governmental or non-governmental trade group, is required by
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the Purchaser in connection with the execution and delivery by the Purchaser of
this Agreement or the performance by the Purchaser of the transactions described
herein.
8.5. ACCURACY OF REPRESENTATIONS. All representations and
warranties set forth herein with respect to the Purchaser are true and correct
as of the date hereof. This Agreement does not contain any untrue statement of
a material fact with respect to the Purchaser or omit to state any material fact
with respect to the Purchaser necessary to make the statements contained herein
not misleading.
9. COVENANTS OF CAS AND HOLDING.
CAS and Holding each covenants and agrees as follows:
9.1. Prior to the Closing, it will hold in strict confidence and
not disclose to others (except its professional advisors and lenders), and will
not use or permit others to use, any data or information obtained from the
Purchaser concerning the Purchaser or its business, except as required by law
and except to the extent such information can be obtained from public or
published information or trade sources. If the transactions contemplated by
this Agreement are not concluded, it will (i) return to the Purchaser all such
data or information then held by it or its representatives and will continue to
maintain such information in strict confidence as set forth above, and (ii)
except as required by law or as otherwise provided herein, not disclose to any
other party (except its professional advisors and lenders who have a "need to
know"), the existence of this Agreement or any letters of intent with respect
thereto. It will maintain all negotiations and other information with respect
to the transactions contemplated herein in confidence and, except as required by
law or as required to comply with federal securities laws, will not make any
announcement thereof or disclose such negotiations to any other party other than
its professional advisors and lenders. Concurrent with the execution hereof,
the parties shall issue the respective announcements attached hereto as EXHIBIT
D. If CAS or Holding is advised by its outside legal counsel that it is
required by law or by the rules and regulations of the SEC to make any further
disclosure, it will first advise the Purchaser of the content of the proposed
disclosure, and the time and place that the disclosure will be made, and the
parties will endeavor to make such disclosure jointly. This covenant shall
survive termination of this Agreement.
9.2. Prior to the Closing Date, CAS will not engage in any
practice, take or omit to take any action, or enter into any transaction outside
the ordinary course of business. Without limiting the generality of the
foregoing, Holding and CAS will:
(i) Use commercially reasonable efforts to (a) preserve
intact the present business organization and reputation of the CAS Business, (b)
keep available (subject to dismissals and retirements in the ordinary course of
business consistent with past practice) the services of the CAS employees, (c)
maintain the CAS Assets in good working order and condition, ordinary wear and
tear excepted, and (d) maintain the good will of customers, suppliers, lenders
and other persons to whom CAS sells goods or provides services or with whom CAS
otherwise has significant business relationships in connection with the CAS
Business.
(ii) Except to the extent required by applicable law, (a)
cause the CAS
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Business books and records to be maintained in the usual, regular and ordinary
manner, and (b) except in the ordinary course of business, not permit any
material change in any pricing, investment, accounting, financial reporting,
inventory, credit, allowance or tax practice or policy of CAS that would
adversely affect the CAS Business, the CAS Assets or the Assumed Obligations.
Nothing contained herein shall require CAS or Holding to disclose to the
Purchaser, or allow the Purchaser to have access to, any customer pricing
information of CAS.
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9.3. FINANCIAL STATEMENTS AND REPORTS; FILINGS.
(i) As promptly as practicable and in any event no later than
45 days after the end of each fiscal quarter ending after the date hereof and
before the Closing Date (other than the fourth quarter), 90 days after the end
of each fiscal year ending after the date hereof and before the Closing Date, or
30 days after the end of each calendar month ending after the date hereof and
before the Closing Date, as the case may be, CAS will deliver to the Purchaser
true and complete copies of the unaudited balance sheet, and the related
unaudited statement of operations, of the CAS Business, as of and for the fiscal
year then ended or as of and for the fiscal quarter or month and the portion of
the fiscal year then ended, as the case may be, together with the notes, if any,
relating thereto, which quarterly and annual financial statements shall be
prepared in accordance with GAAP on a basis consistent with the prior financial
statements of CAS. Monthly financial statements will be preliminary and may not
be in accordance with GAAP.
(ii) As promptly as practicable, CAS will deliver to Purchaser
true and complete copies of such other financial statements, reports and
analyses relating to the CAS Business as may be prepared or received by CAS or
as Purchaser may otherwise reasonably request.
(iii) As promptly as practicable, CAS will deliver copies of
all license applications and other filings made by CAS in connection with the
operation of the CAS Business after the date hereof and before the Closing Date
with any Governmental or Regulatory Authority (other than routine, recurring
filings made in the ordinary course of business consistent with past practice).
9.4. EMPLOYEE MATTERS. Except as may be required by law, prior
to the Closing Holding and CAS will refrain from directly or indirectly:
(i) Making any representation or promise, oral or written, to
any CAS employee concerning any benefit plan, except for statements as to the
rights or accrued benefits of any CAS employee under the terms of any benefit
plan.
(ii) Except as required by an employment agreement set forth
on SCHEDULE 7.24 or in conjunction with promotions of employees in the ordinary
course of business, making any increase in the salary, wages or other
compensation in excess of 5% of any CAS employee's salary or outside of the
ordinary course of business consistent with past practice, or any increase in
the salary, wages or other compensation of any CAS employee whose annual salary
is or, after giving effect to such change, would be $50,000 or more.
(iii) Except as required by an employment agreement set forth
on SCHEDULE 7.24 or as set forth on SCHEDULE 7.25, adopting, entering into or
becoming bound by any benefit plan, employment-related contract or agreement or
collective bargaining agreement with respect to the CAS Business or any of the
CAS employees, or amending, modifying or terminating (partially or completely)
any such benefit plan, employment-related contract or agreement or collective
bargaining agreement, except to the extent required by applicable law and, in
the event compliance with legal requirements presents options, only to the
extent that the option which CAS
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reasonably believes to be the least costly is chosen.
(iv) Except as required by an employment agreement set forth
on SCHEDULE 7.24 or as set forth on SCHEDULE 7.25, establishing or modifying any
(i) targets, goals, pools or similar provisions in respect of any fiscal year
under any benefit plan or any employment-related contract or other compensation
arrangement with or for CAS employees, or (ii) salary ranges, increase
guidelines or similar provisions in respect of any benefit plan or any
employment-related contract or other compensation arrangement with or for CAS
employees.
