Exhibit 10.13
PURCHASE AGREEMENT BY AND BETWEEN
UNITED ACQUISITION, INC. AND
UNITED EXPRESSLINE, INC., J.J.M., INCORPORATED
AND THE SHAREHOLDERS OF
UNITED EXPRESSLINE, INC. AND J.J.M. INCORPORATED
THIS PURCHASE AGREEMENT is entered into by and between United Acquisition,
Inc., an Indiana corporation ("Purchaser"), and United Expressline, Inc., an
Indiana corporation "United"), J.J.M., Incorporated, an Indiana corporation
("J.J.M."), and Xxxxxx X. Xxxxxxx, an individual resident of the State of
Michigan ("WEF"), Xxxxxx X. Xxxxxxx, an individual resident of the State of
Michigan ("WFJ"), Xxxxxx X. Xxxxxxx, an individual resident of the State of
Indiana ("AOF"), and Xxxx X. Xxxxxxx, an individual resident of the State of
Michigan ("MJJ") (WEJ, WFJ, AOJ, and MJJ being hereinafter collectively referred
to as "Shareholders").
WHEREAS, Shareholders own all of the authorized, issued and outstanding
shares of the capital stock of United; and
WHEREAS, WEJ, WFJ and AOJ own all of the authorized, issued and outstanding
shares of the capital stock of J.J.M.; and
WHEREAS, Purchaser has agreed to purchase, and United has agreed to sell,
substantially all of the assets of United pursuant to the terms and conditions
of this Agreement; and
WHEREAS, Purchaser has agreed to purchase, and J.J.M. has agreed to sell,
certain parcels of real estate pursuant to the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises, representations
and undertakings set forth herein, and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
In addition to those terms defined above or elsewhere in this Agreement,
the following terms shall have the meanings set forth below:
Section 1.1. "Actual Net Assets" means the Net Assets of United as of the
Closing Date, as determined by Seller's certified public accountant, but subject
to the provisions of Section 2.4.
Section 1.2. "Agreement" means this Purchase Agreement, including the
Schedules, Exhibits and any other documents delivered pursuant to this
Agreement.
Section 1.3. "Annual Financial Statement" means the compiled balance sheets
and consolidated statements of income, retained earnings, statement of cash
flows and notes thereto of the Companies dated December 31, 2000.
Section 1.4. "Asset Purchase Price" means the amount payable to United for
the Assets, as provided in Section 2.2 of this Agreement.
Section 1.5. "Assets" means all of the assets and properties of United,
including, but not limited to, the following:
(a) all machinery, equipment, trade fixtures, furniture, inventories,
tools, supplies, computer software programs and tangible personal property
relating to, used in or otherwise attributable to the operation of the Business;
(b) all intangible assets, including, but not limited to, all prepaid
expenses, accounts receivable, notes receivable and other indebtednesses owing
to United, all goodwill if any, all telephone and fax numbers, and all
Proprietary Rights owned by, used in or pertaining to the Business;
(c) all client lists, marketing plans, catalogues, brochures, sales
literature, promotional material and other selling material relating to the
Business;
(d) all books and records and all files, documents, papers, agreements,
books of account and other records pertaining to the Assets, customers,
employees and the Business, including such as relate to any predecessor
companies;
(e) United's rights under all Contracts;
(f) United's rights under all leases, including, but not limited to, all
leasehold improvements and all security or other deposits;
(g) the assets associated with the United Expressline, Inc. Deferred
Compensation Plan, as reflected on the Financial Statements;
(h) the assets of any other Plan assumed by Purchaser pursuant to Section
2.6;
(i) the assets set forth in Schedule 1.5; and
(j) any other assets or rights of every kind and nature, real or personal,
tangible or intangible, which are owned and used by United or useful in
connection with the operation of the Business.
The foregoing notwithstanding, the term "Assets" shall in no event include any
Excluded Assets.
Section 1.6. "Best Knowledge" means: (a) in the case of an individual,
facts or matters within the actual knowledge of such individual, and facts or
matters which should reasonably have been known by such individual, and (b) in
the case of United, J.J.M. or Purchaser, facts or matters within the actual
knowledge of any of their respective officers or Shareholders, and facts or
matters which should reasonably have been known by such personnel in the proper
exercise of their official duties.
Section 1.7. "Business" means the business of United, as such business has
been historically constituted and conducted.
Section 1.8. "Closing Date" means the date on which the last of the
material Closing Transactions is completed.
Section 1.9. "Closing Transactions" means the execution of this Agreement
and the performance of such other acts as are necessary to effect the purchase
and sale of the Assets and, the Real Estate, including, but not limited to the
payment by Purchaser of the amounts described in Sections 2.2 and 2.3 of this
Agreement, the delivery of the Note to United, the delivery of the deeds for the
Real Estate to Purchaser, and the delivery of any Schedules referenced in this
Agreement.
Section 1.10. "Companies" means United and J.J.M., collectively.
Section 1.11. "Contract" means each unexpired contract, lease,
undertaking, commitment, license and other agreement of United in effect on the
Closing Date, to which United is a party or by which United or any of the Assets
are bound.
Section 1.12. "Current Balance Sheet" means the compiled financial
statements of Companies for the four (4) month period ended as of April 30,
2001.
Section 1.13. "Environmental Law" means any material law, rule, regulation,
approval, decision, decree, ordinance, by-law having the force of law or order
of any federal, state or local executive, legislative, judicial, regulatory or
administrative agency, board or authority, which relate to (a) noise; (b)
pollution or protection of the air, surface water, ground water or land; (c)
solid, gaseous or liquid waste generation, treatment, storage, use, processing,
disposal or transportation; (d) exposure to hazardous or toxic substances; (e)
the safety or health of employees or (f) regulation of the manufacture,
processing, distribution in commerce, use, or storage of chemical substances,
applicable or related to the Companies' business, as conducted at any time, or
to their properties or assets.
Section 1.14. "Excluded Assets" means:
(a) United's organizational records, minute books and stock records;
(b) United's original tax returns;
(c) Any account receivable or other indebtedness owing by United
Specialties, Inc. to United as of the Closing Date, and any
accounts receivable excluded from the definition of "Net Assets"
under Section 1.22;
(d) All of United's cash and cash equivalents as of the Closing Date,
other than the assets described in Section 1.5(g) and 1.5(h);
(e) Those trailers consigned or otherwise loaned by United to persons
or firms other than race teams or other customers of United, as
more particularly described in Schedule 1.14; and
(f) those additional assets listed in Schedule 1.14.
Section 1.15. "Exhibits" means the exhibits referenced in and attached to
this Agreement, all of which shall be deemed a part hereof
Section 1.16. "Financial Statement Date" means December 31, 2000.
Section 1.17. "Financial-Statements" means the Annual Financial Statement
and the Current Balance Sheet.
Section 1.18. "Indemnified Party" means a Seller Indemnified Party, or a
Purchaser Indemnified Party, as defined in Article VIII.
Section.19. "Lenders" means First Indiana Bank and Huntington Capital
Investment Company. Investment Company.
Section 1.20. "Material Adverse Effect" means an adverse effect on the
properties, assets, financial position, results of operations, indebtedness,
cash flows or contingent liabilities in excess of Ten Thousand Dollars
($10,000.00).
Section 1.21. "Minimum Net Assets" means Net Assets with a value of Four
Million Five Hundred Nineteen Thousand Six Hundred Ninety-four Dollars
($4,519,694.00).
Section 1.22. "Net Assets" means: (a) the total value of United's accounts
receivable, inventory, leasehold improvements and equipment (net of accumulated
depreciation), (b) reduced by the amount of United's accounts payable and
accrued expenses; provided, further, that Net Assets shall not include: (1) the
value of accounts receivable that have remained outstanding for more than ninety
(90) days following the invoice date; (2) the value of any finished goods that
have remained in United's inventory for a period greater than twelve (12)
months; or (3) the value of any Excluded Assets. The determination of Net Assets
shall be made in accordance with generally accepted accounting principles,
consistently applied.
Section 1.23. "Note" means the promissory note delivered to United on the
Closing Date pursuant to Section 2.2(b), and any replacement note issued by
Purchaser
pursuant to Section 2.4.
Section 1.24. "Plan" means any plan, program, policy, agreement or
arrangement maintained by the Companies to provide compensation or benefits for
any current or former employee, officer, director, shareholder, or consultant,
or any dependent or beneficiary of any of the foregoing persons, including,
without limitation, any "employee welfare benefit plan" or "employee pension
benefit plan" as defined in the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and any other: (a) profit sharing, pension, ESOP, 401(k)
or other retirement plans or programs, (b) current and deferred compensation,
severance, vacation, stock purchase, stock option, bonus and incentive
compensation benefits, and (c) medical, hospital, life, health, accident,
disability, death and other fringe and welfare benefits, including any split
dollar life insurance policies.
Section 1,25. "Proprietary Rights" means all trade names, business names,
brand names, trademarks, service marks, logos, copyrights, patents, internet
websites, internet domain names, trade secrets, labels, know-how, ideas, designs
and inventions, engineering drawings, models, designs, processes and other
intellectual property and proprietary information, including, but not limited to
any registration or application for registration therefore, and the right to the
use thereof.
Section 1.26. "Real Estate" means the real property owned by J.J.M.
described in Schedule 1.26, together with all buildings, structures, and
improvements thereon, leaseholds and J.J.M.'s right under all leases pertaining
thereto, and easements, rights-ofway, and other appurtenants thereto.
Section 1.27. "Real Estate Purchase Price" means the purchase price payable
to JJ.M. for the Real Estate, as provided in Section 2.3 of this Agreement.
Section 1.28. "Schedules" means the schedules referenced in and attached to
this Agreement, all of which shall be deemed a part hereof.
