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EXHIBIT 2.2
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ASSET PURCHASE AGREEMENT
Between
CENTRAL FREIGHT LINES, INC.
and
VIKING FREIGHT, INC.
Dated as of May 13, 1997
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TABLE OF CONTENTS
Page
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1. Definitions........................................................ 2
2. Sale and Purchase of Assets........................................ 2
2.1 Assets to be Sold............................................. 2
2.1.1 Owned Real Property.................................... 2
2.1.2 Leased Real Property................................... 3
2.1.3 Owned Revenue Equipment and Certain
Non-Revenue Equipment.............................. 4
2.1.4 Inventory.............................................. 5
2.1.5 Owned Tangible Personal Property....................... 5
2.1.6 Leased Tangible Personal Property...................... 5
2.1.7 Assumed Contracts...................................... 5
2.1.8 Licenses, Permits and Approvals........................ 6
2.1.9 Records................................................ 7
2.1.10 Rights to the Central Name............................. 7
2.1.11 Environmental Refunds.................................. 7
2.2 Excluded Assets............................................... 8
2.2.1 Cash................................................... 8
2.2.2 Accounts Receivable..................................... 8
2.2.3 Assets of Other Division............................... 8
2.2.4 Insurance Policies..................................... 8
2.2.5 Excluded Corporate Records............................. 8
2.2.6 Tax Claims............................................. 9
2.2.7 Excluded Contracts..................................... 9
2.2.8 Other Assets........................................... 9
2.3 Nonassigned Interests and Rights.............................. 9
3. Assumption of Liabilities.......................................... 10
3.1 Assumed Liabilities........................................... 10
3.1.1 Contract Liabilities................................... 10
3.1.2 Industrial Revenue Bonds............................... 10
3.1.3 Retiree Medical Obligations............................ 10
3.1.4 Assumed Environmental Liabilities...................... 11
3.1.5 Accrued Vacation....................................... 12
3.1.6 Other Liabilities...................................... 12
3.2 Excluded Liabilities.......................................... 12
3.3 Indemnification............................................... 12
4. Closing; Consideration............................................. 13
4.1 Place and Time of Closing..................................... 13
4.2 Consideration................................................. 14
4.3 Allocation of Consideration................................... 16
4.4 Post Closing Inventory Adjustment............................. 16
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5. Representations and Warranties of Seller............................... 18
5.1 Organization, Power and Authority................................. 18
5.2 [INTENTIONALLY LEFT BLANK]........................................ 18
5.3 Authorization and Effect of Agreement............................. 18
5.4 No Breach......................................................... 19
5.5 Approval of Transactions.......................................... 19
5.6 Orders and Actions................................................ 19
5.7 Compliance with Laws.............................................. 20
5.8 Title to Real Property............................................ 20
5.9 Title to Personal Property........................................ 20
5.10 Personal Property Leases and Assumed Contracts.................... 21
5.11 Permits........................................................... 21
5.12 Environmental Matters............................................. 21
5.13 Disclaimer........................................................ 22
5.14 Brokerage......................................................... 23
6. Representations and Warranties of Buyer................................ 23
6.1 Organization, Power and Authority................................. 23
6.2 Legal and Authorized Transactions................................. 23
6.3 No Breach......................................................... 24
6.4 Consents and Approvals............................................ 24
6.5 Orders and Actions................................................ 25
6.6 No Reliance....................................................... 25
6.7 Brokerage......................................................... 25
6.8 Seller's Representations and Warranties........................... 26
7. Employees; Employee Pension and Welfare Plans.......................... 26
7.1 Employment; Medical Benefits...................................... 26
7.2 Employee Pension Plans and Benefits............................... 26
7.3 Employee Welfare Plans, Worker's Compensation..................... 29
7.4 WARN and Severance Pay............................................ 30
8. Pre-Closing Covenants and Agreements................................... 31
8.1 Reasonable Access................................................. 31
8.2 HSR Act........................................................... 32
8.3 Transition Services Agreement..................................... 32
8.4 Guaranties........................................................ 33
9. Conditions to Obligations of Buyer and Seller.......................... 33
9.1 Conditions to Obligations of Buyer................................ 33
9.1.1 Accuracy of Representations and Warranties................. 33
9.1.2 Performance of Covenants and Agreements.................... 34
9.1.3 Receipt of Documents....................................... 34
9.1.4 No Actions................................................. 35
9.1.5 HSR Act.................................................... 36
9.2 Conditions to Obligations of Seller............................... 36
9.2.1 Accuracy of Representations and Warranties................. 36
9.2.2 Performance of Covenants and Agreements.................... 36
9.2.3 Receipt of Documents....................................... 36
9.2.4 No Actions................................................. 37
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9.2.5 HSR Act; Governmental Action.................................... 38
10. Other Covenants and Agreements......................................... 38
10.1 Access to Financial books and Records
and Tax Returns................................................ 38
10.2 Delivery of Property after Closing;
Accounts Receivable............................................ 42
10.3 Cooperation...................................................... 43
10.4 Freight Claims................................................... 43
10.5 Confidentiality.................................................. 43
11. Termination............................................................ 43
11.1 Termination...................................................... 43
11.2 Effects of Termination........................................... 46
12. Miscellaneous.......................................................... 46
12.1 Survival of Representations and Warranties
and Covenants................................................. 46
12.2 Assignment; Successors and Assigns............................... 46
12.3 Notices.......................................................... 47
12.4 Waiver; Remedies................................................. 48
12.5 No Recourse Against Others....................................... 48
12.6 Amendment........................................................ 48
12.7 Further Assurances............................................... 48
12.8 Counterparts..................................................... 49
12.9 Governing Law; Jurisdiction; Language.............................49
12.10 Bulk Sales Laws.................................................. 50
12.11 Schedules........................................................ 50
12.12 Passage of Title and Risk of Loss................................ 50
12.13 Apportionment of Taxes, Charges and Payments..................... 50
12.14 Transfer Taxes................................................... 51
12.15 Expenses of Sale................................................. 52
12.16 Communications................................................... 52
12.17 Freight in Transit............................................... 53
12.18 Captions......................................................... 53
12.19 Rights of Third Parties.......................................... 53
APPENDICES
Appendix A - Defined Terms
SCHEDULES
Schedule 2.1.1 - Owned Real Property
Schedule 2.1.2 - Leased Real Property
Schedule 2.1.3(i) - Owned Revenue Equipment
Schedule 2.1.3(iii) - Owned Revenue Equipment
Schedule 2.1.3(iv) - Owned Revenue Equipment
Schedule 2.1.3(v) - Non-Revenue Equipment
Schedule 2.1.3(vi) - Out of Service Revenue Equipment
Schedule 2.1.5 - Description of the Equipment not Owned by Seller
Schedule 2.1.6 - Leased Tangible Property
Schedule 2.1.7 - Assumed Contracts
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Schedule 2.1.7(ii) - Leased Managers Schedule 2.2.8 - Excluded Equipment
Schedule 3.1.2 - Industrial Revenue Bonds
Schedule 3.1.3 - Retiree Medical Obligations
Schedule 4.2(b) - Escrow Agreement
Schedule 5.5 - Required Governmental Consents
Schedule 5.6 - Orders and Actions
Schedule 5.8(a) - Real Property Permitted Liens
Schedule 5.9 - Personal Property Permitted Liens
Schedule 5.12 - Environmental Matters
Schedule 6.4 - Required Governmental Consents
Schedule 7.1 - Other Employees
Schedule 7.4.2 - Severance Plans
Schedule 8.3 - Transition Services Agreement
Schedule 8.4 - Guaranty
Schedule 9.1.3(e) - Viking License Agreement
Schedule 9.1.3(g) - Central License Agreement
Schedule 9.1.5 - Consents
Schedule 10.5 - Confidentiality
Schedule 12.14 - Type of Property Subject to Sales Tax
Schedule 12.16 - Communication Policy
Schedule 12.17(a) - Freight in Transit
Schedule 12.17(b) - Actions by Buyer with Respect to Freight in
Transit
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of May 13,
1997 between Central Freight Lines, Inc., a newly formed Texas corporation
("Buyer") and Viking Freight, Inc., a California corporation ("Seller").
RECITALS
A. Seller, a wholly-owned subsidiary of Caliber System, Inc., an Ohio
corporation ("Caliber"), has operated a division referred to as the "Viking
Southwestern Division" that engages in less-than-truckload freight service to
customers primarily in the states of Texas, Arkansas, Kansas, Louisiana,
Mississippi, Missouri, New Mexico and Oklahoma (formerly the business of
Seller's former subsidiary, Central Freight Lines Inc.) (such division to be
referred to herein as the "Business"); and
B. Seller desires to sell and transfer to Buyer, and Buyer desires to
purchase and assume from Seller, certain of Seller's assets, liabilities and
obligations related to the Business upon the terms and subject to the conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and undertakings set forth in this
Agreement, and subject to the terms and conditions set forth in this Agreement,
the parties hereto hereby agree as follows:
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1. Definitions. As used in this Agreement, all capitalized terms shall
have the meanings set forth in Appendix A, unless the context otherwise
requires.