(v) Discouraging any employee of the CAS Business from
remaining with the CAS Business.
9.5. Prior to the Closing Date, it will continue to operate the
CAS Business in the ordinary course of business, and will preserve, and enforce,
in the ordinary course of business, all rights with respect thereto, including
its present operations, physical facilities, working conditions, and
relationships with lessors, licensors, suppliers, customers and employees.
9.6. Holding and CAS will: (i) on the date hereof, make all
filings under the HSR Act with respect to the transactions contemplated hereby
(the filing fee with respect thereto to be paid by the Purchaser); (ii) use all
commercially reasonable efforts to cooperate with the Purchaser in (a)
determining which other filings are required to be made prior to the Closing
Date with, and which other consents, approvals, permits or authorizations are
required to be obtained prior to the Closing Date from, Governmental or
Regulatory Authorities in connection with the execution and delivery of this
Agreement and the closing of the transactions contemplated hereby, and (b)
timely making all such filings and timely seeking all such consents, approvals,
permits or authorizations; (iii) promptly seek all such consents, approvals,
permits or authorizations necessary to assign or transfer any Contracts which
constitute CAS Assets in accordance herewith; and (iv) use all commercially
reasonable efforts to take, or cause to be taken, all other action and do, or
cause to be done, all other things necessary, proper or appropriate to close the
transactions contemplated by this Agreement. Holding and CAS will provide
prompt notification to the Purchaser when any such consent, approval, action,
filing or notice referred to in the first sentence of this Section 9.6 is
obtained, taken, made or given, as applicable, and will advise the Purchaser of
any communications (and, unless precluded by law, provide copies of any such
communications that are in writing) with any Governmental or Regulatory
Authority or other person regarding any of the transactions contemplated by this
Agreement. Holding and CAS will take all commercially reasonable actions
necessary or appropriate to cause the prompt expiration or termination of any
applicable waiting period under the HSR Act in respect of the transactions
contemplated hereby, including complying as promptly as practicable with any
requests for additional information and assisting the Purchaser in responding to
any such requests for additional information. All out-of-pocket third-party
costs and expenses (I.E., but not office or employee overhead expenses) of
Holding and CAS in connection with complying with such requests for additional
information and assistance to the Purchaser in responding to such requests for
additional information shall be subject to the prior approval of and supervision
by the Purchaser and shall be paid by the Purchaser or, if paid by Holding or
CAS, reimbursed by the Purchaser to Holding or CAS, as the case may be.
9.7. Subject to the provisions of Section 10.5, Holding and CAS
jointly and
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severally undertake to (i) pay all trade liabilities of CAS in accordance with
their terms, and (ii) pay, within 15 days following the Closing Date or earlier
if required by law or pursuant to any applicable Employee Benefit Plan of CAS,
all employee bonus and other compensation arrangements and obligations incurred
by CAS prior to the Closing in accordance with CAS's Employee Benefit Plans;
PROVIDED, HOWEVER, that to the extent any CAS employee who is hired by the
Purchaser (or a subsidiary or Affiliate of the Purchaser) following the Closing
elects to retain vacation time accrued while employed by CAS, CAS will pay to
the Purchaser the dollar value of such accrued vacation time in accordance with
the terms of CAS's Employee Benefit Plans. If, in the reasonable judgement of
the Purchaser, the failure to pay any such liability has or may have an adverse
impact on the CAS Business after the Closing Date, then, following five days'
advance written notice to CAS during which five-day period CAS does not certify
to the Purchaser that such liability is legitimately in dispute, the Purchaser
may pay such liability and recover the amount so paid from CAS and Holding or by
offsetting amounts payable to CAS or Holding pursuant to Section 6.2 hereof.
9.8. CAS and Holding will (a) provide the Purchaser and any
person who is considering providing financing to the Purchaser to finance all or
any portion of the purchase price (it being understood that the transactions
contemplated by this Agreement are not contingent on the Purchaser obtaining any
form of financing) and their respective officers, directors, employees, agents,
counsel, accountants, financial advisors, consultants and other representatives
(collectively, "Representatives") with full access, upon reasonable prior notice
and during normal business hours, to the employees and such other officers,
employees and agents of CAS and Holding who have any responsibility for the
conduct of the CAS Business, to CAS's and Holding's accountants and to the CAS
Assets, and (b) furnish the Purchaser and such other persons with all such
information and data (including without limitation copies of Contracts,
Licenses, Employee Benefit Plans and other CAS Business books and records)
concerning the CAS Business, the CAS Assets and the Assumed Obligations as the
Purchaser or any of such other persons reasonably may request in connection with
such investigation. Nothing contained herein shall require CAS or Holding to
disclose to the Purchaser prior to the Closing, or allow the Purchaser to have
access to prior to the Closing, any customer pricing information of CAS.
9.9. Prior to the Closing, Holding will, and will cause its
subsidiaries to, transfer to CAS all of their respective right, title and
interest in and to the assets described on SCHEDULE 7.16.
9.10. If, following the Closing, any customer of CAS claims a
refund of amounts previously paid to CAS for services performed prior to the
Closing, CAS and Holding undertake to deal with such customer(s) in good faith
and to exercise commercially reasonable best efforts to satisfy such
customer(s).
9.11. Notwithstanding anything herein to the contrary, the
parties hereto acknowledge and agree that at the Closing CAS will not assign to
the Purchaser any contract, agreement or other right which by its terms requires
the consent of any other party unless such consent has been obtained prior to
the Closing. With respect to each such unassigned contract, agreement or right,
after the Closing CAS shall continue as the prime contracting party and, if
requested by Purchaser shall use its reasonable efforts to obtain the consent of
all required parties to
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the assignment of such contract, agreement or right, but the Purchaser shall be
entitled to the benefits of such contract, agreement or right accruing after the
Closing to the extent that CAS may provide to the Purchaser with such benefits
without violating the terms of such contract, agreement or right.