Section 1.29. "Sellers" means United,.J.J.M. and the Shareholders, jointly
and severally.
Section 1.30. "Subsidiary" means any entity in which the Companies,
individually or collectively, directly or indirectly, own a controlling
interest.
ARTICLE II
PURCHASE AND SALE OF ASSETS, REAL ESTATE AND GOODWIIL
Section 2. 1. Conveyance of Assets and Real Estate. Effective as of the
Closing Date, and subject to and in accordance with the terms and conditions set
forth in this Agreement: (a) United hereby transfers, conveys, assigns and
delivers to Purchaser all of the Assets, and (b) J.J.M. hereby transfers,
conveys, assigns and delivers to Purchaser the Real Estate. Sellers shall take
such further actions and execute such further
documents as maybe necessary to effectuate such conveyances, including, but not
limited to, the execution and delivery of corporate warranty deeds for the Real
Estate and any other documents of title.
Section 2.2. Asset Purchase Price. Subject to the adjustments and other
conditions set forth in this Agreement, Purchaser will pay to United on the
Closing Date the sum of Eleven Million One Hundred Five Thousand Dollars
($11,105,000.00), in full and final payment for the Assets and other rights and
benefits conveyed to Purchaser by United under this Agreement. The Asset
Purchase Price shall be payable as follows:
(a) The sum of Nine Million Six Hundred Five Thousand Dollars
($9,605,000.00) will be paid to United in immediately available
funds at Closing;
(b) Purchasers shall deliver to United a promissory note in the
principal sum of One Million Five Hundred Thousand Dollars
($1,500,000.00), on the terms set forth in Exhibit A of this
Agreement, but subject to such adjustments as are provided in
this Agreement.
Section 2.3. Purchase Price for Real Estate. Purchaser will pay to J.J.M.
the sum of One Million Three Hundred Ninety-Five Thousand Dollars
($1,395,000.00) in immediately available funds on the Closing Date, in fall and
final payment for the Real Estate.
Section 2.4. Adjustments to Asset Purchase Price. The Actual Net Assets
shall be determined by Seller's certified public accountants and a report
thereof delivered to Purchaser for review by Purchaser's accountants within
thirty (10) days after the Closing Date. The parties shall confer in good faith
to resolve any dispute that may arise with respect to the calculation of the
Actual Net Assets. Within thirty (30) days after delivery of the accountant's
report to Purchaser, the undisputed amount, if any, by which the Actual Net
Assets are greater than the Minimum Net Assets shall be paid to United by
Purchaser, and the undisputed amount, if any, by which the Actual Net Assets are
less than the Minimum Net Assets shall be paid to Purchaser by Sellers. Any
disputed amount with respect to the calculation of the Actual Net Assets shall
be resolved by the accounting firm of Xxxxx Xxxxxx & Company (or such other
independent certified public accountant as the parties may agree in the event
Xxxxx Xxxxxx & Company is unable or unwilling to provide such services, or in
the event Xxxxx Xxxxxx & Company shall have previously provided accounting
services to Sellers or Purchaser). The fees and expenses of the independent
certified public accountant shall be borne one-half by United and one-half by
Purchaser, unless the independent certified public accountant shall conclude in
its written determination that either United or Purchaser acted in bad faith, in
which event the fees and expenses of the independent certified public accountant
shall be paid entirely by the party determined to have acted in bad faith. Any
additional amount determined by such independent certified public accountant to
be owing to either United or Purchaser shall be paid to such party within thirty
(30) days after the parties' receipt of the determination of such accountant.
Any other provision of this Section notwithstanding, in the event that the total
amount payable to United or Purchaser under this Section exceeds the sum of Two
Hundred Fifty Thousand Dollars ($250,000.00), the amount in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00) shall be deemed added to or
subtracted from (as applicable) the principal balance of the Note and,
concurrently with the surrender of the original Note by United, Purchaser shall
deliver to United a replacement Note reflecting such adjustment.
Section 2.5.Allocation of Asset Purchase Price. Purchaser and Sellers agree
that the Asset Purchase Price shall be allocated as set forth in Schedule 2.5.
Buyer and Sellers will cooperate in the timely preparation of their respective
IRS Forms 8594 in connection with the transactions contemplated by this
Agreement, which shall reflect the above allocation of the Purchase Price.
Section 2.6. Assumed Liabilities: Real Estate Taxes and Assessments.
Purchaser hereby expressly assumes the Contracts and Plans identified on
Schedule 2.6.Purchaser further assumes and agrees to pay the accounts payable
and accrued expenses of United identified as to payee and amount on Schedule
2.6. Sellers expressly warrant and represent that there are no debts or other
obligations or liabilities of Sellers of any kind that will be binding upon or
chargeable against Purchaser or its assets by reason of the transactions
contemplated by this Agreement, except as set forth in Schedule 2.6. All
property taxes levied with respect to the Real Property shall be apportioned
between Sellers and Purchaser as of the Closing Date, based on the number of
days of the taxable period before and after the Closing Date. Sellers shall be
liable for the proportionate amount of such taxes attributable to the period
ending on the Closing Date, and Purchaser shall be liable for the proportionate
amount of such taxes that is attributable to the period beginning after the
Closing Date. Sellers shall remain liable for any assessments relating to the
Real Estate that become a lien on the Real Estate on or before the Closing Date.
Purchaser shall assume Sellers' liability for such real property taxes and
assessments to the extent of the amount of such taxes and assessments included
in Schedule 2.6 and in the calculation of Net Assets.
Section 2.7. No Other Assumption of Liabilities. Any other provision of
this Agreement notwithstanding, Purchaser is not assuming, and shall not be
deemed to have assumed, any liabilities or obligations of the Companies of any
kind or nature whatsoever, except as expressly set forth in Schedule 2.6. By way
of illustration, and not in limitation of the foregoing disclaimer, in no event
shall Purchaser be deemed to have assumed or taken the Assets or the Real Estate
subject to any liabilities of the Companies: (a) for any outstanding loans to
Sellers or the Companies, whether by financial institutions or any other person
or firm, or (b) for any claims for personal injury or property damage, or any
claims relating to or arising out of a violation of any statute, regulation or
other rule of law.
Section 2.8. Closing. The Closing shall be held at the offices of Xxxxxxx &
Pianowski, LLP, 000 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 on or before the
Drop Dead Date, as hereinafter defined, at such specific date and time as the
parties mutually agree. For purposes of this Section, the Drop Dead Date shall
be determined as follows:
(a) The Drop Dead Date shall mean June 30, 2001; provided, however,
that in the event that any delay in the Closing Date results from
any failure or refusal by Sellers
(or any of them) to complete or cooperate in the completion of
the Closing Transactions, or the failure or refusal of Sellers
(or any of them) to satisfy Purchaser's conditions to Closing as
set forth in Sections 7.1 through 7.8, the Drop Dead Date shall
be later of June 30, 2001 or the date on which such failure or
refusal is cured.
(b) In the event that the Closing Date does not occur on or before
the Drop Dead Date described in subsection (a), Purchaser may, by
written notice to United (an "Extension Notice"), extend the Drop
Dead Date for an additional thirty-one (31) days and, upon the
giving of such notice, Purchaser shall be liable to United for
the payment of the additional sum of Fifty Thousand Dollars
($50,000.00).
(c) In the event the Closing does not occur on or before the Drop
Dead Date (taking into account any extension of the Drop Dead
Date permitted under subsection (b) of this Section), United or
Purchaser may, by written notice to the other, declare this
Agreement to be terminated and of no further force or effect.
Unless otherwise agreed to by the parties in writing, the completion of the
Closing Transactions shall constitute an express acknowledgment by all parties
that all conditions to Closing have either been satisfied or waived.
ARTICLE III
WARRANTIES AND REPRESENTATIONS OF SELLERS
Sellers warrant, represent and affirm to Purchaser the truth and accuracy
of the following, both as of the date of execution of this Agreement and, if
later, as of the Closing Date (provided, however, that all warranties,
representations and affirmations of MJJ under this Article III shall be deemed
to have been made based upon her Best Knowledge, notwithstanding the absence of
any specific reference to Best Knowledge in any Section of this Article):
Section 3. 1. Capacity . The following Shareholders hold the following
offices with respect to the Companies: (a) WEJ is the Chief Executive Officer of
United and of J.J.M.; (b) WFJ is the Vice President of United and J.J.M.; (c)
AOJ is the Secretary-Treasurer of United and J.J.M. The Shareholders are legally
competent to make these warranties and representations in their individual
capacities as the owners of the shares, and (excluding MJJ) in their respective
capacities as officers of the Companies.
Section 3.2. Ownership of Shares. Shareholders are the owners of all of the
issued and outstanding shares of the capital stock of the Companies (in the
amounts set forth in Schedule 3.2), free and clear of all liens, encumbrances
and adverse claims whatsoever. Each of such shares is duly and validly
authorized and issued, fully paid and non-assessable, and was not issued in
violation of the preemptive rights of any past or present shareholder. Except
for the shares owned by Shareholders, there are no outstanding options,
warrants, rights or other agreements or commitments of any character relating to
the issuance or sale of any shares of capital stock of, or other equity
ownership interest in the Companies.
Section 3.3. Authority for Transaction. Sellers have full and lawful right,
power, and authority to execute, deliver and perform this Agreement, and
consummate the transactions contemplated herein. This Agreement has been duly
executed and delivered by Sellers, and it and its provisions constitute legal,
valid and binding obligations of Sellers, enforceable against Sellers in
accordance with its terms and conditions, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
principles of equity (whether applied in a proceeding at law or in equity).
There are no claims, lawsuits, actions, arbitrations, administrative or other
proceedings, governmental investigations, audits or inquiries pending or
threatened against Sellers that limit, impair or otherwise affect, Sellers'
right or authority to enter into this Agreement or the performance by Sellers of
their obligations hereunder.