2. Sale and Purchase of Assets.
2.1 Assets to be Sold. Upon the terms and subject to the conditions
of this Agreement, Seller shall sell, transfer, assign, convey and deliver, or
cause to be sold, transferred, assigned, conveyed and delivered, to Buyer, and
Buyer shall purchase and acquire from Seller, at the Closing, all of Seller's
right, title and interest in and to the following assets as such assets may
exist on the Closing Date (collectively, the "Acquired Assets"): 2.1.1 Owned
Real Property. The real property owned by Seller and listed on Schedule 2.1.1 to
this Agreement, together with (i) all buildings, fixtures, structures, parking
areas, landscaping, facilities and other improvements currently constructed and
located thereon, if any, as well as any additions or replacements of same
occurring prior to the Closing and (ii) all transferable licenses, rights,
privileges, easements and appurtenances pertaining to (i) above (the "Owned Real
Property").
2.1.2 Leased Real Property. Subject to Section 2.3, all rights and
incidents of interest of Seller in and to the real property leased by Seller
(the "Leased Real Property") pursuant to the leases set forth on Schedule 2.1.2
(the "Real Property Leases").
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2.1.3 Owned Revenue Equipment and Certain Non-Revenue Equipment.
The following revenue equipment and non-revenue equipment or their reasonable
equivalent owned by Seller and used exclusively in the Business:
(i) 1,296 tractors (including 483 linehaul tractors) from
the tractors listed on Schedule 2.1.3(i) which may
contain more than 1,296 tractors; provided, however,
Seller shall sell to Buyer 483 linehaul tractors
whether or not such linehaul tractors are listed on
Schedule 2.1.3(i) and provided further Seller's
obligation under this Section 2.1.3(i) is only to
deliver (A) 1,296 tractors (which shall included 483
linehaul tractors) plus (B) such other tractors listed
on Schedule 2.1.3 as are located by Seller or Buyer in
accordance with Section 2.1.3(ii) notwithstanding that
Schedule 2.1.3 may contain tractors in excess of 813
non-linehaul tractors ("Excess Tractors").
(ii) If the Excess Tractors are used by the Business as of
the date hereof and can be located at Closing by Seller
or Buyer, Seller will deliver such Excess Tractors to
Buyer so as to bring the total owned tractors
(including the tractors to be delivered pursuant to
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Section 2.1.3(i)) to a maximum of 1,446. In attempting
to locate the Excess Tractors, Seller will cooperate
with Buyer and use reasonable, good faith efforts to
locate the Excess Tractors, but if any Excess Tractors
cannot be located by Seller in its possession, Seller
shall have no obligation to Buyer with respect to such
Excess Tractors. Notwithstanding anything contained
elsewhere in this Agreement, Seller shall have no risk
of loss with respect to the Excess Tractors;
(iii) 4,892 trailers listed on Schedule 2.1.3(iii);
(iv) 773 units of other revenue equipment listed on Schedule
2.1.3(iv);
(v) 640 units of non-revenue equipment (including cars)
listed on Schedule 2.1.3(v); and
(vi) 65 out of service units of revenue equipment listed on
Schedule 2.1.3(vi).
2.1.4 Inventory. Inventories of parts, tires and supplies and fuel
and oil inventories located on the Real Property (together "Inventory") on the
Closing Date.
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2.1.5 Owned Tangible Personal Property. The tangible personal
property owned by Seller (other than of the nature described in Sections 2.1.1,
2.1.3, 2.1.4 and 2.2.8) located on the Real Property and used exclusively in the
Business on the date hereof with such changes as may occur in the ordinary
course of the Business between the date hereof and the Closing Date (the "Owned
Personal Property"). Schedule 2.1.5 contains a description of certain of the
equipment not owned or leased by Seller which may be located on the Real
Property and is not being sold or transferred to Buyer.
2.1.6 Leased Tangible Personal Property. Subject to Section 2.3, all
rights and incidents of interest of Seller in and to the leases relating to
tangible personal property (including, but not limited to, 143 leased tractors)
leased by Seller and used exclusively in the Business (the "Leased Personal
Property"), including without limitation those leases listed on Schedule 2.1.6
as such exist by their terms on the Closing Date and any leases of personal
property used exclusively in the Business entered into by Seller between the
date hereof and Closing (the "Personal Property Leases" and, together with the
Real Property Leases, the "Leases").
2.1.7 Assumed Contracts. Subject to Section 2.3, all rights and
incidents of interest of, and benefits accruing to, Seller in and to all
contracts, leases, agreements, licenses, sales and purchase orders, and other
agreements and commitments other than the Leases (collectively, the "Contracts")
to which Seller is a party that relate exclusively to the Business consisting of
the Contracts listed on Schedule 2.1.7 in existence
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on the Closing Date and any other Contracts related exclusively to the Business
consisting of:
(i) any contract entered into in the ordinary course of Business
between the date hereof and the Closing Date;
(ii) any contract entered into by an employee of the Business
that reported directly or indirectly to any person listed on
Schedule 2.1.7(ii) ("Listed Managers");
(iii) any contract terminable on thirty days or less notice; or
(iv) any contract entered into in the ordinary course of the
Business with remaining obligation of Seller of $10,000 or
less or where the bargained for consideration from the other
party to the contract will accrue to Buyer.
Together with the Leases all contracts described in this Section 2.1.7 shall be
collectively referred to as the "Assumed Contracts".
2.1.8 Licenses, Permits and Approvals. Subject to Section 2.3, all
transferable licenses, permits, vehicle registrations with respect to vehicles
constituting part of the Acquired Assets, authorizations, approvals,
qualifications or similar documents or authority that are issued or granted by
any Governmental Body to Seller and related exclusively to the Business to the
extent still in effect and transferable on the Closing Date (collectively, the
"Permits"). Seller shall have no
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obligations to Buyer with respect to any Permits that are not transferable to
Buyer. Buyer shall be entitled to any refunds available to it or Seller with
respect to nontransferable vehicle registrations with respect to registrations
of vehicles constituting part of the Acquired Assets.
2.1.9 Records. Except as otherwise provided in Section 2.2.5 and
subject to Section 10.1 which shall govern Seller's obligations with respect to
Business Financial Books and Records, all documents, records, files, phone and
fax numbers and reports of Seller on the Closing Date that relate exclusively to
the Business or the Acquired Assets; provided, however, that Seller shall have
the right to retain copies of such documents and records.
2.1.10 Rights to the Central Name. All of Seller's right, title and
interest to (i) the name "Central Freight Lines Inc." and any name which uses
the words Central Freight and (ii) the service marks "Central Freight Lines Inc.
- Delivering Results" and "Central Freight Lines Inc. - Loaded with Pride."
2.1.11 Environmental Refunds. All refunds and claims related thereto
from the Texas Natural Resource Conservation Commission with respect to
environmental expenditures paid by Seller relating exclusively to the Owned Real
Property and the Leased Real Property transferred to Buyer pursuant to Sections
2.1.1 and 2.1.2, relating to contamination from underground storage tanks.
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2.2 Excluded Assets. Notwithstanding anything to the contrary
contained in this Agreement, Seller shall retain and not transfer, and Buyer
shall not purchase or acquire, any assets (the "Excluded Assets") of Seller that
are not Acquired Assets, including but not limited to the following:
2.2.1 Cash. All of Seller's cash on hand or on deposit in banks,
checks in transit, certificates of deposits, time deposits and securities.
2.2.2 Accounts Receivable. All of Seller's accounts receivable as of
the Closing Date arising out of the conduct of the Business and all revenues
from accounts receivable generated from shipments in transit of the Business on
the Closing Date.
2.2.3 Assets of Other Divisions. All rights, properties and assets
of Seller related to or used in Seller's other divisions.
2.2.4 Insurance Policies. All of Seller's rights to any insurance
and under any insurance policies related to or used in the Business.
2.2.5 Excluded Corporate Records. The corporate minute books and
related corporate records, stock books and ledgers, corporate seals and tax
records and returns of Seller, personnel records and all records relating to the
Excluded Assets.
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2.2.6 Tax Claims. All claims of Seller for refunds or credits with
respect to any Federal, state, municipal, local or real estate taxes of any kind
("Taxes").
2.2.7 Excluded Contracts. All contracts of Seller that do not relate
exclusively to the Business.
2.2.8 Other Assets. Other assets of Seller described on Schedule
2.2.8.
2.3 Nonassigned Interests and Rights.
(a) Notwithstanding any provision to the contrary, to the extent
that any Contract or Permit included in the Acquired Assets ("Nonassigned
Assets") is not capable of being validly assigned, transferred, conveyed,
subleased or reissued to Buyer ("Assignment") without the consent, approval,
authorization, waiver or notification (individually, a "Consent") of a
Governmental Body or other Person, or that any such Assignment or attempted
Assignment without such Consent would constitute a breach of such Contract or
Permit or a violation of any Law, this Agreement shall not constitute an
Assignment thereof, and Seller shall not be obligated to make an Assignment
thereof without first having obtained all Consents; provided, however, this
Section 2.3(a) shall not apply to the Industrial Revenue Bonds which shall be
assigned notwithstanding that prior consents, approvals, authorizations and
modifications to assignments have not been received as of the Closing Date.
(b) Promptly after the date of this Agreement and for a period of
six months following Closing, Seller shall use reasonable efforts, and Buyer
shall cooperate with Seller, to obtain all Consents that are necessary for the
valid Assignment
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of all Nonassigned Assets. Seller's reasonable effort shall not include (i) the
payment of any fees related to an Assignment or (ii) the guarantee by Seller of
any performance of Buyer under any Contract or Permit included in the Acquired
Assets.