10. COVENANTS OF THE PURCHASER.
The Purchaser covenants and agrees as follows:
10.1. Prior to the Closing, it will hold in strict confidence
and not disclose to others (except to rating agencies, its professional advisors
and lenders, and as necessary in connection with its 144A or other form of
financing, it being understood that the transactions contemplated by this
Agreement are not contingent on the Purchaser obtaining any form of financing),
and will not use or permit others to use, any data or information obtained from
the Amertranz Group concerning the Amertranz Group or its business, except as
required by law and except to the extent such information can be obtained from
public or published information or trade sources. If the transactions
contemplated by this Agreement are not concluded, it will (i) return to the
Amertranz Group all such data or information then held by it or its
representatives and will continue to maintain such information in strict
confidence as set forth above, and (ii) except as required by law or as
otherwise provided herein, not disclose to any other party (except its
professional advisors and lenders who have a "need to know"), the existence of
this Agreement or any letters of intent with respect thereto. It will maintain
all negotiations and other information with respect to the transactions
contemplated herein in confidence and, except as required by law or by the rules
and regulations of the SEC or with the consent of the Amertranz Group, whose
consent shall not be unreasonably withheld, will not make any announcement
thereof or disclose such negotiations to any other party other than its
professional advisors and lenders. Concurrent with the execution hereof, the
parties shall issue the respective announcements attached hereto as EXHIBIT D.
If the Purchaser is advised by its outside legal counsel that it is required by
law or by the rules and regulations of the SEC to make any further disclosure,
it will first advise Holding of the content of the proposed disclosure, and the
time and place that the disclosure will be made, and the parties will endeavor
to make such disclosure jointly. This covenant shall survive termination of
this Agreement. Except as specifically superseded herein, the provisions of the
confidentiality agreement previously executed by the Purchaser with respect to
the transactions contemplated by this Agreement shall survive the execution and
termination of this Agreement and the Closing.
10.2. The Purchaser will (i) on the date hereof make all filings
and pay the requisite filing fee under the HSR Act with respect to the
transactions contemplated hereby; (ii) use all commercially reasonable efforts
to cooperate with the Amertranz Group in (a) determining which other filings are
required to be made prior to the Closing Date with, and which other consents,
approvals, permits or authorizations are required to be obtained prior to the
Closing Date from, Governmental or Regulatory Authorities in connection with the
execution and delivery of this Agreement and the closing of the transactions
contemplated hereby, (b) timely making all filings and timely seeking all such
consents, approvals, permits or authorizations, and (c) seeking all such
consents, approvals, permits or authorizations necessary to assign or transfer
any Contracts which constitute CAS Assets; and (iii) use all commercially
reasonable efforts to take, or cause to be taken, all other action and do, or
cause to be done, all other things necessary, proper or
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appropriate to close the transactions contemplated by this Agreement. The
Purchaser will take all commercially reasonable actions necessary or appropriate
to cause the prompt expiration or termination of any applicable waiting period
under the HSR Act in respect of the transactions contemplated hereby, including
complying as promptly as practicable with any requests for additional
information and assisting the Amertranz Group in responding to any such request
for additional information.
10.3. Following the Closing, the Purchaser will pay all of the
Assumed Obligations as and when due.
10.4. Following the Closing, the Purchaser will issue invoices
for CAS's services performed prior to the Closing and not yet invoiced in the
ordinary course of CAS's business. From and after the Closing Date, the
Purchaser shall, as agent of CAS, exercise its commercially reasonable efforts
to diligently collect all receivables owned by CAS as of the Closing Date
pursuant to Section 6 hereof.
10.5. Following the Closing, the Purchaser will prepare as due,
in the usual course, all checks or other disbursements, drawn on funds of
Holding, CAS or other subsidiary of Holding, from such depositories as
designated by Holding prior to or at the Closing, to pay such entities' accounts
payable which are not included in the Assumed Obligations. The Purchaser will
forward to Holding such checks or other disbursements for handling, together
with all supporting documentation. As compensation to the Purchaser for the
accounts payable services set forth above, CAS will pay to the Purchaser two
percent of all amounts so paid.
10.6. Following the Closing, the Purchaser will cooperate with
the Amertranz Group and its representatives and will provide the Amertranz Group
and its representatives with all information and access to personnel reasonably
requested in connection with the preparation of financial statements (including
independent audits) and federal and state tax returns of CAS, Holding, and
Holding's other subsidiaries.
10.7. For a period of three months following the Closing, the
Purchaser will allow CAS or Holding to use, rent-free, storage space at the 0000
Xxxxxx Xxxxx leased facility.
10.8. For a period of up to three months following the Closing,
the Purchaser will prepare as due, in the usual course, all required payroll
information with respect to Holding's Target Airfreight, Inc. subsidiary, and
transmit such information to the payroll processing service designated by
Holding.
11. CONDITIONS PRECEDENT TO OBLIGATIONS OF CAS AND HOLDING.
The Amertranz Group's obligation to close the transactions
pursuant to this Agreement is contingent on the fulfillment, at or prior to the
Closing Date, of each of the following conditions to the reasonable satisfaction
of Holding in its judgement (which judgement will not be unreasonably
exercised), any of which conditions may be waived in writing, in whole or in
part, by Holding:
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11.1. The representations and warranties made by or on behalf of
the Purchaser contained in this Agreement or in any certificate or document
delivered by, or at the direction of, the Purchaser to CAS or Holding pursuant
to the provisions hereof shall be true at and as of the time of the Closing as
though such representations and warranties were made at and as of such time.
11.2. The Purchaser shall have performed and complied in all
material respects with all covenants, agreements, and conditions required by
this Agreement to be performed or complied with by it prior to or at the
Closing.
11.3. The Purchaser shall have delivered to Holding all of the
exhibits and schedules required herein to be delivered by the Purchaser, and
copies of the documents referred to therein, each duly executed, if required,
and each such exhibit, schedule and document shall have been reasonably
acceptable to Holding.
11.4. Holding shall have received a certificate signed by the
chief executive officer of the Purchaser and dated the Closing Date, to the
effect that the conditions specified in Sections 11.1 through 11.3 inclusive
have been fulfilled.
11.5. The waiting period applicable to the transactions
contemplated hereby under the HSR Act shall have expired or been terminated and
all necessary clearances pursuant to the HSR Act shall have been obtained, and
there shall be no Order or Regulation restricting enjoining or making illegal
the closing of the transactions contemplated under this Agreement.