Section 3.4. Organization. The Companies are duly organized, validly
existing and in good standing under the laws of the State of Indiana, and each
is duly qualified or licensed as a foreign corporation authorized to do business
in all other states in which any of their assets or properties may be situated
or where their business is conducted except where the failure to obtain such
qualification or license will not have a Material Adverse Effect. Schedule 3.4
contains: (a) the Companies' Articles of Incorporation, certified by the
Secretary of State of Indiana, (b) the Companies' By-Laws, certified by the
Companies' respective Secretaries. Each and all of such documents are complete
and correct, and (c) a list of all states in which the Companies are admitted to
do business.
Section 3.5. Subsidiaries. The Companies have no Subsidiaries, and neither
of the Companies owns securities of any other corporation, partnership, firm,
association or business organization, entity or enterprise.
Section 3.6. Predecessors. Schedule 3.6 is a listing of all names under
which any of the Companies have done business, as well as the names of all
predecessors of the Companies, including the names of any entities from which
the Companies previously acquired significant assets.
Section 3.7. Affiliate Relationships. Except as set forth in Schedule 3.7,
neither Sellers nor any affiliate of Sellers, nor any director, officer or
employee of the Companies owns, directly or indirectly, in whole or in part, any
property, asset or right, tangible or intangible, which is associated with any
property, asset or right owned by the Companies or which the Companies are
operating or using or the use of which is necessary for the Business. Schedule
3.7 further includes a description of any relationships which Sellers or any
director, officer, or employee of the Companies have with any other corporation,
partnership, firm, association or business organization, entity or enterprise
which is a competitor, potential competitor (based upon the nature of such
potential competitor's business as of the Closing Date), supplier or customer of
any of the Companies. The term "affiliate" means with respect to any person (the
term "person" to include, for purposes of this Agreement, any business entity),
any other person which directly or indirectly, by itself or through one or more
intermediaries, controls, or is
controlled by, or is under direct or indirect common control with, such person.
Section 3.8. Consents. No approval, consent, order or action of or filing
with any court, administrative agency, governmental authority or other third
party is required for the execution, delivery or performance by Sellers of this
Agreement.
Section 3.9 Proprietary Rights. The Companies have full and sufficient
rights to use all Proprietary Rights necessary for the present operation of
their businesses and the marketing, distribution, sale and use of the materials
used and the products sold by the Companies. None of the ownership, access to,
use or exercise of the Proprietary Rights by the Companies infringes on the
rights of any other party, and all Proprietary Rights are valid and enforceable.
All know-how or proprietary information in the Companies' possession has been
independently developed or is generally well known or has been disclosed to the
Companies by a third party without such third party having breached any
obligation to another person or entity.
Section 3.10. Title. United owns outright, and has full legal and
beneficial title to all of the Assets, free and clear of all liens, pledges,
mortgages, security interests, conditional sales contracts and encumbrances,
except as set forth in Schedule 3.10.
Section 3.11. Defaults. Sellers are not in default under or in violation of
(nor have they been alleged to be in default under or in violation of), and the
execution and delivery of the Agreement and the consummation of the transactions
contemplated hereby will not result in a default by any of the Sellers under, or
a violation of: (a) any mortgage, indenture, charter or bylaw provision,
provision of any Plan, contract, agreement, lease, commitment or other
instrument of any kind to which any of them are a party or by which any of them
or any of their properties or assets may be bound or affected, or (b) any law,
rule or regulation applicable to any of the Sellers, or any court injunction,
order or decree, or any valid and enforceable order of any governmental agency
in effect having jurisdiction over them or any Plan.
Section 3.12. Investment Companies. Neither of the Companies is an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Companies Act of 1940, as amended, or a "holding
company", a "subsidiary company" of a "holding company" or an "affiliate" of a
"holding company" or a "public utility" within the meaning of the Public Utility
Holding Companies Act of 1935, as amended.
Section 3.13. Financial Statements. The Financial Statements present
accurately and fairly, in all material respects, the financial condition of the
Companies as of the dates indicated thereon, and present accurately and fairly
in all respects the results of the Companies' operations for the periods
indicated thereon, all in accordance with generally accepted accounting
principles, consistently applied.
Section 3.14. No Material Adverse Xxxxx . Except as set forth in Schedule
3.14, since the Financial Statement Date, there has not been: (a) any change in
the Companies' organizational documents, (b) any material adverse change of any
nature
whatsoever in the financial condition, assets, liabilities (contingent or
otherwise), income, business or prospects of the Companies; (c) any damage,
destruction or loss (whether or not covered by insurance) materially adversely
affecting the properties or business of the Companies; (d) any change in the
authorized capital of the Companies or in their securities outstanding or any
change in their ownership interests; (e) any declaration or payment of any
dividend or distribution in respect of equity ownership interests in the
Companies or any direct or indirect redemption, purchase or other acquisition of
such equity ownership interests, other than distributions of cash generated in
the ordinary course of the Companies' business; (f) any contract or commitment
entered into by the Companies or any agreement by the Companies to incur any
liability or make any capital expenditures in excess of Ten Thousand Dollars
($10,000.00), except in the normal course of business; (g) any increase in the
compensation, bonus, sales commissions or fee arrangement payable or to become
payable by the Companies to any of their officers, directors, stockholders,
employees, consultants or agents, except such as have occurred in the ordinary
course of the Companies' business and consistent with past practice; (h) any
work interruptions, labor grievances or claims filed, proposed law or regulation
enacted (to the Best Knowledge of Sellers), or the occurrence of any event or
condition of any character adversely affecting the business of future prospects
of the Companies (other than general economic conditions); (i) any creation,
assumption or permitting to exist any mortgage, pledge or other lien or
encumbrance upon any assets or properties of the Companies, whether now owned or
hereafter acquired; (j) any sale or transfer, or any agreement to sell or
transfer, any assets with a collective value in excess of Ten Thousand Dollars
($10,000.00), properties or rights of the Companies to any person, including,
without limitation, Sellers and their respective affiliates; (k) any
cancellation, or agreement to cancel, any indebtedness or other obligation owing
to the Companies, including, without limitation, any indebtedness or obligation
of Sellers or any of their affiliates; (1) any plan, agreement or arrangement
granting any preferential rights to purchase or acquire any interest in any of
the assets, properties or rights of the Companies or requiring consent of any
party to the transfer and assignment of any such assets, properties or rights;
(m) any purchase or acquisition, or agreement, plan or arrangement to purchase
or acquire, any property, rights or assets of the Companies; (n) any negotiation
for the acquisition of any business or start-up of any new business; (o) any
merger or consolidation or agreement to merge or consolidate with or into any
other corporation; (p) any waiver of any material rights or claims of the
Companies; (q) any breach, amendment or termination of any material contract,
agreement, license, permit, permit application or other right to which the
Companies are a party; (r) any discharge, satisfaction, compromise or settlement
of any claim, lien, charge or encumbrance or payment of any obligation or
liability, contingent or otherwise, other than current liabilities as of the
Financial Statement Date, current liabilities incurred since the Financial
Statement Date in the ordinary course of business and prepayments of obligations
in accordance with normal and customary past practices; or (s) any material
transaction by the Companies outside the ordinary course of business, or any
transaction prohibited hereunder.
Section 3.15. Undisclosed Liabilities. The Companies do not have any debts
or liabilities, whether accrued or contingent, due or not yet due, liquidated,
unliquidated, or otherwise, except as and to the extent disclosed or reflected
in the Financial Statements or as set forth in Schedule 3.15. In the case of any
liabilities that are not fixed, an estimate
of the maximum amount which may be payable is set forth in Schedule 3.15.
Section 3.16. Taxes. The Companies have filed all requisite federal, state,
local and other tax returns, information returns, declarations and reports for
all fiscal periods ended on or before the Closing Date, and there are no claims
(nor is there any matter pending which may result in a claim) against the
Companies for federal, state or local income, sales, use, franchise or other
taxes for any period or periods prior to and including the Closing Date and no
notice of any claim, whether pending or threatened, for taxes has been received
which would create a lien on the Companies' assets or adversely affect the
Companies or the Assets. The amounts shown as accruals for taxes on the
Financial Statements are sufficient for the payment of all taxes of any kind or
nature whatsoever for all periods ended on or before the date of the Current
Balance Sheet. Copies of the federal, state and local income tax returns and
franchise tax returns of the Companies (collectively, "Tax Returns") for their
last three (3) fiscal years have been furnished to Purchaser. The Companies have
not obtained any extensions of time in which to file any federal, state and
local income tax returns and franchise tax returns that have not yet been filed.
The Companies have not waived any statute of limitations with respect to
federal, state, or local income, sales, use, franchise or other taxes or agreed
to any extensions of time with respect to a tax assessment or deficiency, except
for such waivers or extensions which, by their terms, have lapsed as of the date
hereof
Section 3.17. Accounts Receivable and Payable, Customer and Supplier
Relations. The accounts receivable reflected on the Financial Statements arose
in the ordinary course of the United's business and, except as reserved against
on the Financial Statements, are collectible in the ordinary course of business
and free of any claims, rights or defenses of any account debtor. All accounts
payable reflected on the Financial Statements arose from good faith arms-length
transactions in the ordinary course of business. Sellers further warrant,
represent, and affirm that:
(a) none of United's customers or suppliers have canceled or
substantially reduced, or are currently attempting or threatening
to cancel or substantially reduce, the services or products they
purchase from or supply to United;
(b) United has complied with all commitments and obligations and are
not in default under any contracts and agreements with customers
or suppliers, no notice of default has been received by United,
and there are no defaults by customers, suppliers and other
parties to such contracts and agreements;
(c) United has never been a party to any governmental contracts
subject to price redetermination or renegotiation.