3. Assumption of Liabilities
3.1 Assumed Liabilities. Upon the terms and subject to the
conditions of this Agreement, Buyer shall assume on the Closing Date effective
as of the Effective Date and thereafter shall promptly pay, perform and fully
satisfy when due, all of the following liabilities and obligations (which
together with the obligations of Buyer pursuant to Sections 7, 12.13, 12.14 and
12.15 constitute the "Assumed Liabilities"):
3.1.1 Contract Liabilities. All liabilities and obligations of
Seller from and after the Effective Date arising under the Assumed Contracts,
the Leases and the Permits.
3.1.2 Industrial Revenue Bonds. All liabilities and obligations of
Seller arising from and after the Effective Date under the industrial revenue
bonds relating to the Business and listed on Schedule 3.1.2 (the "Industrial
Revenue Bonds") whether or not any necessary consents, approvals, authorizations
and modifications of such Industrial Revenue Bonds have been obtained prior to
Closing.
3.1.3 Retiree Medical Obligations. All liabilities and obligations
of Seller and Caliber from and after the Effective Date under Seller's and
Caliber's plans and policies and benefits identified or listed on Schedule 3.1.3
providing post-employment medical, dental, vision, prescription drugs and
similar benefits to those present and former employees
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of Seller related to the Business and the former employees of the predecessors
of the Business as of the Effective Date. Buyer shall become the plan sponsor of
the Central Freight Lines Inc. Employees Security Plan listed on Schedule 3.1.3
and Seller and Caliber shall withdraw as plan sponsor effective the Effective
Date. Seller and Caliber shall amend the Caliber System, Inc. Medical, Dental
and Vision Care Plan to cease eligibility for Employees of the Business after
the Effective Date. Nothing herein shall preclude Buyer's right to so amend,
modify or terminate the Central Freight Lines Inc. Employee Security Plan;
provided, however, Buyer shall indemnify and hold Seller and Caliber harmless
against all liabilities and obligations of Seller and Caliber resulting from any
such amendment, modification or termination.
3.1.4 Assumed Environmental Liabilities. All liabilities and
obligations of Seller resulting from the generation, storage, transportation,
treatment, recycling, reuse, reclamation, release or threatened release,
disposal or use or handling in any way of any substances, pollutant, contaminant
or waste classified as hazardous or toxic under any Environmental Laws as such
Environmental Laws may exist at any time or any other applicable Laws or any
other waste materials in connection with the conduct of the Business at or from
the Real Property or the use, operation, ownership or possession of the Acquired
Assets by Seller prior to the Closing Date.
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3.1.5 Accrued Vacation. All liabilities and obligations of
Seller as of the Closing Date to Employees (as defined in Section 7.1) for
vacation pay with respect to past service.
3.1.6 Other Liabilities. (a) Buyer shall assume any obligation
of Seller authorized by an employee of the Business prior to the Closing Date
who reported directly or indirectly to any of the Listed Managers.
(b) Buyer shall assume liability for compliance with all
obligations under the Permits transferred to Buyer.
3.2 Excluded Liabilities. Notwithstanding anything to the contrary
contained in this Agreement, Buyer shall have no responsibility for and shall
not assume or be liable for any liabilities or obligations other than the
Assumed Liabilities (the "Excluded Liabilities").
3.3 Indemnification. (a) From and after the Closing Date, Buyer
shall indemnify Seller and its Affiliates and hold them harmless from and
against and in respect of any and all damages, claims, losses, expenses,
obligations, and liabilities, including, without limitation, reasonable
attorneys' fees (collectively, "Losses"), claimed or assessed against Seller or
its Affiliates as to which any of them may become subject in connection with the
operation of the Business by Buyer after the Effective Date or the Assumed
Liabilities.
(b) From and after the Closing Date, Seller shall indemnify Buyer
and its Affiliates and hold them harmless from and against any and all Losses
claimed or assessed against any of them with respect to the Excluded
Liabilities.
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4. Closing; Consideration.
4.1 Place and Time of Closing.
(a) The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Xxxxx, Day, Xxxxxx & Xxxxx,
North Point, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 at 9:30 a.m. (EDT) on
June 30, 1997. The effective date of the Closing and all transactions,
transfers, assumptions of liability and other actions provided for hereunder
shall be 12:01 a.m., June 29, 1997 ("Effective Date") unless extended or changed
as set forth herein. The Closing may be extended pursuant to Sections 4.1(b),
9.1.4 or 9.2.4, accelerated pursuant to 11.1.4 or may take place at such other
place or at such other time as the parties may agree in writing (June 30, 1997
or such other date and time being referred to in this Agreement as the "Closing
Date"). If the Closing Date is so extended or accelerated to a date other than
June 30, 1997, the date to which the Closing Date is extended or accelerated
also shall be the "Effective Date").
(b) In the event Buyer shall not have completed Phase I as described
in the Transition Services Agreement by June 30, 1997; Buyer will have the
option to extend the Closing Date to July 31, 1997 by written notice received by
Seller by June 22, 1997 of Buyer's exercise of its option accompanied by Buyer's
cashier check or wire transfer payable to Seller in the amount of Four Million
Dollars (U.S.$4,000,000) ("Option Price"); provided, however, payment of the
Option Price shall not be required in the event the failure to complete Phase I
is caused directly by a material breach by Seller of its obligations with
respect to
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Phase I as defined in the Transition Services Agreement. The Option Price shall
not constitute part of the Purchase Price but shall be in addition thereto.
4.2 Consideration.
(a) In consideration of the sale, assignment, transfer, conveyance
and delivery of the Acquired Assets by Seller to Buyer and the other
undertakings of Seller in this Agreement, Buyer shall (a) pay to Seller at the
Closing the amount of Forty-three Million Dollars (U.S.$43,000,000) (the
"Purchase Price"), including the Deposit pursuant to Section 4.2(b)(i)(A), by
wire transfer of immediately available funds to an account designated in writing
by Seller and (b) assume the Assumed Liabilities as of the Closing Date as
provided in Section 3.
(b) Upon execution of this Agreement, Buyer shall pay to Seller a
deposit ("Deposit") in the amount of Five Million Dollars (U.S.$5,000,000) which
shall be deposited in an escrow account pursuant to the terms of the Escrow
Agreement attached hereto as Schedule 4.2(b) as executed this date by Buyer and
Seller.
(i) The Deposit shall be paid in full to Seller by the Escrow Agent:
(A) at Closing and the Deposit and any Escrow Funds Interest (as
defined in the Escrow Agreement) shall constitute partial
payment of the Purchase Price; or
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(B) if the Closing does not occur on the Closing Date
established pursuant to Section 4.1(a), 4.1(b), 9.1.4, 9.2.4
or 11.1.4, whichever Section may be applicable, unless Buyer
shall have exercised by written notice to Seller one of the
conditions to the obligations of Buyer contained in Section
9.1 of the Agreement or Seller shall be in material breach
of its obligations with respect to Phase I under the
Transition Services Agreement.
(ii) A portion of the Deposit shall be paid to Seller by the Escrow
Agent equal to the amount to be paid to Seller pursuant to the
terms of Section 11.1.3 of this Agreement in the event Buyer
delivers to Seller Buyers's MAC Notice pursuant to Section
11.1.3 and the Closing does not occur.
(iii) The Deposit shall be paid in full to Buyer by the Escrow
Agent:
(A) if the Closing does not occur pursuant to the terms of this
Agreement because Buyer shall have exercised by written
notice to Seller one of the conditions to the obligations of
Buyer contained in Section 9.1 of this Agreement or Seller
shall be in material breach of its
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obligations with respect to Phase I under the Transition
Services Agreement.
(B) in the event Seller delivers to Buyer Seller's MAC notice
pursuant to Section 11.1.4 of this Agreement and the Closing
does not occur.
(iv) The portion of the Deposit not payable to the Seller pursuant
to Section 4.2(b)(ii) shall be paid to Buyer pursuant to the
terms of Section 11.1.3 of this Agreement in the event Buyer
delivers to Seller Buyer's MAC Notice pursuant to Section
11.1.3.
4.3 Allocation of Consideration. Seller and Buyer shall allocate
the consideration paid or given by Buyer to Seller among the Acquired Assets in
accordance with the values therefor determined jointly by Seller and Buyer at or
prior to the Closing, and Seller and Buyer shall reflect such allocation in all
returns, reports and documents filed with the Internal Revenue Service or any
other Governmental Body.
4.4 Post Closing Inventory Adjustment.
(a) As of the Closing Date, Buyer, with a representative(s) of
Seller present at Seller's option, will take an inventory, at Buyer's sole
expense, of parts, tires, and miscellaneous supplies and fuel and oil
inventories valued consistently with Seller's past practice ("Closing Date
Inventory"). To the extent the Closing Date Inventory is more than $1,778,000,
Buyer shall pay the difference to Seller; if the Closing Date Inventory is less
than $1,778,000, Seller shall pay
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the Buyer the difference. Payments shall be made by cashier's check within five
(5) business days of receipt of the Final Closing Date Inventory Statement as
defined below.