11.6. Holding, CAS and the Purchaser shall have obtained (i) all
required consents for the assignment by CAS to the Purchaser of all of the
customer agreements listed on SCHEDULE 7.19, and (ii) the consent or clearance
of the required governmental bodies as listed on SCHEDULE 7.9 and SCHEDULE 8.4
for the conclusion of the transactions contemplated by this Agreement.
11.7. Holding shall have received the following:
11.7.1. A certificate from the Secretary of State (or
similar office) of the Purchaser's jurisdiction of incorporation, dated at or
about the Closing Date, to the effect that the Purchaser is in good standing
under the laws of said jurisdiction.
11.7.2. An incumbency certificate for the Purchaser
dated at or about the Closing Date.
11.7.3. The opinion of Milbank, Tweed, Xxxxxx & XxXxxx,
counsel to the Purchaser, dated the Closing Date, in the form attached hereto as
EXHIBIT E.
11.7.4. The duly executed Assumption Agreement.
11.7.5. The duly executed Escrow Agreement.
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12. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER.
The Purchaser's obligation to close the transactions pursuant to
this Agreement is contingent on the fulfillment, at or prior to the Closing
Date, of each of the following conditions to the reasonable satisfaction of the
Purchaser in its judgement (which judgement will not be unreasonably exercised),
any of which conditions may be waived in writing, in whole or in part, by the
Purchaser:
12.1. The representations and warranties by CAS and Holding
contained in this Agreement or in any certificate or document delivered by, or
at the direction of CAS or Holding to the Purchaser pursuant to the provisions
hereof shall be true at and as of the time of the Closing as though such
representations and warranties were made at and as of such time.
12.2. CAS and Holding shall have performed and complied in all
material respects with all covenants, agreements, and conditions required by
this Agreement to be performed or complied with by them prior to or at the
Closing.
12.3. CAS or Holding shall have delivered to the Purchaser all
of the exhibits and schedules required herein to be delivered by CAS or Holding,
and copies of the documents referred to therein, each duly executed, if
required, and such exhibits, schedules and documents shall have been reasonably
acceptable to the Purchaser.
12.4. All of the items listed on SCHEDULE 7.16 shall have been
transferred and assigned to CAS, free and clear of all Liens.
12.5. The Purchaser shall have received a certificate signed by
the President of Holding and the Executive Vice President of CAS and dated the
Closing Date, to the effect that the conditions specified in Sections 12.1
through 12.4 inclusive have been fulfilled.
12.6. Subject to the provisions of Section 9.11, Holding, CAS
and the Purchaser shall have obtained the consent or clearance, in form and
substance satisfactory to the Purchaser, of the required governmental bodies and
third parties as listed on SCHEDULE 7.9 and SCHEDULE 8.4 for the conclusion of
the transactions contemplated by this Agreement and such consents shall not be
subject to the satisfaction of any condition that has not been satisfied or
waived and shall be in full force and effect; PROVIDED, HOWEVER, that
notwithstanding the provisions of Section 9.11, the Purchaser's obligation to
close the transactions pursuant to this Agreement is contingent on the Amertranz
Group obtaining, prior to the Closing, all required consents for the assignment
by CAS to the Purchaser of all of the customer agreements listed on SCHEDULE
7.19.
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12.7. The waiting period applicable to the transactions
contemplated hereby under the HSR Act shall have expired or been terminated and
all necessary clearances pursuant to the HSR Act shall have been obtained, and
there shall be no Order or Regulation restricting, enjoining or making illegal
the closing of the transactions contemplated under this Agreement which could
reasonably be expected to otherwise result in a material diminution of the
benefits of the transactions contemplated by this Agreement to the Purchaser,
and there shall not be pending or threatened any action or proceeding in, before
or by any Governmental or Regulatory Authority which could reasonably be
expected to result in the issuance of any such Order or the enactment,
promulgation or deemed applicability to the Purchaser or the transactions
contemplated by this Agreement of any such Regulation.
12.8. The Purchaser shall have received the following:
12.8.1. No later than 15 days before the Closing Date,
CAS's unaudited monthly interim financial statements for the periods April 1,
1998 through the last day of the month ending more than 30 days prior to the
Closing Date, each certified by the chief financial officer of Holding and each
prepared in accordance with GAAP applied on a consistent basis with prior
periods, except that such unaudited financial statements will not contain
footnotes and will contain reasonable estimates, subject to adjustment, of
accruals, deferrals, and reserves consistent with past practices.
12.8.2. The duly executed Xxxx of Sale.
12.8.3. Certificates from the Secretary of State of
Delaware, dated at or about the Closing Date, to the effect that each of CAS and
Holding is in good standing under the laws of the state of Delaware.
12.8.4. An incumbency certificate for each of CAS and
Holding dated at or about the Closing Date.
12.8.5. The opinion of Xxxxxx, Feinblatt, Rothman,
Hoffberger & Xxxxxxxxx, LLC, counsel to CAS and Holding, dated the Closing Date,
in the form attached hereto as EXHIBIT F.
12.8.6. The opinion of Potter Xxxxxxxx & Xxxxxxx LLP,
special counsel to Amertranz, to the effect that the performance of this
Agreement by CAS and Holding is not required to be approved by Holding's
shareholders under the General Corporation Law of the State of Delaware.
12.8.7. Subject to the provisions of Section 9.11, for each
of the Facility Leases, an estoppel certificate and consent to assignment from
the lessor thereunder in form and substance reasonably satisfactory to the
Purchaser.
12.8.8. The duly executed Escrow Agreement.
12.8.9. The certificates of the Chief Financial Officer of
CAS and
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the Chief Financial Officer of Holding in form and substance satisfactory to the
Purchaser certifying that after giving effect to the transactions contemplated
by this Agreement, Holding and CAS will be solvent.
12.9. The employment agreement between the Purchaser (or its
subsidiary) and Xxxxxxx X. Xxxxxx referred to in Section 13.2, shall be in full
force and effect, and Xxxxxxx X. Xxxxxx shall not be in breach thereof.