Section 3.18. Authority to Operate. Except as described in Schedule 3.18,
the Companies have full power, authority and legal right and have all licenses,
permits, qualifications, and other documentation (including permits required
under applicable Environmental Law) necessary to own and/or operate their
businesses, properties and assets and to carry on their businesses as being
conducted on the Closing Date; and such businesses are now being conducted and
such assets and properties are being owned
and/or operated in compliance with all applicable laws (including Environmental
Law), ordinances, rules and regulations of any governmental agency of the United
States, any state or political subdivision thereof, any foreign jurisdiction,
all applicable court or administrative agency decrees, awards and orders and all
such licenses, permits, qualifications and other documentation, except where the
failure to comply will not have a Material Adverse Effect, and there is no
existing condition or state of facts which would give rise to a violation
thereof or a liability or default thereunder, except where a violation,
liability or default will not have a Material Adverse Effect.
Section 3.19. Legal Actions. Except as described in Schedule 3.19, no legal
action, suit, audit, investigation, unfair labor practice charge, complaint,
claim, grievance, or proceeding by or before any court, arbitration panel,
governmental authority or third party is pending or threatened which involves or
may involve the Companies or their now or previously owned or operated assets,
operations, properties or businesses, or the Sellers' interests in the
Companies.
Section 3.20. Assets and Inventory. All of United's inventory is of good
and merchantable quality, free from defects, and all other tangible assets are
in good working order and condition, ordinary wear and tear excepted. All of the
inventory located on United's business premises is owned by United, and no
inventory or other assets are being stored for the benefit of any third party.
Section 3.21. Employee Benefit Matters. The Plans listed in Schedule
3.26(l) are the only employee benefit plans and agreements maintained by the
Companies for the benefit of their shareholders, members, officers, directors,
employees, former employees, or independent contractors. Each Plan maintained by
the Companies at any time has been operated and administered in substantial
compliance with the provisions of the Employee Retirement Income Security Act of
1974 ("ERISA"), and the provisions of the Internal Revenue Code ("Code")
applicable to it. Neither the Companies nor any of their assets are subject to
nor can they reasonably be expected to become subject to a lien as a result of
the existence or operation of any Plan. The Companies have not had an
"obligation to contribute" (as defined in ERISA Section 4212) to a
"multiemployer pension plan" (as defined in ERISA Sections 4001(a)(3) and
3(37)(A)) at any time. No facts exist which will result in a material increase
in the premium costs of any Plan for which benefits are insured or a material
increase in benefit costs of any Plan which provides self-insured benefits. As
of the Closing Date, the Companies have no material liabilities under any Plan
that are not reflected in the Financial Statements. No facts or circumstances
exist under which Purchaser will incur any liability, nor will the Assets or the
Real Estate be chargeable with any liability, relating to any act or omission of
the Companies or their agents or representatives with respect to Plan at any
time maintained by the Companies. With respect to the Plans identified in
Section 2.6:
(a) all premiums payable under any insured Plan have been fully paid,
and all contributions required to be made to any other Plan have
been made;
(b) all Plans required by law to be funded have been fully funded;
and
(c) the assets to be conveyed to Purchaser pursuant to Section 1.5(g)
are not less than the accrued benefits of the participants under
the United Expressline, Inc. Deferred Compensation Plan.
Section 3.22. Environmental, Health and Safety Matters. Except as set forth
in Schedule 3.22, or as disclosed in the Phase I environmental surveys obtained
by Purchaser dated April 6, 2001 with respect to the White Pigeon, Michigan
portion of the Real Estate, and dated May 21, 2001 with respect to the Bristol,
Indiana portion of the Real Estate:
(a) The Companies are in full compliance in all material respects
with all Environmental Laws.
(b) The Companies have taken all actions reasonably necessary to
permit the Companies to remain in compliance with all
Environmental Laws, as now in effect.
(c) There are no claimed violations or citations, nor any pending or
threatened claims or complaints, against the Companies relating
to Environmental Laws.
(d) None of the Companies has received notification that it is a
potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA),
administrative proposals to list property owned or operated by
Companies on the National Priorities List under CERCLA, or the
state-equivalent thereto, demand letters, notices of violations,
or the like.
(e) No equipment, hazardous waste, building materials, toxic waste,
hazardous substances, petroleum products, or any other regulated
substances have been, directly or indirectly, disposed or,
leaked, buried, or deposited in or on the ground or within the
boundaries of the properties now or previously owned or leased by
Companies in any manner which violated in any material respect
any Environmental Laws.
(f) Nothing other than permitted waste has been discharged into the
sanitary waste disposal system of the properties now or
previously owned or leased by Companies.
(g) There are no underground storage tanks, active or abandoned,
located on or under any properties now or previously owned or
leased by Companies.
(h) The Companies have not directly transported or directly arranged
for the transportation of any hazardous material to any location
listed or proposed for listing on the National Priorities List
pursuant to any Environmental Law, or an any federal or state
list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to
claims against the Companies for any remedial work, damage to
natural resources or personal injury, including claims under any
Environmental Law.
(i) There are no materials containing urea formaldehyde, asbestos,
radioactive materials or polychlorinated biphenyl on or in the
properties owned or leased by Companies.
(j) No condition exists at, on or under any property now or
previously owned or leased by Companies which, with the passage
of time, or the giving of notice or both, would give rise to
liability under any Environmental Law that, singly or in the
aggregate, have, or may reasonably be expected to have, a
Material Adverse Effect.
In the event of any unintentional misrepresentation under this Section resulting
from Sellers' lack of actual knowledge that any representation set forth above
is inaccurate or untrue, Sellers shall have no liability to Purchaser for such
misrepresentation except to the extent that Purchaser suffers or sustains any
expense or other liability with respect to such misrepresentation as a result of
any claim, action or proceeding by any governmental entity or other third party.
Section 3.23. Employment Matters. The Companies have not experienced labor
interruptions over the past three years and the relationship between the
Companies and their employees is normal. Except as set forth in Schedule 3.23:
(a) neither the Companies nor any employee of the Companies is in
violation of any term of any express or implied employment
contract, patent disclosure agreement, secrecy agreement, or any
other contract or agreement relating to the relationship of any
such employee with the Companies;
(b) the Companies are not in violation of any material federal, state
or local wage and hour, employment discrimination, occupational
safety, or other labor or employment statutes or regulations, nor
have the Companies received notice of a claim of any such
violation;
(c) no union has ever been certified, nor have the Companies ever
recognized any union, as the collective bargaining representative
of any of the employees of the Companies, and the Companies are
not now and have never been parties to any collective bargaining
agreement;
(d) to Sellers' Best Knowledge, no union organizing activity has
occurred or is now occurring with respect to any of the employees
of the Companies.
Section 3.24. Finder or Broker. Sellers acknowledge that they have retained
the services of Bank One Capital Markets, Inc. in connection with this
transaction, that they shall be solely responsible for any fees or other amounts
payable to Bank One Capital Markets, Inc. in connection with this transaction,
and that no such fees or other amounts shall be included in the computation of
the Actual Net Assets. Except as set forth in the preceding sentence, there is
no firm, corporation, agency, or other person that is entitled to a finder's fee
or any type of brokerage commission in relation to or in connection with the
transactions contemplated by this Agreement as a result of any agreement or
understanding with Sellers or the Companies, or any entity or person
affiliated with Sellers or the Companies.
Section 3.25. Representations Regarding the Real Estate. With respect to
the Real Estate, Sellers warrant, represent and affirm that:
(a) Absence of Liens and Encumbrances. J.J.M. owns outright, and has
full legal and beneficial title to the Real Estate, free and
clear of all liens, pledges, mortgages, security interests,
conditional sales contracts, encumbrances and claims of any kind,
excepting only such easements and rights-of-way affecting the
Real Estate as are set forth in Schedule 3.25(a).
(b) No Breach or Default. Except as set forth in Schedule 3.25(b), no
Seller has given, nor has it received, any written notice that a
breach or an event of default exists under or with respect to any
agreement, arrangement, Contract, covenant, condition, deed, deed
of trust, right-of-way, easement, mortgage, restriction, or other
document granting any Seller title to or an interest in or
otherwise affecting the Real Estate, and to the best of knowledge
of any Seller no condition or event has occurred that with the
giving of notice, the lapse of time, or both would constitute a
breach or event of default of any such agreement or document, by
any Seller or any other person.
(c) No Condemnation. No condemnation, eminent domain, or similar
proceeding exists, is pending or, to the best knowledge of any
Seller, is threatened with respect to, or that could affect, any
Real Estate or the insurability or marketability of the title
thereto.
(d) Parties in Possession. Except as set forth on Schedule 3.25(d),
there are no parties in possession of any portion of the Real
Estate as lessees, sublessees, tenants at sufferance, or
trespassers.
(e) Site Obligations. Except as set forth on Schedule 3.25(e), the
Real Estate is not subject to any condition or obligation to any
governmental entity or other person requiring the owner or any
transferee thereof to donate land, money, or other property or to
make off-site public improvements.
(f) Assessments. No charges or assessments by any public authority or
any other person or entity for public improvements or otherwise
made against the Real Estate and required to be paid by any
Seller are unpaid, including, without limitation, those for
construction of sewer lines, water lines, storm drainage systems,
electric lines, natural gas lines, streets (including perimeter
streets), roads, and curbs.
(g) Third Party Rights. Except as set forth on Schedule 3.25(g), no
Seller has granted to any person or entity any Contract or other
right to the use of any portion of the Real Estate or any
facility or amenity on or relating to the Real Estate for any
purpose.
(h) Options. No Seller has entered into any Contract with any person
or entity other than Purchaser to sell all or a portion of the
Real Estate and has not given any person or an option or right of
first refusal to purchase all or any part of or interest in the
Real Estate that is enforceable or exercisable now or at any time
in the future.