(b) Within ten (10) days after the Closing Date, Buyer shall
prepare and deliver to Seller a Statement of Closing Date Inventory detailing
the value of items of Inventory by location. If Seller does not deliver written
notice of any objections to the Statement of Closing Date Inventory within ten
(10) days of receipt, the Statement of Closing Date Inventory shall become the
Final Closing Date Inventory Statement. Within ten (10) days following receipt
of the Statement of Closing Date Inventory, Seller shall deliver written notice
to Buyer of any objections thereto, and Buyer and Seller will attempt in good
faith to reach an agreement as to any matters in dispute. If Buyer and Seller,
notwithstanding such good faith effort, fail to resolve any matters in dispute
within five (5) days after Seller advises Buyer of its objections, then any
remaining disputed matters will be finally and conclusively determined by an
independent auditing firm of recognized national standing (the "Arbiter")
selected by Buyer and Seller, which will not be the regular auditing firm of
Buyer or Seller. Promptly, after its acceptance of its appointment, the Arbiter
will determine (based solely on presentations by Seller and Buyer to the Arbiter
and the terms of this Section 4.4 and not by independent review) only those
issues in dispute and will render a report as to the disputes and the resulting
calculation of the Final Closing Date Inventory Statement, which report will be
conclusive and binding upon the parties. In resolving any disputed item, the
Arbiter may not
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assign a value to any particular item greater than the greatest value for such
item claimed by either party or less than the lowest value for such item claimed
by either party, in each case as presented to the Arbiter. All fees and expenses
of the Arbiter will be paid by Buyer.
5. Representations and Warranties of Seller. Seller represents
and warrants to Buyer as follows:
5.1 Organization, Power and Authority. Seller is a corporation
duly organized and validly existing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its business
as now being conducted, except where the failure to have such power or authority
would not, in the aggregate, have a material adverse effect on the value or use
of the Acquired Assets. Seller is qualified or otherwise authorized to transact
business as a foreign corporation in each jurisdiction in which the nature of
its business or location of its properties requires such qualification or
authorization, except in such jurisdictions where the failure to be so qualified
or authorized would not, in the aggregate, have a material adverse effect on the
value or use of the Acquired Assets by Buyer.
5.2 [INTENTIONALLY LEFT BLANK.]
5.3 Authorization and Effect of Agreement. Seller has the
requisite corporate power and authority to execute and deliver this Agreement
and to perform its obligations under this Agreement. The execution and delivery
by Seller of this Agreement and the performance by Seller of its obligations
under this Agreement have been duly authorized by all necessary
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corporate action on the part of Seller. This Agreement has been duly executed
and delivered by Seller and, assuming the due execution and delivery of this
Agreement by Buyer, constitutes a valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms.
5.4 No Breach. Neither the execution and delivery of this
Agreement by Seller, nor the performance of its obligations under this
Agreement, will (i) violate any provision of the Charter Documents of Seller
(ii) violate any Order against, or binding upon, Seller with respect to the
Acquired Assets or (iii) constitute a violation by Seller of any applicable
material Law.
5.5 Approval of Transactions. Except as set forth on Schedule
5.5, to the knowledge of Seller, no consent, approval, authorization, license,
permit or other action by, or filing with, any Governmental Body is required
with respect to the actions of Seller in connection with the execution and
delivery of this Agreement by Seller or the performance by Seller of its
obligations under this Agreement.
5.6 Orders and Actions. Except as set forth on Schedule 5.6,
there are no (i) outstanding Orders against Seller or (ii) Actions pending or,
to the knowledge of Seller, threatened against Seller, which are reasonably
likely to have a material adverse effect on the value or use of the Acquired
Assets, as a whole, or impair the ability of Seller to perform its obligations
under this Agreement.
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5.7 Compliance with Laws. To the knowledge of Seller, Seller is
in material compliance with all applicable Orders and Laws, except for the
Environmental Laws which are the subject of Section 5.12.
5.8 Title to Real Property. (a) Title to the Owned Real Property
is free from any Liens except for (i) Liens for current taxes not yet due and
payable, (ii) any other Liens for which Seller undertakes to remain liable after
the Closing, which Liens shall be treated as Excluded Liabilities, (iii)
mechanics', carriers', workers', construction and other similar Liens arising or
incurred in the ordinary course of business of the Business consistent with past
practice which shall be treated as Excluded Liabilities and (iv) Liens set forth
on Schedule 5.8(a) (the "Real Property Permitted Liens").
(b) The Real Property Leases are valid and binding agreements of
Seller and there are no material defaults by Seller or, to the knowledge of
Seller, the lessor under the Real Property Leases. All rent and other charges
due and payable by Seller under the Real Property Leases have been or will be
paid in full for all periods through and including the Closing Date.
5.9 Title to Personal Property. (a) Seller owns the Owned
Personal Property free from any Liens except for (i) Liens for current taxes not
yet due and payable, (ii) any other Liens for which Seller undertakes to remain
liable after the Closing, which Liens shall be treated as Excluded Liabilities,
(iii) mechanics', carriers', workers', construction and other similar Liens
arising or incurred in the ordinary course of
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business of the Business consistent with past practice which shall be treated as
Excluded Liabilities and (iv) Liens set forth on Schedule 5.9 (the "Personal
Property Permitted Liens" and, together with the Real Property Permitted Liens,
the "Permitted Liens").
5.10 Personal Property Leases and Assumed Contracts. Each of the
Personal Property Leases and Assumed Contracts is a valid and binding agreement
of Seller and there are no material defaults by Seller or, to the knowledge of
Seller, the lessor or other party under any such Personal Property Lease or
Assumed Contract. All rent and other amounts and charges due and payable by
Seller under each of the Personal Property Leases and Assumed Contracts has been
or will be paid for all periods through and including the Closing Date.
5.11 Permits. To the knowledge of Seller, Seller is in
substantial compliance with the terms of all material Permits, except where such
non-compliance would not have a material adverse effect on Buyer's ability to
operate the Business in a manner substantially similar to the operation of the
Business by Seller. This representation excludes the matters covered by Section
5.12.
5.12 Environmental Matters. As of the date of this Agreement,
except as set forth in Schedule 5.12, to the knowledge of Seller, Seller
possesses, and is in substantial compliance with, all material permits, licenses
and government authorizations required for the conduct of its business under
Federal, state and local laws and regulations relating to pollution and the
discharge of materials into the environment
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("Environmental Laws"), and, to the knowledge of Seller, Seller is otherwise in
compliance with all applicable Environmental Laws, except where the failure to
be in compliance would not have a material adverse effect on the value of, or
use of, the Acquired Assets, as a whole. As of the date of this Agreement,
except as set forth in Schedule 5.12, to Seller's knowledge, Seller has not
received any written notices from any Governmental Body that the operations of
the Business violate any applicable Environmental Laws. For the purposes of this
Section 5.12, the term "knowledge of Seller" shall mean the knowledge of Xx.
Xxxxx Xxxx and Xx. Xxxxx Xxxxx, Caliber's Director of Environmental Services.
For purposes of this Section 5.12, Seller shall be deemed to have disclosed all
matters known to the Listed Managers. Buyer agrees that it will have no right to
assert any inaccuracy of this Section 5.12 based on any investigation or studies
by or on behalf of Buyer between the date hereof and the Closing Date except for
those inaccuracies based on written evidence in existence on the date of this
Agreement.
5.13 Disclaimer. THE ACQUIRED ASSETS ARE FURNISHED TO BUYER AS
IS, WHERE IS, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
SELLER DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. Buyer agrees that it will have no right to assert any
inaccuracy of this Section 5.12 based on any investigation or studies by or on
behalf of Buyer between the date hereof and the Closing Date except for those
inaccuracies
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based on written evidence in existence on the date of this Agreement.
5.14 Brokerage. Except for the compensation payable to Xxxxxxx
Sachs & Co. in connection with the transactions contemplated by this Agreement,
which shall be paid by Seller or an Affiliate of Seller, no broker, finder or
similar agent has been employed by or on behalf of Seller.
6. Representations and Warranties of Buyer. Buyer represents
and warrants to Seller as follows:
6.1 Organization, Power and Authority. Buyer is a corporation
duly organized and validly existing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its business
as now being conducted, except where the failure to have such power or authority
would not, in the aggregate, have a material adverse effect on the results of
operations and financial condition of Buyer and Buyer's ability to perform its
obligations under this Agreement. Buyer has the requisite corporate power and
authority to execute and deliver this Agreement and to perform its obligations
under this Agreement. The copies of the Charter Documents of Buyer that have
been delivered to Seller by Buyer are correct and complete copies thereof.
6.2 Legal and Authorized Transactions. The execution and delivery
by Buyer of this Agreement and the performance of its obligations under this
Agreement have been duly authorized by all necessary corporate action on the
part of Buyer. This Agreement has been duly executed and delivered by Buyer and,
assuming the due execution and delivery of this
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Agreement by Seller, constitutes the valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
6.3 No Breach. Neither the execution and delivery of this
Agreement by Buyer, nor the performance of its obligations under this Agreement,
will (i) violate any provision of the Charter Documents of Buyer, (ii) conflict
with or result in a material breach of, or otherwise give any other contracting
party the right to terminate, or constitute a material default under the terms
of, any material agreement to which Buyer is a party or by which Buyer or any of
its properties or assets is bound or subject, (iii) violate any Order against,
or binding upon, Buyer or any of the properties or assets of Buyer, or (iv)
constitute a violation by Buyer of any applicable Law; except, as to clauses
(ii) through (iv), where such violations, breaches, defaults, terminations or
rights of termination are not, in the aggregate, reasonably likely to have a
material adverse effect on the results of operations and financial condition of
Buyer or impair the ability of Buyer to perform its obligations under this
Agreement.