13. CONCURRENT ACTIONS.
The parties intend that concurrent with the execution hereof:
13.1. Holding will obtain the opinion of BT Alex. Xxxxx
Incorporated with respect to the fairness, from a financial point of view, of
the transaction contemplated by this Agreement to the shareholders of Holding
(the "Fairness Opinion"), in form and substance satisfactory to Holding, and
deliver a copy thereof to the Purchaser.
13.2. The Purchaser (or its subsidiary) will have entered
into an employment agreement with Xxxxxxx X. Xxxxxx, in form and substance
satisfactory to the Purchaser, to be effective as of the Closing Date.
13.3. The parties will make all filings under the HSR Act
with respect to the transactions contemplated hereby, and will request early
termination of the waiting period under the HSR Act.
14. NON-COMPETE AND NON-SOLICITATION COVENANTS.
14.1. NON-COMPETITION. Holding and CAS undertake that for a
period of three years after the Closing Date, neither of them will, and none of
their subsidiaries and affiliate companies will, directly or indirectly, own,
manage, operate, join, control or participate in the ownership, management
operation or control of or be connected as a partner, consultant or otherwise
with, any business or organization which directly or indirectly, competes with,
or in any way interferes with, the CAS Business as now constituted or the
freight and logistics services of the Purchaser and its subsidiaries and
affiliates to or from the Caribbean, except that Holding and its subsidiaries
and Affiliates may continue to engage in the freight forwarding business between
the mainland United States and the Caribbean provided that gross sales revenue
for such business does not exceed, in the aggregate for all such entities,
$3,000,000 per year, and provided further that for all such permitted Caribbean
freight forwarding business engaged in by Holding or its subsidiaries or
Affiliates for customers for which Holding or its subsidiaries or Affiliates
have not provided Caribbean freight forwarding services during the six months
prior
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to the date hereof, Holding and its subsidiaries and Affiliates shall engage the
Purchaser or its subsidiaries or Affiliates to provide such Caribbean freight
forwarding services at the lowest rate charged by the Purchaser or its
subsidiaries or Affiliates, as applicable, during the prior 30 days for
comparable services provided to other freight forwarders other than Xxxxx
Worldwide.
14.2. NON-SOLICITATION. Holding and CAS further undertake
that for a period of three years after the Closing Date neither of them will,
and none of their subsidiaries or affiliates will, either on their own account
or jointly with any third party or on behalf of any other person, firm or
corporation: (i) directly or indirectly solicit or attempt to solicit the
employment of any person or persons who are or were employed in the CAS Business
immediately prior to the Closing Date or during the six months immediately
preceding the Closing Date; (ii) cause or attempt to cause any supplier to the
CAS Business to terminate or materially reduce its services to the Purchaser or
any of its Affiliates with respect to Caribbean freight forwarding business; or
(iii) disclose (unless otherwise disclosed by others prior thereto, or compelled
by judicial or administrative process to disclose) or use any confidential or
secret information relating to the CAS Business or any client, customer or
supplier of the CAS Business.
14.3. INJUNCTIVE RELIEF AND ENFORCEMENT. In the event of
breach by Holding or CAS of the terms of Sections 14.1 and 14.2, the Purchaser
shall be entitled to institute legal proceedings to obtain damages for such
breach, or to enforce the specific performance of this Agreement and to enjoin
Holding or CAS from any further violation of Sections 14.1 and 14.2 and to
exercise such remedies cumulatively or in conjunction with all other rights and
remedies provided at law. Holding and CAS acknowledge, however, that the
remedies at law for any breach by either of them of the provisions of Section
14.1 and 14.2 may be inadequate. In addition, in the event the undertakings set
forth in Sections 14.1 and 14.2 shall be determined by any court of competent
jurisdiction to be unenforceable by reason of extending for too great a period
of time or by reason of being too extensive in any other respect, each such
agreement shall be interpreted to extend over the maximum period of time for
which it may be enforceable and to the maximum extent in all other respects as
to which it may be enforceable and enforced as so interpreted, all as determined
by such court in such action.
15. INDEMNIFICATION.
15.1. INDEMNIFICATION BY HOLDING AND CAS. Holding and CAS,
jointly and severally, hereby agree to indemnify and hold harmless the Purchaser
and its shareholders, affiliates, directors, officers, agents and employees
(collectively the "Purchaser Indemnitees"), from and against any and all Losses
(as hereinafter defined), to the extent such Losses arise out of, result from,
or are in connection with: (i) any breach by CAS or Holding of any of the terms
of this Agreement, (ii) any breach of any warranty or representation of CAS or
Holding made herein or pursuant to this Agreement, or (iii) any failure by CAS
or Holding to perform or comply with any of their covenants or obligations under
this Agreement, (iv) the operation of the CAS Assets or the CAS Business prior
to the Closing, or (v) any obligations of CAS to third parties other than the
Assumed Obligations.
15.2. INDEMNIFICATION BY THE PURCHASER. The Purchaser hereby
agrees to indemnify and hold harmless CAS and Holding and their respective
shareholders, affiliates, directors,
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officers, agents and employees (collectively "Seller Indemnitees"), from and
against any and all Losses, to the extent such Losses arise out of, result from,
or are in connection with: (i) any breach by the Purchaser of any of the terms
of this Agreement, (ii) any breach of any warranty or representation of the
Purchaser made herein or pursuant to this Agreement, (iii) any failure by the
Purchaser to perform or comply with any of its covenants or obligations under
this Agreement, (iv) the operation of the Purchaser's business, and the
operation by the Purchaser of the CAS Assets and the CAS Business after the
Closing, or (v) the payment of the Assumed Obligations.
15.3. For purposes of this Agreement, "LOSSES" shall mean the
aggregate of any and all payments for claims, liabilities, suits, actions,
demands, charges, damages, losses, costs, or expenses (including reasonable
attorneys' fees, expert witness fees and court costs) of every kind and nature
incurred by the indemnified party, net of all reserves with respect to such
item, tax benefits (net of the net tax costs, if any, of the indemnified party
from the realization of such indemnification payment), insurance proceeds,
proceeds of subrogation and any indemnity, contribution or other similar
payment from third parties. Tax benefits will be considered to be realized for
purposes of this Section in the year in which an indemnity payment occurs,
taking into account the present value of any such tax benefits, and the amount
of tax benefits shall be determined by assuming the person entitled to be
indemnified is in the maximum applicable foreign, federal, state and local
income tax bracket applicable to the indemnitee for the taxable year preceding
the taxable year of the indemnitee in which claim for verification is made.