(i) Mechanics Liens. There are no unpaid claims for labor done upon
or materials furnished with respect to the Real Estate in respect
of which any liens have been or maybe filed.
(j) Access. Each parcel of the Real Estate has direct access (or
indirect access through valid private easements or rights-of-way)
to a publicly dedicated right-of-way.
(k) Fee and Leasehold Interests, Etc. The Real Estate constitutes all
of the real property held for use in connection with, for the
conduct of, or otherwise material to, the Business.
(1) Zoning . The Real Estate is properly zoned for its current use,
and there presently exist no violations of any applicable zoning
ordinances or restrictions.
(m) Utilities. All utilities servicing the Real Estate are operated
through valid public or private easements or rights-of-way, and
all installation and connection charges with respect thereto have
been paid in fall.
(n) Improvements. The improvements upon the Real Estate are all
located entirely within the bounds of the Real Estate and there
are no encroachments of improvements from adjoining properties
upon the Real Estate.
Section 3.26. Other Disclosures. Sellers further warrant, represent and
affirm that:
(a) Schedule 3.26(a) is a list of the products of the Companies, all
product registrations used by the Companies, and all toxicology
studies and environmental studies of the Companies. All material
safety data sheets shall be made available at Purchaser's request
for inspection and copying on or before the Closing Date.
(b) Schedule 3.26(b) is a list of the names, start dates and current
annual wage rates of all salaried and hourly regular full-time
and part-time employees of the Companies as of the Closing Date,
together with a summary of the bonuses, additional compensation
and other like benefits, if any, paid or payable to each employee
and the last date, if any, on which each employee received a
raise in compensation, or a bonus.
(c) Schedule 3.26(c) contains a diagram of all real property owned or
leased by the Companies, and a list of documents reflecting any
other real property interests owned of record or beneficially or
leased as lessee by the Companies.
(d) Schedule 3.26(d) is a list, as of the Closing Date, showing
itemized values of all inventory. All other assets owned or
leased by the Companies which have been capitalized and have an
unamortized or undepreciated value of One Thousand Dollars
($1,000.00) or more, including machinery, equipment, vehicles and
rolling stock, are listed on Schedule 1.5.
(e) Schedule 3.26(e) is a list of raw materials or other property
that has been consigned to the Companies, or is otherwise owned
by a third party, and has a market value exceeding One Thousand
Dollars ($ 1,000.00).
(f) Schedule 3.26(f-g) is an accurate list of all workers'
compensation and other insurance claims (other than health
insurance claims) received for the past three policy years.
Sellers have provided Purchaser with a copy of each policy of
insurance maintained by the Companies (to the extent available)
together with a description of the premiums, coverages, insurers,
expiration dates and deductibles. Such insurance is currently in
full force and effect, the Companies' insurance has never been
canceled, the Companies have never been denied coverage or
experienced a substantial increase in premiums or a substantial
reduction in coverage from one policy period to the next policy
period, such coverage is adequate in character and amount, and
such coverage is placed with financially sound and reputable
insurers unaffiliated with either Sellers or the Companies.
(g) Schedule 3.26(f-g) is a description of all claims, demands,
actions or proceedings brought by or against the Companies, or
otherwise pending against the Companies, involving an amount in
excess of Five Thousand Dollars ($5,000.00), at any time during
the five (5) year period preceding the Closing Date.
(h) Schedule 3.26(h) is a list and summary description of, or copies
of, an governmental licenses and permits of the Companies.
(i) Schedule 3.26(i) is a list of all of the Companies' Proprietary
Rights, indicating the registered and beneficial owner and the
date of grant thereof, and a description of all license fees and
royalties (or the basis of calculation thereof) required to be
paid now or in the future by the Companies for the use and
practice of their Proprietary Rights.
(j) Schedule 3.26(j) is a list of all Contracts having a value in
excess of One Thousand Dollars ($1,000.00). For Purposes of this
Section, a Contract shall be deemed to have a value in excess of
One Thousand Dollars ($1,000.00) if it provides for: (1) the
receipt or payment by United of a sum in excess of One Thousand
Dollars ($1,000.00) over a period of less than one (1) year; (2)
the receipt, delivery or use by United of goods, services,
facilities or other rights or property with a value in excess of
One Thousand Dollars ($1,000.00); or (3) an unexpired term as of
the Closing Date in excess of one (1) year. As used in this
Section, the term "Contract" shall also include any letter,
agreement, certification or other oral or written representation
to any wholesaler, distributor, franchisee, governmental agency
or other person or entity regarding the authority of any person,
firm or other entity to act as a reseller of any of the
Companies' products or services.
(k) Schedule 3.26(k) is a list of all obligations, contingent or
otherwise, covering any of the Companies' employees under any
employment or consulting agreement, and copies of any document
memorializing any such obligations.
(1) Schedule 3.26(l) is a list of all Plans maintained by the
Companies, a description of each such Plan, and a description of
the cost to the Companies of funding and administering each such
Plan.
Section 3.27. Insolvency Upon the closing of the transactions contemplated
by this Agreement, none of the Sellers will be insolvent.
Section 3.28. Full Disclosure. No representation or warranty by Sellers in
the Agreement, and no statement made or delivered by the Companies or Sellers to
Purchaser in or in connection with the Agreement, contains or will contain any
untrue statement of a material fact or omits or will omit any material fact
necessary in order to make the statements herein or therein, in light of the
circumstances under which they are or were made, not misleading.
Section 3.28. Survival and Expiration of Sellers' Representations and
Warranties. The warranties and representations set forth in this Article shall
survive for a period of fifteen (15) months following the Closing Date;
provided, however, that the expiration of such period shall not extinguish any
claim which may be brought by Purchaser against Sellers for fraud, and any such
claim shall survive for the applicable statute of limitations.
ARTICLE IV
WARRANTIES AND REPRESENTATIONS OF PURCHASER
Purchaser warrants, represents and affirms to Sellers the truth and
accuracy of the following, both as of the date of execution of this Agreement
and as of the Closing Date:
Section 4.1. Authority for Transaction. Purchaser has full right, power,
and authority to execute, deliver and perform this Agreement, and consummate the
transactions contemplated herein. This Agreement has been duly executed and
delivered by Purchaser, and it and its provisions constitute, legal, valid and
binding obligations of Purchaser, enforceable against it in accordance with its
terms and conditions, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether applied in a proceeding at law or in equity). There are no claims,
lawsuits, actions, arbitrations, administrative or other proceedings,
governmental investigations, audits or inquiries pending or threatened against
Purchaser that limit, impair or otherwise affect, its right or authority to
enter into this Agreement or the performance by Purchaser of its obligations
hereunder.
Section 4.2. Organization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Indiana,
and is duly qualified or licensed to do business in all other states in which
any of its assets or properties may be situated or where its business is
conducted, except where the failure to obtain such qualification or license will
not have a Material Adverse Effect. Schedule 4.2 is: (a)
Purchaser's Articles of Incorporation, certified by the Secretary of State of
Indiana, and (b) Purchaser's Code of By-Laws, certified by its Secretary. Each
and all of such documents are complete and correct.
Section 4.3. Consents. No approval, consent, order or action of, or filing
with, any court, administrative agency, governmental authority or other third
party is required for the execution, delivery or performance by Purchaser of
this Agreement.
Section 4.4. Defaults. Purchaser is not in default under or in violation
of; and the execution and delivery of the Agreement and the consummation of the
transactions contemplated hereby will not result in a default by Purchaser under
or a violation of: (a) any mortgage, indenture, charter or bylaw provision,
contract, agreement, lease, commitment or other instrument of any kind to which
Purchaser is a party or by which Purchaser or any of its properties or assets
may be bound or affected, or (b) any law, rule or regulation applicable to
Purchaser or any court injunction, order or decree, or any valid and enforceable
order of any governmental agency in effect having jurisdiction over Purchaser,
which default or violation could adversely affect the ability of Purchaser to
consummate the transactions contemplated hereby or will have a Material Adverse
Effect.
Section 4.5. Investment Companies. Purchaser is not an "investment company"
or a company "controlled" by an "investment company" within the meaning of the
Investment Companies Act of 1940, as amended, or a "holding company", a
"Subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" or a "public utility" within the meaning of the Public Utility Holding
Companies Act of 1935, as amended.
Section 4.6. Finder or Broker. There is no firm, corporation, agency, or
other person that is entitled to a finder's fee or any type of brokerage
commission in relation to or in connection with the transactions contemplated by
this Agreement as a result of any agreement or understanding with Purchaser, or
any entity or person affiliated with Purchaser.
Section 4.7. Insolvency Upon the closing of the transactions contemplated
by this Agreement, Purchaser will have received equity investments of not less
than One Million Two Hundred Fifteen Thousand Dollars ($1,215,000.00), and will
not be insolvent.
Section 4.8. Full Disclosure. No representation or warranty by Purchaser in
the Agreement, and no statement made or delivered to by Purchaser to Sellers in
or in connection with the Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit any material fact necessary
in order to make the statements herein or therein, in light of the circumstances
under which they are or were made, not misleading.
Section 4.9. Survival and Expiration of Representations and Warranties of
Purchaser. The warranties and representations set forth in this Article shall
survive for a period of fifteen (15) months following the Closing Date;
provided, however, that the
expiration of such period shall not extinguish any claim which may be brought by
Sellers against Purchaser for fraud, and any such claim shall survive for the
applicable statute of limitations.