6.4 Consents and Approvals. Except as set forth on Schedule 6.4,
to the knowledge of Buyer, no third party consent or approval, or approval,
authorization, license, permit or other action by, or filing with, any
Governmental Body, is required, with respect to the actions of Buyer in
connection with the execution and delivery of this Agreement by Buyer or in
order for Buyer to perform its obligation under this Agreement.
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6.5 Orders and Actions. There are no (i) outstanding Orders
against Buyer or (ii) Actions pending or, to the knowledge of Buyer, threatened
against Buyer, in each case, which are reasonably likely to have a material
adverse effect on the results of operations and financial condition of Buyer or
impair the ability of Buyer to perform its obligations under this Agreement.
6.6 No Reliance. Buyer or its representatives have inspected and
conducted a review and analysis (financial and otherwise) of Seller, the
Acquired Assets and the Business, and Seller has cooperated with Buyer in the
completion of Buyer's due diligence. The purchase of the Acquired Assets and
assumption of the Assumed Liabilities by Buyer and the consummation of the
transactions contemplated hereunder by Buyer will not be done in reliance upon
any warranty or representation by, or information from Seller of any sort, oral
or written, except the warranties and representations specifically set forth in
this Agreement. Such purchase, assumption and consummation instead will be done
entirely on the basis of Buyer's own investigation, analysis, judgment and
assessment of the present and potential value and earning power of the Business
and the Acquired Assets as well as those representations and warranties by
Seller specifically set forth in this Agreement.
6.7 Brokerage. No broker, finder or similar agent has been
employed by or on behalf of Buyer or any Affiliate of Buyer in connection with
the transactions contemplated in this Agreement, and no Person with which Buyer
or any Affiliate of Buyer has had any dealings or communications of any kind is
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entitled to any brokerage commission, finder's fee or any similar compensation
in connection with this Agreement or the transactions contemplated hereby.
6.8 Seller's Representations and Warranties. Buyer, its
shareholders and the Listed Managers know of no facts alone, or with notice or
lapse of time, which make or are reasonably likely to make, untrue or incorrect
any of Seller's representations or warranties set forth in this Agreement.
7. EMPLOYEES; EMPLOYEE PENSION AND WELFARE PLANS.
7.1 Employment; Medical Benefits. For purposes of this
Agreement, the capitalized term "Employees" means the employees of Seller
employed in the Business including those on layoff and leave of absence and
those disabled and receiving disability benefits from a disability program of
Seller immediately before the Closing and those employees of Seller and its
Affiliates listed on Schedule 7.1. Effective as of the Closing Date, Buyer shall
offer employment to substantially all Employees. With respect to any Employee
who becomes employed by Buyer, Buyer shall provide a medical, dental and vision
benefit plan with terms comparable to plans generally prevalent in non-
unionized companies in the industry.
7.2 Employee Pension Plans and Benefits.
7.2.1 Unless a transfer occurs pursuant to Section 7.2.4,
Buyer shall not assume any obligation and shall have no liability whatsoever to
Seller, and any Affiliates of Seller, or any Employee or former employee thereof
or any other person or entity with respect to the funding, payment or provision
of any "employee pension benefit plan," as such term is
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defined in Section 3(2) of ERISA, earned or accrued prior to the Closing Date,
if any, under any employee pension benefit plan maintained for the benefit of
employees of Seller or Seller's Affiliates, whether or not any Employees become
employees of Buyer.
7.2.2 As of the Closing Date, Seller shall cause the Caliber
System, Inc. 401(k) Savings Plan ("Caliber Savings Plan") to be amended so that
all Employees who become employees of Buyer shall become fully vested in their
account balances in the Caliber Savings Plan.
7.2.3 As of the Closing Date, Buyer shall establish or
designate one or more defined contribution plans for Employees who become
employees of Buyer ("Buyer's Savings Plan").
7.2.4(a) As soon as practicable after the later of (i) the
receipt by Seller of the representation or determination letter described in
subparagraph (b) below and (ii) the receipt by Buyer of the representation or
determination letter described in subparagraph (b) below, to the extent provided
in the Caliber Savings Plan and permitted by law, Seller shall cause the trustee
of the Caliber Savings Plan to transfer to the trust forming a part of the
Buyer's Savings Plan cash (or with respect to participant loans granted prior to
the Closing Date, if any, such loans and any promissory notes or other documents
evidencing such loans) and/or other property designated by Seller and acceptable
to Buyer and the trustee of Buyer's Savings Plan which is held in the trust
forming a part of the Caliber Savings Plan, in an amount equal to the vested
account
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balances of those participants who become employees of Buyer, valued as of the
date of such transfer.
(b) Within 60 days after the Closing Date, (i) Buyer shall
provide Seller with a copy of Buyer's Savings Plan and related trust and either
(A) provide Seller with a representation acceptable to Seller that the Buyer's
Savings Plan and related trust satisfy the requirements for qualification under
Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code") as
of the later of its effective date or the date of transfer of account balances
or (B) deliver to Seller a favorable determination letter issued by the Internal
Revenue Service ("IRS") that Buyer's Savings Plan and related trust satisfy the
requirements of qualification under Section 401(a) of the Code as of the later
of its effective date or the date of transfer of account balances, and (ii)
Seller shall either (A) provide Buyer with a representation acceptable to Buyer
that the Caliber Savings Plan and related trust satisfy the requirements for
qualification under Section 401(a) of the Code as of the date of transfer of
account balances or (B) deliver to Buyer a favorable determination letter issued
by the IRS that the Caliber Savings Plan and related trust satisfies the
requirements for qualification under Section 401(a) of the Code as of the date
of transfer of account balances. No transfer shall be made unless Buyer provides
Seller and Seller provides Buyer with the representation or determination
letters referred to in this subparagraph.
(c) In consideration for the transfer of assets described in
this subsection, Buyer assumes, effective as of the
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date of transfer of account balances, all of the liabilities and obligations of
Seller and its Affiliates in respect of the account balances so transferred and
their beneficiaries, and Seller and its affiliates and Seller's Savings Plan
shall have no liabilities or obligations to such Employees and their
beneficiaries arising out of Buyer's Savings Plan.
7.3 Employee Welfare Plans, Workers' Compensation. Except as
provided in Section 3.1.3 or as otherwise provided in this Agreement, Buyer
shall have no liability whatsoever to Employees or former employees of Seller
with respect to incurred workers' compensation claims or to benefits provided,
earned or accrued under any "employee welfare benefit plan," as such term is
defined in Section 3(1) of ERISA, sponsored or maintained by the Seller or
Caliber for employees of the Business prior to the Closing Date. Except as
provided in this Agreement, Buyer shall not assume any obligation and shall have
no liability whatsoever with respect to any welfare benefit claims, including
without limitation medical, dental, vision, life, or disability claims incurred
by an Employee or his family prior to the Closing Date or workers' compensation
claims incurred prior to the Closing Date. A medical, dental or vision claim
shall be deemed to have been incurred when the services relating to that event
that is the subject of the claim were performed. A life or disability claim is
deemed to have been incurred on the date of death or disability. A workers'
compensation claim is deemed to have been incurred on the date of accident or,
if the workers' compensation claim relates to an occupational disease or an
injury or condition that was not
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caused by a specific accident, the date on which such occupational disease,
injury or condition is deemed to have occurred under Central Freight Lines Inc.
Voluntary Employee Injury Benefit Plan or the workers' compensation laws of the
state of employee's employment, as applicable.
7.4 WARN and Severance Pay.
7.4.1 Buyer shall be responsible for and shall assume,
indemnify and hold Seller harmless from any and all liabilities which may arise
under or in connection with the Workers' Assistance and Retraining Notification
Act of 1989, as amended, and all rules and regulations promulgated thereunder
("WARN"), relating to the transaction contemplated by this Agreement, including
all losses, expenses, penalties or other liabilities imposed or incurred as a
result of any failure to give the requisite WARN notice or from Buyer's
implementing a "mass layoff" or "plant closing" (as defined by WARN) on or after
the Closing Date. Seller represents that neither it nor its Affiliates have
taken any action prior to the date hereof that would impose any liability under
WARN with respect to this transaction; provided, however, Seller makes no
representations as to the effect, if any, that any actions taken by Buyer on or
after the Closing Date may have in conjunction with any actions taken by Seller
before the Closing Date.
7.4.2 Buyer shall pay, be responsible for and assume,
indemnify and hold Seller harmless from any and all severance liability of
Seller (a) to any Employee in any way caused by or triggered as a result of the
transactions contemplated by this Agreement and (b) to Employees hired by
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Buyer whose employment thereafter terminates. Schedule 7.4.2 lists all severance
pay plans applicable to the Employees.
7.4.3 In addition to Buyer's covenants in this Section 7,
Buyer represents that (i) it will offer employment to at least 100 persons
formerly employed at the Waco, Texas headquarters of the Business who were
terminated in connection with the consolidation of Seller's divisions or who are
currently employed by Seller but to whom WARN notices previously were issued by
Seller if such persons are available and qualified; and (ii) it is Buyer's
present intention after suitable audited financial statements of Buyer are
available to establish an unleveraged ESOP for employees of Buyer into which
employees may invest their own money.