15.4. Except as provided in the sentence next immediately
following, no indemnification shall be made to any Purchaser Indemnitee under
this Section 15, except to the extent the aggregate amount of Losses by all
Purchaser Indemnitees exceeds $500,000 and, similarly, no indemnification shall
be made to any Seller Indemnitee under this Section 15 except to the extent the
aggregate amount of Losses by all Seller Indemnitees exceeds $500,000 ( such
$500,000 amounts are each the "Threshold"); and the maximum liability of any
indemnifying party pursuant to all claims for indemnification under this Section
and all breaches of this Agreement shall be $7,500,000 in the aggregate (the
"Maximum"). The Threshold and Maximum limitations set forth in this Section
shall not apply to claims for indemnification for breaches of the
representations and warranties set forth in Subsections 7.7, 7.8, 7.9, 7.10,
7.18, 7.24, 7.25, 7.26, 8.2, 8.3 and 8.4, and the covenants set forth in
Subsections 9.1., 10.1, 10.3, Section 14, or any obligation of Holding or CAS to
the Purchaser under Subsection 9.7. All amounts paid by the Purchaser to
Holding or CAS pursuant to Section 22.2.2 shall be credited against amounts
payable by the Purchaser to CAS or Holding for indemnification hereunder.
15.5. Whenever any claim for indemnification is made, or any
suit or proceeding is instituted, which if meritorious or which if prosecuted
successfully would entitle a party to indemnification under this Section 15 (a
"Claim"), the person seeking indemnification (the "Indemnitee"), shall promptly
notify the party from whom indemnification is sought (the "Indemnitor ") of the
Claim and, when known, the facts constituting the basis for such Claim. In the
event of any such Claim for indemnification hereunder resulting from or in
connection with any Claim by a third party, the notice shall specify, if known,
the amount or an estimate of the amount of the liability arising therefrom. The
Indemnitee shall not settle or compromise any Claim by a third party for which
it is entitled to indemnification hereunder without the prior written consent of
the Indemnitor , which shall not be unreasonably withheld or delayed; PROVIDED,
HOWEVER, that if
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suit shall have been instituted against the Indemnitee(s) and the Indemnitor(s)
shall not have taken control of such suit after notification thereof as provided
in Subsection 15.6 of this Agreement, the Indemnitee shall have the right to
settle or compromise such claim upon giving notice to the Indemnitor as
provided in Subsection 15.6.
15.6. In connection with any Claim which may give rise to
indemnification hereunder resulting from or arising out of any Claim (or legal
proceeding) by a person other than an Indemnitee, the Indemnitor, at its sole
cost and expense, may, upon written notice to the Indemnitee, assume the defense
of any such Claim (including legal proceedings in connection therewith) if the
Indemnitor acknowledges to the Indemnitee in writing the Indemnitor's obligation
to indemnify the Indemnitee with respect to all elements of such Claim. If the
Indemnitor assumes the defense of any such Claim (or legal proceeding), the
Indemnitor shall select counsel reasonably acceptable to the Indemnitee to
conduct the defense of such Claims (or legal proceedings) and at the sole cost
and expense of the Indemnitor(s) shall take all steps necessary in the defense
or settlement thereof. The Indemnitor(s) shall not consent to a settlement of,
or the entry of any judgment arising from, any such Claim (or legal proceeding),
without the prior written consent of the Indemnitee, which shall not be
unreasonably withheld or delayed. The Indemnitee shall be entitled to
participate in (but not control) the defense of any such action, with its own
counsel and at its own expense. If the Indemnitor does not assume the defense
against any such Claim (or litigation resulting therefrom) within 30 days after
the date the Indemnitee notifies the Indemnitor of such Claim: (a) the
Indemnitee may defend against such Claim (or litigation) in such manner as it
may deem appropriate, including, but not limited to, settling such Claim, after
giving notice of the same to the Indemnitor(s), on such terms as the Indemnitee
may deem appropriate, and (b) the Indemnitor(s) shall be entitled to participate
in (but not control) the defense against such Claim, with its counsel and at its
own expense. If the Indemnitor thereafter seek to question the manner in which
the Indemnitee defended against such Claim or the amount or nature of any such
settlement, the Indemnitor shall have the burden to prove by a preponderance of
the evidence thatthe Indemnitee did not defend against or settle such Claim in a
reasonably prudent manner.
16. NO BROKERAGE.
16.1. Other than the obligations of the Holding to BT Alex.
Xxxxx Incorporated, neither Cas or Holding has incurred any obligation or
liability, contingent or otherwise, for brokerage fees, finder's fees, agent's
commissions, or the like in connection with this Agreement or the transactions
contemplated hereby. Holding agrees to indemnify and hold the Purchaser
harmless against and in respect of any such obligation or liability based on
agreements, arrangements, or understandings claimed to have been made by Holding
or CAS with any third party.
16.2. The Purchaser has not incurred any obligation or
liability, contingent or otherwise, for brokerage fees, finder's fees, agent's
commissions, or the like in connection with this Agreement or the transactions
contemplated hereby. The Purchaser agrees to indemnify and hold CAS and Holding
harmless against and in respect of any such obligation or liability based on
agreements, arrangements, or understandings claimed to have been made by the
Purchaser with any third party.
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17. NATURE OF REPRESENTATIONS AND WARRANTIES.
All of the parties hereto are executing and carrying out the
provisions of this Agreement in reliance on the representations, warranties,
covenants and agreements contained in this Agreement or at the closing of the
transactions contemplated hereunder, and any investigation that they might have
made or any other representations, warranties, covenants, agreements, promises
or information, written or oral, made by the other party or any other person
shall not be deemed a waiver of any breach of any such representation, warranty,
covenant or agreement.