ARTICLE V
ADDITIONAL COVENANTS AND AGREEMENTS
Section5.1. Nondisclosure and Non-Piracy Agreement Sellers acknowledge and
agree that they have developed and maintained information regarding the
customers of United that is unique and valuable in servicing such customers, and
that the names, addresses, sales history, and other information and records
regarding the Companies' customers, as well as United's pricing information,
manufacturing methods, and other methods and procedures utilized in the
Business, are a unique and valuable asset, are not readily available from other
sources. Sellers further acknowledge and agree that the foregoing constitute
trade secrets and goodwill of United (all of which is hereinafter referred to as
"Trade Secrets"), the conveyance of which was a material inducement to Purchaser
to enter into and perform this Agreement. In recognition of the foregoing,
Sellers agree to keep all such Trade Secrets confidential, and further agree
that for a period of five (5) years following the Closing Date, Sellers shall
not (except in the proper performance of their duties under any employment or
consulting agreements with Purchaser), directly or indirectly:
(a) disseminate or disclose to any person or firm, or use in any
commercial manner, any Trade Secret;
(b) advise or in any way solicit or encourage any of United's
customers to discontinue or curtail their business with
Purchaser;
(c) assist or encourage any person or firm engaged in whole or in
part in any business that is substantially similar to the
Business to solicit the United's customers; or
(d) make or publish false or disparaging remarks regarding Purchaser
or any of the products or services provided by the Business.
Sellers agree that in the event of any breach of the restrictions imposed under
this Section with respect to any customer, the restrictive period described in
this Section, as it relates to such customer, shall be extended for a like
period beginning on the date on which each and all of Sellers cease the conduct
which gives rise to such breach. For purposes of this Section, the term
"customer" shall mean only such customers with which United transacted business
during the three (3) year period immediately preceding the Closing Date, and
shall also include any business or company which acquires, is acquired by, or
merges with any such customer (whether in a transaction involving stock or
assets) during the period that the restrictions imposed by this Section remain
in effect and for the duration of such period.
Section 5.2. Noncompetition Agreement. In order to protect the Trade
Secrets,
and as a further inducement for Purchaser to enter into this Agreement, Sellers
agree that, for a period of five (5) years following the Closing Date, they
shall not (except in the proper. performance of duties under any employment or
consulting agreements with Purchaser) operate, manage, own any interest in, or
be employed by any person or firm engaged in whole or in part in a business
substantially the same as the Business, anywhere in the United States of
America; provided, however, that nothing contained in this Section shall
prohibit Sellers from engaging in the businesses described in Schedule 5.2.
Sellers agree that in the event of any breach of the restrictions imposed under
this Section, the restrictive period described in this Section shall be extended
for a like period beginning on the date on which each and all of Sellers cease
the conduct which gives rise to such breach.
Section 5.3. Enforcement of Restrictive Provisions. Sellers acknowledge and
agree that:
(a) The restrictions set forth in Sections 5.1 and 5.2, including,
but not limited to, the time periods and geographic limitations,
are reasonable and appropriate. The parties further acknowledge
that such restrictions are necessary for the protection of the
Trade Secrets acquired by Purchaser under this Agreement.
(b) In the event that any of the provisions of Section 5.1 or 5.2
relating to the geographic area of restriction, the period of
restriction or the scope of such restriction shall be determined
by any court of competent jurisdiction to exceed the maximum
enforceable area, period or scope, the geographic area of
restriction, the period of restriction, and the scope of the
restriction, as applicable, shall be deemed to be the maximum
enforceable area, period and scope, and such court is expressly
authorized by the parties to reform this Agreement to so provide.
(c) In the event that any provision of Section 5.1, 5.2 or 5.3 is
held to be unenforceable or invalid by any court of competent
jurisdiction, and not subject to reformation under subsection
(b), such provision shall be deemed severed from this Agreement
and the remaining provisions shall continue in full force and
effect to the same extent as if such invalid or unenforceable
provision had not been included in this Agreement.
(d) In the event of a breach by Sellers of any of the provisions of
Section 5.1 or 5.2 of this Agreement, the damages sustained by
Purchaser would be impossible to ascertain with certainty, and
Purchaser would have no adequate remedy at law. Purchaser shall,
therefore, be entitled to injunctive relief, without bond, to
restrain any such breach or threatened breach by Sellers;
provided, however, that nothing contained in this Agreement shall
operate to preclude Purchaser from pursuing any other lawful
remedies available in the event of any actual or threatened
breach of any provision of this Agreement. Purchaser shall be
entitled to an award of its costs, expenses and attorneys' fees
incurred in successfully enforcing its rights under the
provisions of Section 5.1 or 5.2, including any action for
injunctive relief.
(e) The provisions of Sections 5.1, 5.2 and 5.3 shall be deemed
independent
of any other provision of this Agreement, and the existence of
any claim or cause of action by Sellers against Purchaser shall
not constitute a defense to the enforcement of said sections by
Purchaser.
The provisions of Sections 5.1, 5.2 and 5.3 shall inure to the benefit of the
successors of Purchaser. The liability of each Shareholder relating to any
breach of Section 5.1 or 5.2 of this Agreement shall be several and not joint,
and no Shareholder shall be liable for a breach by any other Shareholder of such
Sections.
Section 5.4 ' Employment of Xxxx X. Xxxxxxx Purchaser shall employ Xxxx X.
Xxxxxxx on the terms and conditions on such terms as are mutually acceptable to
them.
Section 5.5. Employment of Stockholders. Purchaser may, in its sole
discretion, elect to employ any of the Stockholders on such terms and conditions
as may be mutually satisfactory to Purchaser and any such Stockholder.
Section 5.6. Conduct of Business in Normal Course through Closing Date. In
the event that the date of execution of this Agreement is not the Closing Date
then, at all times through and including the Closing Date, Sellers shall:
(a) carry on the Business and activities diligently and in
substantially the same manner as the Business previously has been
carried on, and consistent with the representations and
warranties set forth in Section 3.14;
(b) not institute any new methods of purchase, sale, lease,
management, accounting or operation that will vary materially
from the methods used by the Sellers as of the date of this
Agreement; and
(c) maintain their books and records in accordance with past
practices.
Section 5.7. Further Cooperation. At all times from and after the Closing
Date, the parties shall cooperate as follows:
(a) Sellers shall, upon the request and at the expense of Purchaser,
and Purchaser shall, upon the request and at the expense of
Sellers, promptly execute and deliver such further instruments
and other documents, and perform or cause to be performed such
further acts, as may be reasonably required to evidence or
effectuate the sale, conveyance, transfer, assignment, and
delivery hereunder of the Assets and the Real Estate, the
assumption by Purchaser of the Contracts, Plans and liabilities
set forth in Schedule 2.6, the performance by the parties of any
of their other respective obligations under this Agreement, and
to carry out the purposes and intent of this Agreement.
(b) Purchaser shall retain possession of all files and records
transferred to Purchaser pursuant to Section 1.5(d) of this
Agreement for a period of seven (7) years from the Closing Date.
In addition, from and after the Closing Date, upon reasonable
notice and during normal business hours, Purchaser shall provide
access to Sellers and their attorneys, accountants, and other
representatives, at Sellers' expense, to such files
and records as Sellers may reasonably deem necessary to properly
prepare for, file, prove, answer, prosecute, and/or defend any
claims, demands, actions or proceedings, including, but not
limited to, any tax return, audit, inquiry or protest; provided,
however, that Sellers shall conduct any review or examination of
such documents in such manner as to avoid interference with
Purchaser's conduct of the Business. In the event that Purchaser
at any time proposes to dispose of such documents, Purchaser
shall give Sellers twenty (20) days advance written notice,
during which period Sellers may elect, at Sellers' sole cost and
expense to take possession of and remove such documents.
Section 5.8. Retention of Employees. Purchaser acknowledges that it is
Purchaser's intent to hire substantially all of United's employees, other than
the Shareholders, immediately following the Closing Date; provided, however,
that the status of such employees shall be "employees-at-will," and nothing
contained in this Agreement shall operate to bestow any employment or other
rights on any such employees.
Section 5.9. Corporate Name. Sellers shall take such actions as may be
necessary to cause United to change its corporate name within ten (10) days
following the Closing Date, and shall thereafter discontinue all use of the name
"United Expressline" or any substantially similar name. Sellers shall also take
such actions as may be necessary to cause United Specialties, Inc. to modify its
current logo, so as to eliminate any similarity with the logo currently used by
United; provided, however, that nothing contained in this Agreement shall
require United Specialties, Inc. to change or discontinue the use of its
corporate name.
Section 5.10. Race Team Sponsorship. The parties acknowledge that United
has sponsored a certain motor vehicle racing team (the "Team"), and that it is
the intent of WEJ to continue to operate the Team for some period after the
closing date. Purchaser agrees to sponsor the Team from and after the Closing
Date, in accordance with the following:
(a) Purchaser, operating under the name United Expressline, Inc.
shall be denominated as the primary Team sponsor, and the Team
shall be known as the United Expressline Racing Team. The name
United Expressline shall be featured prominently (in type at
least 50% larger than the name of any other sponsor of the Team)
on each vehicle, on the trailers used by the Team, on the
drivers' racing helmets and clothing, and in any printed
materials used or distributed by the Team.
(b) Purchaser shall pay to the Team the sum of Four Thousand One
Hundred Sixty-Six Dollars and Sixty-Seven Cents ($4,166.67) for
each calendar month following the Closing Date, for so long as
Purchaser's sponsorship continues under this Section; provided,
however, that such payment shall be prorated in the case of any
partial calendar month. Such payment shall be made by Purchaser
as of the last day of each such calendar month, in arrears.
(c) Purchaser and WEJ shall enter into a lease providing for the use
by the Team of certain living quarters located on the Real Estate
at a rental rate of One Dollar ($1.00) per year, with Purchaser
to bear the cost of the insurance, taxes, maintenance and
utilities
associated with such residences. The terms of such lease shall be
as more particularly described in Exhibit B of this Agreement,
which terms shall provide for the indemnification of Purchaser,
its officers, directors and employees, from and against any
liability not covered by Purchaser's insurance relating to or
arising out of the construction of the living quarters without
securing the proper permits, and the failure of such living
quarters to meet applicable building or safety codes.