8. Pre-Closing Covenants and Agreements.
8.1 Reasonable Access. (a) From the date hereof until the
Closing, Seller shall give Buyer and a reasonable number of its representatives
reasonable access, during normal business hours and upon reasonable notice to
Seller, to the assets, properties, books, records, agreements and commitments of
Seller relating exclusively to the Business and furnish Buyer during such period
with all such information relating exclusively to the Business or the Acquired
Assets as Buyer may reasonably request; provided, however, that Buyer's right of
access to financial information books and records relating exclusively to the
Business and to tax returns relating exclusively to the Business or the Acquired
Assets shall be governed by Section 10.1 hereof.
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(b) All such information reviewed or obtained by Buyer and its
representatives (and the access thereto) pursuant to Section 8.1(a), 10.1 or
otherwise shall be subject to the terms and conditions of Section 10.5 hereof.
8.2 HSR Act. In connection with this Agreement and the
transactions contemplated in this Agreement, each of Seller and Buyer shall use
its best efforts, to the extent required, prepare and file by May 16, 1997, and
cooperate in the preparation and filing of, adequate and appropriate
notifications with the Federal Trade Commission (the "FTC") and the Antitrust
Division of the United States Department of Justice (the "Antitrust Division")
pursuant to the HSR Act and the rules and regulations promulgated pursuant
thereto and to comply with requests of the FTC and the Antitrust Division for
supplementing information. In no event shall such filings be made later than May
21, 1997. Such notification filings shall be accompanied by a request for early
termination of the applicable waiting periods under the HSR Act. The Seller and
Buyer will cooperate and use their respective reasonable efforts to have such
waiting periods terminated on the earliest practicable date.
8.3 Transition Services Agreement. Contemporaneously with the
execution of this Agreement, Buyer and Seller shall enter into the Transition
Services Agreement ("Transition Services Agreement") in the form attached hereto
as Schedule 8.3.
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8.4 Guaranties. Contemporaneously with the execution of this
Agreement, the persons listed below each shall execute and deliver Guaranties in
the form of Schedule 8.4 in the amount set forth opposite his name below:
Name Amount of Guaranty
---- ------------------
X. Xxxxx $14,250,000
X. Xxxxxxxxx $ 125,000
X. Xxxx $ 200,000
X. Xxxxxxxxx $ 125,000
X. Xxxxx $ 300,000
9. Conditions to Obligations of Buyer and Seller.
9.1 Conditions to Obligations of Buyer. The obligation of
Buyer to consummate the transactions contemplated by this Agreement to be
performed at the Closing shall be subject to the fulfillment, at or prior to the
Closing, of the following conditions (any of which may be waived in whole or in
part in a writing signed by Buyer):
9.1.1 Accuracy of Representations and Warranties. The
representations and warranties of Seller in this Agreement shall be true and
correct in all material respects as of the Closing except for representations
made as of a specified date, which shall be true and correct in all material
respects as of the specified date; provided, however, that in the event that
Seller's representation or warranty in Section 5.12, was not true and correct in
all material respects as of the date of this Agreement and has not been
corrected as of the Closing, Seller may at its option (i) retain the liability
with respect to the specific matter which causes Section 5.12 to be untrue, (ii)
reduce the Purchase Price by an amount agreed to by Buyer and Seller or (iii) do
neither (i) nor (ii). In the event of either
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(i) or (ii), this Section 9.1.1 shall not operate as a condition to Buyer's
obligation to close the transactions contemplated by this Agreement. Buyer shall
give Seller prompt written notice of any facts or circumstances which Buyer may
know prior to Closing which Buyer believes may cause Seller's representations or
warranties to be untrue or incorrect. Buyer's failure to do so shall constitute
a waiver of this Section 9.1.1.
9.1.2 Performance of Covenants and Agreements. Seller shall
have performed or complied with, in all material respects, all covenants and
agreements contemplated by this Agreement to be performed or complied with by it
at or prior to the Closing.
9.1.3 Receipt of Documents. Seller shall have delivered, or
caused to be delivered, to Buyer each of the following:
(a) a certificate of Seller, signed by an executive officer
of Seller, to the effect that the conditions set forth
in Sections 9.1.1 and 9.1.2 have been satisfied;
(b) a certificate of the Secretary or Assistant Secretary
of Seller, in form and substance reasonably
satisfactory to Buyer, certifying as to (i) the
resolutions of the directors of Seller approving and
authorizing this Agreement and the transactions
contemplated hereby and (ii) the By-laws of Seller;
(c) a good standing certificate of Seller issued by the
Secretary of State of California;
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(d) a xxxx of sale, deeds and vehicle titles and other
instruments of assignment covering the Acquired Assets
in forms reasonably acceptable to Buyer;
(e) the Viking License Agreement executed by Seller in the
form set forth as Schedule 9.1.3(e); and
(f) mutual releases of the Listed Managers in the form of
Schedule 9.1.3(f) from the Seller.
(g) the Central License Agreement executed by Seller in the
form set forth as Schedule 9.1.3(g).
9.1.4 No Actions. No request by a third party for a temporary
restraining order ("TRO") attempting to prevent the sale of the Acquired Assets
to Buyer shall be pending in any court of competent jurisdiction, and no
effective preliminary or permanent injunction or other order, including
sufficient bond, shall have been issued by any court of competent jurisdiction
preventing consummation of the sale of the Acquired Assets to Buyer; provided,
however, that a pending request for a TRO shall not terminate Buyer's
obligations to close under this Agreement. If the request for a TRO is rejected,
the Closing shall occur on the later of (i) the Closing Date as provided in this
Agreement or (ii) one business day after the denial of the request for the TRO.
If the TRO is granted and not vacated, Buyer may exercise its rights pursuant to
this Section 9.1.4 to terminate its obligation to close the transactions
contemplated by this
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Agreement only upon the issuance of an effective preliminary or permanent
injunction, including sufficient bond.
9.1.5 HSR Act. Any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")
relating to the sale of the Acquired Assets shall have expired or otherwise been
terminated.
9.2 Conditions to Obligations of Seller. The obligation of
Seller to consummate the transactions contemplated by this Agreement to be
performed at the Closing shall be subject to the fulfillment at or prior to the
Closing of the following conditions (any of which may be waived in whole or in
part in a writing signed by Seller):
9.2.1 Accuracy of Representations and Warranties. The
representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects as of the Closing.
9.2.2 Performance of Covenants and Agreements. Buyer shall
have performed or complied with, in all material respects, all covenants and
agreements contemplated by this Agreement to be performed or complied with by
Buyer at or prior to the Closing.
9.2.3 Receipt of Documents. Buyer shall have delivered, or
caused to be delivered, to Seller each of the following:
(a) the Purchase Price;
(b) a certificate of Buyer, signed by an executive officer
of Buyer, to the effect
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that the conditions set forth in Sections 9.2.1 and
9.2.2 have been satisfied;
(c) a certificate of the Secretary or Assistant Secretary
of Buyer, in form and substance reasonably satisfactory
to Seller, certifying as to (i) the resolutions of the
directors of Buyer approving and authorizing this
Agreement and the transactions contemplated hereby and
(ii) the By-laws of Buyer;
(d) Charter of Buyer certified by the Secretary of State of
the State of Texas;
(e) a good standing certificate of Buyer issued by the
Secretary of State of the State of Texas;
(f) an instrument of assumption evidencing Buyer's
assumption of the Assumed Liabilities in form
reasonably acceptable to Seller;
(g) mutual releases in the form of Schedule 9.1.3(f) from
each of the Listed Managers;
(h) the Viking License Agreement executed by Buyer in the
form set forth as Schedule 9.1.3(e); and
(i) the Central License Agreement executed by Buyer in the
form set forth as Schedule 9.1.3(g).
9.2.4 No Actions. No request by a third party for a TRO
attempting to prevent the sale of the Acquired Assets to Buyer shall be pending
in any court of competent jurisdiction,
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and no effective preliminary or permanent injunction or other order, including
sufficient bond, shall have been issued by any court of competent jurisdiction
preventing consummation of the sale of the Acquired Assets to Buyer; provided,
however, that a pending request for a TRO shall not terminate Seller's
obligations to close under this Agreement. If the request for a TRO is rejected,
the Closing shall occur on the later of (i) the Closing Date as provided in this
Agreement or (ii) one business day after the court denial of the request for the
TRO. If the TRO is granted and not vacated, Seller may exercise its rights
pursuant to this Section 9.2.4 to terminate its obligations to close the
transactions contemplated by this Agreement only upon the issuance of an
effective preliminary or permanent injunction, including sufficient bond.
9.2.5 HSR Act; Governmental Action. Any applicable waiting
period under the HSR Act relating to the sale of the Acquired Assets shall have
expired or otherwise been terminated.
10. Other Covenants and Agreements.
10.1 Access to Financial Books and Records and Tax Returns.
(a) Prior to Closing. In addition to the provisions of the
Transition Services Agreement governing Phase I, Seller shall permit Buyer to
consult with Seller's independent auditors and, to a limited extent, Buyer's
officers and management, with respect to Buyer's and Buyer's independent
auditor's planning to determine the feasibility of the post- Closing creation of
audited historical financial statements
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(balance sheet, income statement and cash flow) for the Business for periods
prior to Closing. Prior to Closing, Seller will not provide Buyer access to
Seller's financial information, books and records and tax returns related to the
Business ("Business Financial Books and Records"). Buyer understands that for
certain periods, including all times since January 1, 1996, Business Financial
Books and Records are not available in a separate form from that of the
remainder of the business of Seller. All fees and expenses of SELLER'S
INDEPENDENT AUDITORS for such services shall be billed to and paid by Buyer.