18. NOTICES.
All notices, writings and other communications required or
permitted to be given pursuant to this Agreement shall be in writing, and if
such notices are hand-delivered or faxed, return fax acknowledgement requested,
to the address set forth below, they shall be deemed to have been received on
the business day so delivered or transmitted; if such notices are transmitted by
overnight courier, to the address set forth below, they shall be deemed to have
been received on the business day following the date on which so transmitted,
provided that any notice, writing or other communication received after 5:00
p.m., Eastern Time, shall be deemed to have been received on the next business
day:
CAS and Holding: Amertranz Worldwide Holding Corp.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000
Attn: Xx. Xxxxxx Xxxxxxxxx
With a copy to: Xxxxx Xxxxxxxx, Esquire
Xxxxxx Xxxxxxx, Esquire
Xxxxxx, Feinblatt, Rothman, Hoffberger & Xxxxxxxxx, LLC
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000
The Purchaser: Xxxxx X. Xxxxxx
GeoLogistics Corporation
13952 Denver Xxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000
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With a copy to: Xxxx X. Xxxxxx, Esquire
Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax (000) 000-0000
Any party may change its address for notice or payment purposes by giving notice
the other parties as hereinabove provided.
19. EXPENSES.
19.1. Except as otherwise provided herein, each party hereto
shall be responsible for and bear all of its own costs and expenses (including
the expenses of its representatives) incurred at any time in connection with
negotiation, due diligence and closing the transaction described herein.
19.2. Each party hereto shall pay all income taxes and other
taxes based on its taxable income which may be required as a result of the
transactions contemplated hereby. CAS or Holding will pay any sales, transfer
or franchise taxes arising out of the transfer of the CAS Assets hereunder.
Holding and CAS shall file all necessary documentation and Returns with respect
to such taxes.
20. SURVIVAL.
Except as set forth in Section 14 and as otherwise provided
herein, the representations, warranties, covenants and agreements herein
contained shall survive the execution, and delivery of this Agreement and the
closing of the transactions contemplated hereby, and shall continue for a period
of two years following the Closing Date, except for breaches of the
representations and warranties set forth in Sections 7.7, 7.18, 7.25, 7.26, 8.2
and 8.5, and the covenants set forth in Sections 9.1 and 10.1, which shall
survive until the expiration of all applicable statutes of limitation with
respect thereto, and the representations and warranties set forth in Section
7.26, which shall survive until the expiration of all applicable statutes of
limitation with respect thereto or to derivative claims arising from
environmental conditions existing at the time of the Closing.
21. EXCLUSIVITY.
21.1. Until the Closing Date or termination of this Agreement,
Holding and CAS will not directly or indirectly, through any representative or
otherwise, solicit or entertain offers from, negotiate with or in any manner,
encourage, discuss, accept or consider any proposal of any other person relating
to the acquisition of the CAS Assets, the CAS Shares or the CAS Business in
whole or in part, whether directly or indirectly, through purchase, merger,
consolidation, or otherwise. Notwithstanding the above, Holding and CAS may,
directly or indirectly, furnish information and access, in each case only in
response to unsolicited requests therefor, to any reputable, unaffiliated, third
party person, entity or group pursuant to confidentiality
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agreements, and may participate in discussions and negotiate with such entity or
group concerning any merger, sale of the CAS Assets, sale of the CAS Shares or
similar transaction involving CAS, if (i) such person, entity or group has
submitted an unsolicited, written, bona fide proposal to Holding's Board of
Directors relating to any such transaction (an "Alternative Proposal"), (ii)
Holding's Board of Directors by a majority vote determines in its good faith
judgment, based as to legal matters on the written advice of legal counsel, that
failing to take such action would result in a substantial risk of liability for
a breach of the Board of Directors' fiduciary duty, and (iii) Holding's Board of
Directors shall have determined, after consultation with its legal advisors and
after review of a written opinion from its financial advisors, that the terms of
such Alternative Proposal are principally superior to the terms set forth in
this Agreement and that such Alternative Proposal is reasonably capable of being
financed (a "Superior Proposal"). Holding shall provide a copy of any such
written proposal to the Purchaser immediately after receipt thereof and shall
keep the Purchaser fully informed of the status and details of such Alternative
Proposal.
22. TERMINATION OF AGREEMENT.
22.1. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing, by
written notice from the party terminating the Agreement to the other party, as
follows:
22.1.1. BY MUTUAL CONSENT. By the mutual written consent
of Holding and the Purchaser.
22.1.2. BY EITHER PARTY. At any time before the Closing,
by Holding or the Purchaser, in the event of a material breach hereof by the
non-terminating party if such non-terminating party fails to cure such breach
within five business days following written notification thereof by the
terminating party.
22.1.3. BY HOLDING. By Holding, if (i) in accordance with
Section 21, in the exercise of the good faith judgment of Holding's Board of
Directors as to its fiduciary duties to its stockholders imposed by law based on
the written opinion of outside counsel, the Board of Directors of Holding
authorizes the Company to enter into a binding written agreement covering a
transaction that constitutes a Superior Proposal and CAS and Holding provide
written notification to the Purchaser in accordance with Section 21, and (ii)
the Purchaser, within 10 business days following receipt of CAS's written
notification of its intention to enter into a binding agreement for a Superior
Proposal, does not make an offer that the Board of Directors of Holding
determines, in good faith after consultation with its financial advisors, is at
least as favorable, from a financial point of view, to the stockholders of
Holding as the Superior Proposal, and (iii) CAS and Holding pays the Termination
Fee to the Purchaser.
22.2. EFFECT OF TERMINATION AND ABANDONMENT.
22.2.1. If this Agreement is terminated by Holding pursuant
to Section 22.1.3, then, within seven days following such termination, the
Amertranz Group shall pay to the Purchaser, by wire transfer of immediately
available funds, a fee of $2,000,000 (the
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"Termination Fee"). Holding and CAS each acknowledges that the agreements
contained in this Section 22.2.1 are an integral part of the transactions
contemplated in this Agreement, and that, without these agreements, the
Purchaser would not enter into this Agreement; accordingly, if the Amertranz
Group fails to promptly pay the amount due pursuant to this Section, and, in
order to obtain such payment, the Purchaser commences a suit which results in a
judgment against Holding or CAS for the Termination Fee, the Amertranz Group
shall pay to the Purchaser its costs and expenses (including reasonable
attorneys' fees) in connection with such suit, together with interest on the
amount of the Termination Fee at the rate of 12% per annum from the date the
Termination Fee was required to be paid.