(d) Purchaser's sponsorship of the Team shall continue for a period
of ten (10) years following the Closing Date of this Agreement,
or until WEJ (or a corporation that is majority owned by any or
all of the Shareholders) ceases to own the Team, whichever first
occurs. Upon expiration of such sponsorship, the rights and
obligation of the parties under this Section shall terminate and
be of no further force or effect.
Section 5.11. Coverage of United on Purchaser's Insurance. United may, at
its sole cost and expense, continue coverage as an additional named insured
under such of Purchaser's liability insurance coverages as United may elect by
written notice to Purchaser. In the event United makes such an election, United
shall remit to Purchaser, upon demand, the amount by which the premiums for such
insurance coverage exceed the premium which would have been charged to Purchaser
if United had not elected such coverage. The right of United to continue
coverage under this Section shall continue until the earliest of the following
dates: (a) the date which is the tenth (10th) anniversary of the Closing Date;
(b) the date on which United resumes any active business operations; or (c) the
fifth (5th) day after written notice by Purchaser to United of the non-payment
of any amount due Purchaser under this Section, if such failure has not been
fully cured as of such date.
ARTICLE VI
SELLERS'CONDITIONS TO CLOSING
The obligation of Sellers to proceed with the Closing shall be subject to
the fulfillment at or prior to the Closing Date of the following conditions:
Section 6.1. Representations and Warranties. The representations and
warranties of Purchaser set forth herein shall be true and correct in all
material respects as of the Closing Date.
Section 6.2. Performance and Document Delivery. Purchaser shall have
performed in all material respects, at or prior to the Closing Date, all acts in
accordance with its covenants set forth herein, including, but not limited to,
delivery to Sellers of the following documents:
(a) A certificate of good standing regarding Purchaser certified by
the Secretary of State of Indiana;
(b) A certificate dated as of the Closing Date signed by a duly
authorized
officer of Purchaser, certifying that the representations and
warranties of Purchaser set forth in this Agreement are true and
correct in all material respects as of the Closing Date and that
Purchaser has fulfilled all of the conditions of this Article VI;
(c) Resolutions adopted by the board of directors of Purchaser,
approving the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby, certified by a duly authorized officer of Purchaser;
(d) An incumbency certificate, executed by a duly authorized officer
of Purchaser, certifying the identity of the individuals with
authority to execute this Agreement on behalf of Purchaser; and
(e) Schedule 4.2.
Section 6.3. Opinion of Counsel. Purchaser shall have delivered to Sellers
an opinion of counsel to Purchaser, dated the Closing Date, in a form reasonably
acceptable to counsel for Sellers.
Section 6.4. No Injunction . No action proceeding, investigation or
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain, prohibit or obtain
substantial damages in respect of, or which is related to or arises out of, this
Agreement or the consummation of the transactions contemplated hereby, or which
is related to or arises out of the business or operations of Purchaser, if such
action, proceeding, investigation or legislation, in the reasonable judgment of
Sellers or their counsel, would make it inadvisable to consummate such
transactions.
ARTICLE VII
PURCHASER'S CONDITIONS TO CLOSING
The obligations of Purchaser to proceed with the Closing shall be subject
to the fulfillment at or prior to the Closing Date of the following conditions:
Section 7.1. Due Diligence Review; Delivery of Schedules. Purchaser shall
have completed, and in its sole discretion be satisfied with the results of, its
due diligence review of the operations and financial condition of the Companies.
Sellers shall have delivered to Purchaser the Schedules referenced in Article
III of this Agreement, and such Schedules shall be satisfactory to Purchaser in
its sole discretion.
Section 7.2. Representations and Warranties. The representations and
warranties of Sellers contained in this Agreement, or any document or instrument
delivered to Purchaser hereunder, shall be true and correct in all material
respects as of the Closing Date.
Section 7.3. Performance and Document Delivery, Generally Sellers shall
have performed in all material respects, at or prior to the Closing Date, all
acts in accordance with their covenants herein, including, but not limited to,
delivery to Purchaser of the following documents:
(a) Good standing certificates regarding each of the Companies,
certified by the Secretary of State of Indiana;
(b) A certificate dated as of the Closing Date signed by Shareholders
and a duly authorized officer of the Companies, certifying that
the representations and warranties of Sellers set forth in this
Agreement are true and correct in all material respects as of the
Closing Date and that Sellers have fulfilled all of the
conditions of this Article VII;
(c) Resolutions adopted by the boards of directors of the Companies
approving the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby, certified by a duly authorized officer;
(d) An incumbency certificate, executed by a duly authorized officer
of the Companies, certifying the identity of the individuals with
authority to execute this Agreement on behalf of the Companies;
(e) All books and records of the Companies described in Section
1.5(d), and such other documents as shall be reasonably requested
by Purchaser (but excluding those books and records that are
Excluded Assets); and
(f) Any documents of title necessary for the lawful transfer of any
of the Assets.
Section7.4. Performance and Document Delivery with Respect to Real Estate.
Sellers shall, at their sole expense, deliver to Purchaser the following:
(a) A duly executed Corporate Warranty Deed for each parcel of the
Real Estate;
(b) Owner's policies of title insurance (the "Title Insurance
Policies") for the Real Estate from a title insurance company
reasonably acceptable to Purchaser (the "Title Company"),
insuring good and marketable title to the Real Estate in
Purchaser as of the Closing Date, which Title Insurance Policies
shall be in a form acceptable to Purchaser, and free of all
standard policy exceptions other than exceptions for survey
matters. If any defect cannot be removed prior to Closing,
Purchaser may, at its sole option, terminate this Agreement or
agree with Sellers upon a reduction in the Real Estate Purchase
Price based upon the diminution in the reduced value to Purchaser
caused by the defect. The Title Insurance Policies, in addition,
shall not be subject to any taxes or assessments other than
current, non-delinquent real estate taxes and assessments. The
Title Insurance Policies shall insure current zoning of the Real
Estate in zoning endorsements,
specifically stating that the current uses of the Real Estate are
permitted uses under the applicable zoning classifications, shall
insure access to publicly dedicated, constructed, and open
rights-of-way, and shall insure the contiguity of any separate
parcels comprising the Owned Premises. The Title Insurance
Policies shall be in amounts acceptable to Purchaser and its
Lenders;
(c) Duly authorized Vendor's Affidavits acceptable to Purchaser and
the Title Company;
(d) If applicable, Disclosure of Sales Information Forms acceptable
to Purchaser and the Title Company,
(e ) A certificate of an officer of J.J.M. that no disclosure is
required pursuant to the Indiana Responsible Property Transfer
Law (or any comparable statute of any other state), or delivery
of the disclosure document, if required;
(f) Any other documentation that may be reasonably required by the
Title Company in order to insure Purchaser with good and
marketable title to the Real Estate.
Section 7.5. No Adverse Change. There shall not have been any change
between the Financial Statement Date and the Closing Date which has had or will
have a Material Adverse Effect on the business, operations, financial condition,
assets or prospects of the Companies, and a certificate shall have been
delivered to Purchaser to such effect signed by Sellers.
Section 7.6. Opinion of Counsel. Purchaser shall have been furnished with
an opinion of counsel to Sellers, dated the Closing Date, in a form reasonably
satisfactory to counsel for Purchaser, and to the Lenders. Such opinion shall
also be addressed to the Lenders.
Section 7.7. Consents and Approvals. Sellers shall have obtained all
necessary consents and approvals, in form and substance satisfactory to
Purchaser, required under all leases and other material contracts pertaining to
the assets or the business of the Companies and satisfying any approval or
permit or licensing requirements for consummation of this transaction and
necessary to carry on the business of the Companies as it is currently being
conducted.
Section 7.8. No Injunction. No action, proceeding, investigation or
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain, prohibit or obtain
substantial damages in respect of, or which is related to or arises out of, this
Agreement or the consummation of the transactions contemplated hereby, or which
is related to or arises out of the business or operations of the Companies, if
such action, proceeding, investigation or legislation, in the reasonable
judgment of Purchaser or its counsel, would make it inadvisable to consummate
such transactions.
Section 7.9. Financing. Purchaser shall have secured financing in such
amounts and upon such terms as Purchaser reasonably determines, and the Lenders
shall have released to Purchaser the proceeds of such financing.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Indemnification of Purchaser. Sellers jointly and severally
agree to indemnify and hold harmless Purchaser (and each shareholder, officer,
director, employee or agent of Purchaser), and their respective estates,
successors, and assigns (each a "Purchaser Indemnified Party"), from and against
any and all claims, losses, damages, liabilities and expenses (including,
without limitation, settlement costs and any legal or other expenses for
investigating or defending any actions or threatened actions) (the "Losses")
reasonably incurred by such Purchaser Indemnified Party as a result of:
(a) the untruth, inaccuracy or breach of any representation or
warranty made by the Sellers in the Agreement;
(b) the nonfulfillment or breach of any covenant, agreement or
obligation of Sellers contained in the Agreement;
(c) any and all amounts of federal, state, and/or local income,
franchise, property, and/or sales and use taxes that may be
assessed against Purchaser with respect to any taxable period
ending on or before the Closing Date for which adequate
provisions therefor has not been made through the Closing Date,
as reflected on the Companies' books of account and in the
Companies' Financial Statements as of the Closing Date; and the
amount of any interest and/or penalties that may be assessed with
respect to said tax assessments; or
(d) any claim demand, action, damages, costs, expenses or other
liabilities of any kind relating to or arising out of any goods
manufactured or services provided by any of the Companies on or
before the Closing Date, including, but not limited to, any claim
alleging negligence, strict liability or breach of contract.