(b) Post-Closing.
(1) At the Seller's sole expense, for a period of five years
after the Closing, Buyer shall provide Seller (or any successor of Seller) with
access to Buyer's officers and employees and shall retain and make available to
the Seller (or any successor) any of the books, records and tax returns of
Seller or Buyer relating to the Business (or copies or extracts thereof), at any
reasonable time during normal business hours for any reasonable purpose
including, without limitation, settling or defending any claim or responding to
any tax audit and preparing financial statements and, upon request, shall
provide reasonable assistance and guidance to the Seller (or any successor) and
its agents in connection with the retrieval, organization and review of such
records. Buyer shall maintain such records during such five-year period in the
format (electronic or otherwise) in which such records are maintained as part of
the Buyer's normal business. After expiration of such five-year period, Buyer
shall have the right to cause the disposition of any such books and
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records, but shall do so only upon providing the Seller (or any successor) with
30 days' advance written notice. Seller (or any successor) shall have the right,
at its own expense within 30 days after receipt of such notice, to make copies
or extracts of such books and records, or to obtain the originals thereof for
its own.
(2) Except for the matters covered in Section 2.1.9 and
Sections 10.1(b)(3) and (4) below, at the Buyer's sole expense, for a period of
five years after the Closing, Seller shall provide Buyer (or any successor of
Buyer) with access to Seller's officers and employees and shall retain and make
available to the Buyer (or any successor) any of the books, records and tax
returns of Seller or Buyer relating to the Business (or copies or extracts
thereof), at any reasonable time during normal business hours for any reasonable
purpose including, without limitation, settling or defending any claim or
responding to any tax audit and preparing financial statements and, upon
request, shall provide reasonable assistance and guidance to the Buyer (or any
successor) and its agents in connection with the retrieval, organization and
review of such records. Seller shall maintain such records during such five-year
period in the format (electronic or otherwise) in which such records are
maintained as part of the Buyer's normal business. After expiration of such
five-year period, Seller shall have the right to cause the disposition of any
such books and records, but shall do so only upon providing the Buyer (or any
successor) with 30 days' advance written notice. Buyer (or any successor) shall
have the right, at its own expense within 30 days after receipt
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of such notice, to make copies or extracts of such books and records, or to
obtain the originals thereof for its own.
(3) At Buyer's sole expense after Closing, Seller shall provide
Buyer with:
(i) such records regarding the Employees and retirees of Seller
related exclusively to the Business and related to the
Assumed Liabilities as Buyer may request, other than any
Business Financial Books and Records;
(ii) for a period of one year after Closing: (x) authorization to
contract with Seller's independent auditors to make
reasonable attempt to provide Buyer with compilations of any
relevant Business Financial Books and Records as relates
exclusively to the Business to assist Buyer in its attempt
to prepare financial statements for calendar years 1996 and
1997; (y) access through Seller's independent auditors to
such general ledgers, accounts and other source documents,
as may be required in order to permit Buyer's independent
auditors to audit such financial statements; provided,
however, Seller makes no representation that any such
general ledgers, accounts or other documents exist or can be
segregated exclusively to the Business for such periods.
(4) With respect to Section 10.1(b)(2)(ii), above, Seller
shall provide to Seller's independent auditors limited assistance and guidance
from Seller's officers and employees. Such assistance shall be provided during
normal business hours and in a manner that does not interfere with the
performance of the normal duties of such officers and employees. In addition,
Seller shall provide Seller's independent auditors access to Seller's financial
information, books and records, tax returns and other information regarding
other parts of Seller's business to the extent related to the Business.
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(5) With respect to Section 10.1(b)(3) and (4), above, all
fees and expenses of Seller's independent auditors, contractors, or service
providers, as well as the time of Seller's officers and employees shall be paid
by Buyer on the same rates and basis as set forth in the Transition Services
Agreement.
10.2 Delivery of Property after Closing; Accounts Receivable.
(a) From and after the Closing, Buyer shall (i) transfer and deliver to Seller,
promptly after Buyer's receipt thereof, any property which Buyer may receive
that belongs to Seller and (ii) provide reasonable cooperation to Seller in
collecting any accounts receivable of Seller relating to Seller's operation of
the Business ("Seller A/R"). Following the procedures set forth in 49 CFR
Sections 1008.5 - 1008.9, to the extent Buyer receives a payment from a customer
who owes money under a Seller A/R and also to Buyer, such payment shall be
applied against the oldest outstanding freight xxxx of the customer to Buyer and
then to Seller, unless the customer specifically identifies the freight xxxx to
which the remittance applies. Buyer shall promptly forward all amounts so
collected to Seller.
(b) From and after the Closing, Seller shall transfer and
deliver to Buyer, promptly after Seller's receipt thereof, any property,
including any payments of Buyer's invoices pursuant to the method described in
Section 10.2(a), which Seller may receive that belongs to Buyer.
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10.3 Cooperation. From and after the Closing, Buyer shall
cooperate and use its reasonable best efforts to assist Seller in investigating
any claims or demands and in defending any Orders or Actions related to Seller's
or its predecessors ownership or operation of the Business, including but not
limited to, making available to Seller for discovery, testimonial or any other
legitimate purpose relevant documents and employees who may have information
related to such claims, demands, Orders or Actions.
10.4 Freight Claims. Seller shall be responsible for all
claims for damaged or lost freight ("Freight Claims") incurred with respect to
deliveries made prior to the Effective Date and Buyer shall be responsible for
all Freight Claims for freight delivered by Buyer on or after the Effective
Date, notwithstanding when such Freight Claims may be made and regardless of any
setoffs or reductions taken by customers of either Buyer or Seller.
10.5 Confidentiality. Buyer agrees to be bound by the
provisions set forth on Schedule 10.5 hereto.
11. Termination.
11.1 Termination. Anything herein to the contrary
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing Date only:
11.1.1 By mutual written consent of Seller and Buyer;
11.1.2 By Seller or Buyer, if the Closing does not occur on or
before June 30, 1997, unless extended
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pursuant to Section 4.1(a), 4.1(b), 9.1.4, 9.2.4, or 11.1.4; or
11.1.3 By Buyer, in the event the average daily freight xxxx
count of the Business (including both outbound and inbound) for any consecutive
four-week period commencing with the four-week period beginning on May 11, 1997,
falls below 13,300, and Buyer shall have given written notice to Seller of its
intention to terminate this Agreement pursuant to this Section 11.1.3 ("Buyer's
MAC Notice") and shall have paid to Seller an amount equal to Seller's
out-of-pocket expenses with respect to this transaction to the date of
termination by Buyer. The average daily freight xxxx count will be determined by
reference to the TAR015P4 report produced by Seller by dividing the total COUNT
column for the Valley, Plains, Prairie and Gulf regions for both OUTBOUND and
INBOUND, on each week's report by five (5) (excluding any legal holidays).
Seller's out-of-pocket expenses shall include its legal fees and the expenses of
Seller's counsel, any amounts owing by Buyer to Seller under the Transition
Services Agreement, fees and expenses of Seller's outside auditors, HSR Act
filing fees and the out-of-pocket expenses of Xxxxxxx Sachs & Co. with respect
to this transaction.
11.1.4 By Seller, in the event the average daily freight xxxx
count of the Business (including both outbound and inbound) for any consecutive
four-week period commencing with the four-week period beginning on May 11, 1997
falls below 15,100, and Seller shall have given written notice to
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Buyer of its intention to terminate this Agreement pursuant to this Section
11.1.4 ("Seller's MAC Notice") and shall have paid to Buyer an amount equal to
Buyer's out-of-pocket expenses with respect to this transaction to the date of
termination by Seller up to a maximum of $2.0 million. The average daily freight
xxxx count will be determined in the same manner as described in Section 11.1.3
with reference to the TAR015P4 report produced by Seller. Buyer's out-of-pocket
expenses shall consist of the legal fees and expenses of Buyer's counsel, any
amounts expended by Buyer under the Transition Services Agreement and for data
processing and communication equipment and personnel related to the Transition
Services Agreement net of the fair market value of such equipment on the date of
termination. Notwithstanding the foregoing, if Seller shall have given Buyer
Seller's MAC Notice, Buyer shall have the right to accelerate the Closing Date
to a date which is ten (10) days after the date of Seller's MAC Notice
hereunder. Buyer shall give Seller notice of its election to accelerate the
Closing Date not later than two business days after the date of Seller's MAC
Notice. Upon Buyer's election to accelerate the Closing hereunder, (i) Buyer
shall be deemed to have waived all conditions in this Section 9 other than those
in Section 9.1.3 and 9.1.6, (ii) Seller shall have no obligation to pay any
amounts to Buyer pursuant to this Section 11.1.4 and Seller's MAC Notice shall
be of no further force and effect and (iii) the Transition Services Agreement
shall terminate except for Buyer's obligations for amounts owed thereunder and
Buyer's confidentiality obligation.
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11.2 Effects of Termination. If this Agreement is terminated
pursuant to Section 11.1 and the transactions contemplated hereby are not
consummated as described above, this Agreement shall become void and of no
further force and effect, except for the provisions of Section 8.1 relating to
the obligations of Buyer under the Confidentiality Agreement, Section 12.15
relating to expenses and Section 12.16 relating to publicity.