22.2.2. In the event of termination of this Agreement
pursuant to this Section 22, or if the Closing shall not have occurred on or
before the Closing Date, all obligations of the parties hereto shall terminate,
except the obligations of the parties set forth in this Section 22.2 and except
for the provisions of Sections 9.1, 10.1, 19, 22, 25, 26, 27, and 28. If the
Closing shall not have occurred on or before the Closing Date, or in the event
of termination of this Agreement for any reason other than pursuant to
Sections 22.1.1 or 22.1.3, nothing herein shall prejudice the ability of the
non-terminating party from seeking damages from any other party for any willful
breach of this Agreement, including reasonable attorneys' fees and the right to
pursue any remedy at law or in equity, PROVIDED, HOWEVER, that in the event
Holding or CAS is entitled to receive payment for damages pursuant to this
Section and such actual damages are finally determined to be less than
$1,000,000 exclusive of attorney's fees, the Purchaser shall pay to Holding and
CAS the sum of $1,000,000 plus reasonable attorney's fees.
23. EFFECT OF WAIVER.
The failure of any party at any time or times to require
performance of any provision of this Agreement will in no manner affect the
right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of any other provision.
24. SEVERABILITY.
The invalidity, illegality or unenforceability of any provision
or provisions of this Agreement will not affect any other provision of this
Agreement, which will remain in full force and effect, nor will the invalidity,
illegality or unenforceability of a portion of any provision of this Agreement
affect the balance of such provision. In the event that any one or more of the
provisions contained in this Agreement or any portion thereof shall for any
reason be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be reformed, construed and enforced as if such invalid, illegal
or unenforceable provision had never been contained herein.
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25. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with, the laws of the State of New York without regard to conflict of law
principles.
26. ENFORCEMENT.
Any suit, action or proceeding with respect to this Agreement,
shall be brought in the state and federal courts located in New York. The
parties hereto hereby accept the exclusive jurisdiction of those courts, as set
forth above, for the purpose of any such suit, action or proceeding.
The parties hereto hereby irrevocably waive, to the fullest
extent permitted by law, any objection that any of them may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any judgment entered by any court in respect
thereof brought as set forth above, and hereby further irrevocably waive any
claim that any suit, action or proceeding so brought, has been brought in an
inconvenient forum.
The parties hereto acknowledge and agree that any party's remedy
at law for a breach or threatened breach of any of the provisions of this
Agreement would be inadequate and such breach or threatened breach shall be per
se deemed as causing irreparable harm to such party. Therefore, in the event of
such breach or threatened breach, the parties hereto agree that, in addition to
any available remedy at law, including but not limited to monetary damages, an
aggrieved party, without posting any bond, shall be entitled to obtain, and the
offending party agrees not to oppose the aggrieved party's request for,
equitable relief in the form of specific enforcement, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy that may
then be available to the aggrieved party.
27. BINDING AGREEMENT; ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. This Agreement
shall not be assignable by any party hereto except as provided herein or with
the prior written consent of the other parties. The Purchaser may assign its
rights hereunder to any wholly-owned subsidiary of the Purchaser or in
connection with any financing arrangement that the Purchaser or such wholly
owned subsidiary may enter into, PROVIDED, that the Purchaser shall remain
obligated for all obligations to CAS or Holding hereunder.
28. ENTIRE AGREEMENT; MODIFICATION.
This Agreement, which includes all schedules and exhibits hereto,
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof, superseding, except as otherwise provided herein, all
prior negotiations, correspondence, understandings and agreements, between the
parties; no amendment or modification of this Agreement shall be binding on the
parties unless made in writing and duly executed by all parties.
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There are no oral or implied agreements and no oral or implied warranties
between the parties hereto other than those expressed herein.
29. FURTHER ASSURANCES.
Each of the parties hereto agrees to execute, acknowledge, seal
and deliver, after the date hereof and after the Closing, such further
assurances, instruments and documents and to take such further actions as the
other may reasonably request in order to fulfill the intent of this Agreement
and the transactions contemplated hereby.
30. COUNTERPARTS.
This Agreement may be executed in counterparts, all of which
taken together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CAS:
---
CARIBBEAN AIR SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
Executive Vice President
HOLDING:
-------
AMERTRANZ WORLDWIDE HOLDING CORP.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
President
THE PURCHASER:
-------------
GEOLOGISTICS CORPORATION
By: /s/ Xxx Xxxxxxx
----------------------------------------
Xxx Xxxxxxx
Vice President and General Counsel
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ASSET PURCHASE AGREEMENT
INDEX OF SCHEDULES AND EXHIBITS
Schedule
--------
1.1 - CAS Assets
1.2 - CAS-D Freight Handling Agreement
1.3 - Freight Handling Agreement
4 - Allocation of Purchase Price
6.1 - CAS Pre-Paid Services
7.6 - CAS and Holding Corporate Documents
7.9 - CAS Approvals
7.10 - Exceptions to Title to CAS Assets
7.11 - CAS Licenses and Marks
7.13 - CAS Financial Statements
7.14 - Post-Financial Statement Date CAS Liabilities
7.15 - CAS Facility Leases
7.16 - Exceptions to CAS Assets
7.17 - Material Adverse Changes to CAS
7.19 - CAS Agreements and Authorizations
7.20 - Exceptions to Compliance with Regulations
7.21 - CAS Litigation
7.22 - CAS Insurance Policies
7.24 - CAS Employment Agreements
7.25 - CAS Employee Benefit Plans and Employee Loans
7.26 - CAS Environmental Exceptions
7.29 - CAS Affiliate Transactions
8.4 - Purchaser Approvals
Exhibit
-------
A - Assumption Agreement
B - Xxxx of Sale
C - Escrow Agreement
D - Press Releases
E - Purchaser's Counsel's Opinion
F - CAS's and Holding's Counsel's Opinion
THE INFORMATION DISCLOSED ON ANY SCHEDULE IS DEEMED TO BE DISCLOSED ON ALL OTHER
RELEVANT SCHEDULES TO THIS AGREEMENT.
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