Any other provision of this Article notwithstanding, Sellers' indemnity
obligations to the Purchaser Indemnified Parties shall be subject to the
following limitations: (1) Sellers shall not be obligated to indemnify any
Purchaser Indemnified Party unless and until the total of all Losses incurred by
the Purchaser Indemnified Parties exceeds the sum of Two Hundred Thousand
Dollars ($200,000.00), and then only for the amount in excess of Two Hundred
Thousand Dollars ($200,000.00), and (2) Sellers shall have no obligation to
indemnify any Purchaser Indemnified Party for Losses sustained by the Purchaser
Indemnified Parties for such portion of the aggregate amount of all Losses
sustained by all Purchaser Indemnified Parties, collectively, as exceeds the sum
of One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00). No indemnity
shall be required with respect to any claim of breach or alleged breach of any
warranty or representation
presented after such representation or warranty has expired pursuant to the
terms of Section 3.28, except for claims of fraud to the extent provided in
Section 3.28.
Section 8.2. Indemnification of Sellers. Purchaser shall indemnify and hold
harmless Sellers (and each shareholder, officer, director, employee or agent of
the Companies), and their respective estates, successors, and assigns (each a
"Seller Indemnified Party") from and against any and all Losses reasonably
incurred by such Seller Indemnified Party as a result of:
(a) the untruth, inaccuracy or breach of any representation or
warranty made by the Purchaser in the Agreement;
(b) the nonfulfillment or breach of any covenant, agreement or
obligation of Purchaser contained in the Agreement; and
(c) any debts or other liabilities owed to any person or firm with
respect to goods or services ordered or purchased by Purchaser
after the Closing Date.
Any other provision of this Article notwithstanding, Purchaser's indemnity
obligations to the Seller Indemnified Parties shall be subject to the following:
(1) Purchaser shall not be obligated to indemnify any Seller Indemnified Party
unless and until the total of all Losses incurred by the Seller Indemnified
Parties exceeds the sum of Two Hundred Thousand Dollars ($200,000.00), and then
only for the amount in excess of Two Hundred Thousand Dollars ($200,000.00), (2)
Purchaser shall have no obligation to indemnify any Seller Indemnified Party for
Losses sustained by the Seller Indemnified Parties for such portion of the
aggregate amount of all Losses sustained by all Seller Indemnified Parties,
collectively, as exceeds the sum of One Million Two Hundred Fifty Thousand
Dollars ($1,250,000.00); and (3) paragraphs (1) and (2) of this sentence shall
not apply with respect to Purchaser's failure or refusal to pay all or any
portion of the Asset Purchase Price or the Real Estate Purchase Price,
including, but not limited to, any amount due under the Note. No indemnity shall
be required with respect to any claim of breach or alleged breach of any
warranty or representation presented after such representation or warranty has
expired pursuant to the terms of Section 4.9, except for claims of fraud to the
extent provided in Section 4.9.
Section 8.3. Notification. Whenever any claim shall arise for
indemnification hereunder, the Indemnified Party shall notify the indemnifying
party promptly after such Indemnified Party has actual knowledge of the facts
constituting the basis for such claim, except that, in the event of any claim
for indemnification hereunder resulting from or in connection with any claim or
legal proceedings by a third party, such Indemnified Party shall give prompt
notice to the indemnifying party of such claim or the commencement of legal
proceedings in respect of which recovery may be sought against the indemnifying
party pursuant to the provisions of this Article. The notice to the indemnifying
party shall specify, if known, the amount or an estimate of the amount of the
liability arising therefrom. The Indemnified Party shall not settle or
compromise any such claim without the prior written consent of the indemnifying
party unless suit shall have been instituted
against the Indemnified Party and the indemnifying party shall have failed,
within fifteen (15) days after notice of institution of the suit, to take
control of such suit as provided in Section 8.4.
Section 8.4. Defense of Actions. In connection with any claim giving rise
to indemnity hereunder resulting from or arising out of any claim or legal
proceeding by a person who is not a party to this Agreement, the indemnifying
party, at its sole cost and expense, may, upon written notice to the Indemnified
Party, assume the defense of such claim or legal proceeding, to the extent that
the indemnifying party admits in writing its liability to the Indemnified Party
with respect to all material elements thereof. If the indemnifying party assumes
the defense of any such claim or legal proceeding, the obligations of the
indemnifying party hereunder as to such claim or legal proceeding shall be
limited to taking all steps necessary in the defense or settlement thereof and
to holding the Indemnified Party harmless from and against any losses, damages,
expenses, or liability caused by or arising out of any settlement approved by
the indemnifying party or any judgment in connection with such claim or legal
proceeding Each Indemnified Party agrees that it will cooperate with the
indemnifying party in the defense of any such action, the defense of which is
assumed by the indemnifying party. Except with the consent of the Indemnified
Party, the indemnifying party shall not consent to the entry of any judgment
arising from any such claim or legal proceeding which, in each case, does not
include as an unconditional term thereof the delivering by the claimant or the
plaintiff to the Indemnified Party of a release from all liability in respect
thereof, unless the indemnifying party has actually paid to the Indemnified
Party the full amount of such judgment or settlement. If the indemnifying party
does not assume the defense of any claim or litigation, any Indemnified Party
may defend against such claim or litigation in such manner as it may deem
appropriate, including, but not limited to, settling such claim or litigation,
after giving notice of the same to the indemnifying party, on such terms as the
indemnified Party may deem appropriate. The indemnifying party will promptly
reimburse the Indemnified Party in accordance with the provisions hereof.
Section 8.5. Payment. All indemnification under this Article shall be
effected by payment of cash or delivery of a certified or official bank check in
the amount of the indemnification liability, or by set-off against any amounts
otherwise owed by Purchaser to Sellers or by Sellers to Purchaser, as the case
may be.
ARTICLE IX
ADDITIONAL PROVISIONS
Section 9.1. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be personally delivered,
mailed by first-class registered or certified mail, postage prepaid, return
receipt requested or delivered by an overnight courier service, delivery charge
prepaid:
(a) If to Purchaser, to:
Xxxxxxx X. Xxxxxx
Obsidian Capital Partners, LLC
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxx X. Xxxxxx
Xxxxx Xxxxxxx & Xxxxxx
Box 82035
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
(a) If to Sellers, to:
Xxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx
00000 Xxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxxx
00000 Xxxxxx Xxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxxx
00000 Xxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx & Pianowski, LLP
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
or at such other addresses as maybe furnished to the parties by written notice
given as provided in this Section.
Section 9.2. Severability Should any one or more of the provisions of this
Agreement or any agreement entered into pursuant hereto be determined to be
illegal or unenforceable, all other provisions of this Agreement and such other
agreements shall be given effect separately from the provision or provisions
determined to be illegal or unenforceable and shall not be affected thereby.
Section 9.3. Governing Law: Venue. This Agreement shall be construed and
enforced in accordance with the laws of the State of Indiana, without regard to
its conflicts of law principles. The parties agree that venue for any action or
proceeding
brought by any party relating to or arising out of this Agreement or the Note
shall lie exclusively with the circuit or superior courts of Elkhart County,
Indiana, or the U. S. District Court for the Northern District of Indiana, and
each party expressly consents to such venue and waives its right to maintain any
such action or proceeding in any other forum.
Section 9.4. Further Assurances. Each party covenants that at any time, and
from time to time, after the Closing, it will execute such additional
instruments and take such actions as may be reasonably requested by the other
parties to confirm or perfect or otherwise to carry out the intent and purposes
of this Agreement.
Section 9.5 Modifications; Waiver. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated, except in writing
signed by the parties hereto. No waiver of any provision of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver.
Section 9.6 Assignment. Purchaser may assign its rights under this
Agreement to any affiliated entity, and may collaterally assign to its Lenders
its rights with respect to the representations, warranties, covenants and
indemnities made or granted to Purchaser under this Agreement. Except as
provided in the preceding provisions of this Section, this Agreement shall not
otherwise be assignable by any of the parties hereto without the written consent
of all other parties.
Section 9.7 Binding Effect. All of the terms of this Agreement, whether so
expressed or not, shall be binding upon the respective personal representatives,
successors-and assigns of the parties hereto and shall inure to the benefit of
and be enforceable by the respective personal representatives, successors and
assigns of the parties hereto.
Section 9.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 9.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 9.10 Survival of Representations and Warranties. The
representations and warranties of the parties contained in the Agreement shall
survive the Closing and shall not be extinguished thereby notwithstanding any
investigation or other examination by any party.
Section9.11 Construction of Terms. The language used in the Agreement shall
be construed, in all cases, according to its fair meaning, and not for or
against either party hereto. The parties acknowledge that each party has
reviewed this Agreement and that normal rules of construction to the effect that
any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement. Whenever the masculine gender is used herein, it shall be deemed to
include the feminine and the neuter.
Section 9.12. Entire Agreement. THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ
THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. The parties
further acknowledge that this Agreement and the other documents delivered
pursuant hereto constitute the entire agreement and understanding between
Sellers and Purchaser, superseding and canceling all prior agreements and
understandings relating to the subject matter hereof, whether written or oral.
Each party has had adequate opportunity to consult with legal, financial, tax
and other advisors prior to its execution of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
dates set forth opposite their respective signatures.
"SHAREHOLDERS"
/s/ Xxxxxx X. Xxxxxxx 6/5/01
Xxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
(Date) Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx 6/5/01
Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
(Date) Xxxxxx X. Xxxxxxx
(Date)
"COMPANIES"
United Expressline, Inc. J.J.M., Incorporated
By: /s/ Xxxxxx X. Xxxxxxx 6/5/01 By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Chairman (Date) Xxxxxx X. Xxxxxxx, Chairman
(Date)
"PURCHASER"
United Acquisition, Inc.
By:_________________________
Its: Chairman
Date: June 6, 2001