12. Miscellaneous.
12.1 Survival of Representations and Warranties and Covenants.
The representations and warranties of Seller contained in this Agreement (or in
any certificate delivered pursuant to Section 9.1.3 and 9.2.3 of this Agreement)
shall not survive the Closing. Seller shall have no liability to Buyer for any
breach or claimed breach or inaccuracy thereof.
12.2 Assignment; Successors and Assigns. Prior to the Closing,
no party to this Agreement shall convey, assign or otherwise transfer any of its
rights or obligations under this Agreement without the express written consent
of the other party to this Agreement; provided, however, that Seller may assign
its rights hereunder to any of its Affiliates without the consent of Buyer;
provided, further, however, that an assignment of rights under this Agreement
shall in no way diminish the obligations of the parties to this Agreement. This
Agreement shall be binding upon and shall inure to the benefit of the parties to
this Agreement and their respective successors and permitted assigns.
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12.3 Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent by telecopy or by reputable overnight courier service, and shall be
deemed given when so delivered by hand, telecopied or one business day after
sending in the case of overnight courier service as follows:
12.3.1 If to Seller, copies to:
Viking Freight, Inc.
c/o Caliber System, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
Copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
12.3.2 If to Buyer, as follows:
Central Freights Lines, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
Copy to:
Xxxxxxx Law Firm, P.C.
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Xx., Esq.
Telecopy No.: (000) 000-0000
or in any case to such other address or telecopy number as hereinafter shall be
furnished as provided in this Section 12.3 by any of the parties to this
Agreement to Seller and Buyer.
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12.4 Waiver; Remedies. No delay on the part of Buyer or Seller
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of Buyer or Seller of any right, power
or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder, nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
12.5 No Recourse Against Others. No director, officer,
employee or agent, in his capacity as such, of Seller or Caliber shall have any
liability hereunder or for any claim related to this Agreement. Buyer hereby
waives and releases all such liability as part of the consideration for the
Acquired Assets.
12.6 Amendment. This Agreement may be modified or amended only
by written agreement of the parties.
12.7 Further Assurances. Seller shall, at the written request
and expense of Buyer, at any time and from time to time following the Closing
hereunder, execute and deliver to Buyer all such further instruments and take
all such further action as may be reasonably necessary or appropriate in order
to more effectively sell, assign, transfer and convey to Buyer the Acquired
Assets or otherwise to confirm or carry out the provisions of this Agreement.
Buyer shall at any time and from time to time following the Closing hereunder,
execute and deliver to Seller all such further instruments and take all such
further action as may be reasonably necessary or appropriate in order to
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more effectively assume the Assumed Liabilities or otherwise to confirm or carry
out the provisions of this Agreement.
12.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute a single instrument.
12.9 Governing Law; Jurisdiction; Language. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Ohio without regard to principles of conflicts of law. Each party hereto agrees
that it shall bring any action or proceeding in respect of any claim arising out
of or related to this Agreement or the transactions contained in or contemplated
by this Agreement, whether in tort or contract or at law or in equity,
exclusively in the United States District Court for the Southern District of
Ohio in Columbus or any state court in the State of Ohio sitting in Columbus
(the "Chosen Courts") and (i) irrevocably submits to the exclusive jurisdiction
of the Chosen Courts, (ii) waives any objection to laying venue in any such
action or proceeding in the Chosen Courts, (iii) waives any objection that the
Chosen Courts are an inconvenient forum or do not have jurisdiction over any
party hereto and (iv) agrees that service of process upon such party in any such
action or proceeding shall be effective if notice is given in accordance with
Section 12.3 of this Agreement. Buyer irrevocably designates Xxxx X. Xxxxxxx,
Xx., Esq., 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, as its
agent and attorney-in-fact for the acceptance of service of process and making
an appearance on its behalf in any such claim or proceeding and
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taking all such acts as may be necessary or appropriate in order to confer
jurisdiction over it upon the Chosen Courts and Buyer stipulates that such
consent and appointment is irrevocable and coupled with an interest.
12.10 Bulk Sales Laws. Buyer waives compliance by Seller with
the provisions of any bulk transfer laws of any jurisdiction in connection with
the transactions contemplated by this Agreement.
12.11 Schedules. The Schedules attached to this Agreement are
incorporated in this Agreement and shall be part of this Agreement for all
purposes, and information disclosed in response to any Section shall, should the
existence of such information be relevant to any other Section, be deemed to be
disclosed with respect to such Section whether or not a specific cross-reference
appears.
12.12 Passage of Title and Risk of Loss. Legal title,
equitable title and risk of loss with respect to the Acquired Assets shall pass
to Buyer at the Closing.
12.13 Apportionment of Taxes, Charges and Payments. All
rentals, real property taxes, personal property taxes, charges, payments and
fees (including any accruals or prepayments of any thereof) relating to any of
the Acquired Assets or the Business or arising under any Permits (other than
refunds with respect to vehicle registrations transferred pursuant to Section
2.1.8), Leases or Contracts transferred to and assumed by Buyer under this
Agreement which relate to periods of time which include the Effective Date,
shall be apportioned between Buyer and Seller as of the Effective Date with
Seller
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bearing the proportionate expense (or being entitled to receive reimbursement)
thereof attributable to the number of days in such period which precede the
Effective Date to which such rental, tax, charge, payment or fee relates and
Buyer bearing the proportionate expense (or being entitled to receive
reimbursement) thereof attributable to the number of days in such period
including and following the Closing Date. On the Closing Date, Buyer shall pay
to Seller, or Seller shall pay to Buyer (or consent to a deduction therefor from
the Purchase Price), as the case may be, the net amount estimated by Buyer and
Seller to be owed by one party to the other party as a result of such
apportionments, and Buyer or Seller, as the case may be, shall make appropriate
adjusting payment(s) to the other after the Closing in respect of any rentals,
taxes, charges, payments or fees not capable of being estimated or ascertained
on the Closing Date, or for which the actual charges vary from the estimated
amounts thereof used in calculating the estimated amounts to be apportioned at
Closing.
12.14 Transfer Taxes. Notwithstanding anything in this
Agreement to the contrary, all stamp, goods and services, sales, use, real
estate transfer and other such taxes, fees and duties (including any penalties
and interest thereon) as well as title and licensing fees incurred in connection
with this Agreement and the transactions contemplated hereby (other than those
imposed on or measured by the income or net worth of Seller) (collectively, the
"Transfer Taxes") shall be timely paid by Buyer to the appropriate Governmental
Body or to Seller if such Transfer Taxes are imposed on Seller or if Seller is
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required to collect such taxes from Buyer (in which event such payment shall be
made to Seller at the Closing). Schedule 12.14 sets forth a partial list of the
states with respect to which Transfer Taxes will be either imposed upon Seller
or where Seller is required to collect such taxes from Buyer and with respect to
which Buyer shall make payment to Seller at Closing. Failure by Seller to
collect any Transfer Taxes at Closing, whether or not noted on Schedule 12.14
shall not release Buyer from its obligations under this Section 12.14. In
addition and except for tax returns relating to Transfer Taxes that are required
by law to be filed by Seller (which returns shall be timely filed by Seller),
Buyer shall timely file all tax returns and other necessary documentation
relating to any Transfer Tax.
12.15 Expenses of Sale. Except as otherwise expressly provided
in this Agreement, Seller, on the one hand, and Buyer, on the other hand, shall
bear its own direct and indirect expenses incurred in connection with the
negotiation and preparation of this Agreement and the consummation and
performance of the transactions contemplated hereby, including, without
limitation, all legal and accounting fees and brokers' and finders' fees.
12.16 Communications. No publicity release or announcement
concerning the transactions contemplated hereby shall be issued by either party
without the advance consent of the other party, except any such release or
announcement as may be required by applicable Law or by obligations pursuant to
any listing agreement with any national securities exchange; provided, however,
that the foregoing shall not apply to any
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announcements or materials distributed by Seller to it employees. Buyer and
Seller agree to follow the communications policy attached hereto as Schedule
12.16.
12.17 Freight in Transit. (a) Notwithstanding the provisions
of Section 2.2.2 of this Agreement, with respect to freight in transit at the
Effective Date, Buyer and Seller shall share the revenue for such freight as set
forth on Schedule 12.17(a).
(b) Buyer agrees to take the actions set forth on Schedule
12.17(b) with respect to all freight picked up prior to the Effective Date by
Seller and delivered after the Effective Date.
12.18 Captions. All section titles or captions contained in
this Agreement and the table of contents to this Agreement are for convenience
only, shall not be deemed a part of this Agreement and shall not affect the
meaning or interpretation of this Agreement. Unless otherwise indicated, all
references herein to numbered Sections are to Sections of this Agreement.
12.19 Rights of Third Parties. Nothing in this Agreement is
intended, or shall be construed, to confer upon or give any person or entity
other than the parties to this Agreement any rights or remedies under or by
reason of this Agreement except as expressly set forth in this Agreement.
[End of Text]
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IN WITNESS WHEREOF, the parties have caused this Asset
Purchase Agreement to be duly executed and delivered as of the date first above
written.
BUYER:
CENTRAL FREIGHT LINES, INC.
By: /s/Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
SELLER:
VIKING FREIGHT, INC.
By: /s/Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Attorney In Fact
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