ASSET PURCHASE AGREEMENT
Asset Purchase Agreement dated as of August 18, 1995 (the
"Agreement"), between TRISM, INC., a Delaware corporation (
"Buyer"), on the one hand, and, on the other, C. I. Whitten
Transfer Company, a Delaware corporation ("Seller") and
Intrenet, Inc., an Indiana corporation ("Seller's Parent
Company").
W I T N E S S E T H:
WHEREAS, Seller wishes to sell and Buyer wishes to purchase
certain Assets (as defined herein), and assume certain
obligations (as defined herein), all subject to and upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants, agreements, representations and warranties
hereinafter contained, and intending to be legally bound hereby,
Buyer, Seller and Seller's Parent Company hereby agree as
follows:
1. TERMS OF PURCHASE AND SALE; CLOSING.
1.1 Purchase and Sale of Assets. Upon the bases of the
representations and warranties and subject to the terms and
conditions of this Agreement, Buyer agrees to purchase and
acquire from Seller and Seller agrees to sell, convey, transfer,
assign and deliver to Buyer on the Closing Date (as defined in
Section 1. 8 hereof ) the Assets (as defined below) , against
receipt by Seller on the Closing Date of the Purchase Price
specified in Section 1.3 hereof. The term the "Business" shall
mean Seller's business as a truckload carrier of munitions,
classes A and B explosives, articles designated sensitive by the
United States government, and hazardous waste materials. The
term "Asset" or "Assets" shall mean and include all of the
goodwill, property, rights, and franchises of the Seller of
every nature and description, personal and mixed, wheresoever
located, used in connection with the Business other than the
Excluded Assets (as defined below), including without limitation
as follows:
(a) Tractors. Ten (10) used over-the-road tractors (the
"Used Tractors"), further described on Schedule 1.1(a) hereto;
(b) Trailers. Thirteen (13) miscellaneous flatbed trailers;
thirty (30) 1992 model Fontaine Twistlock flatbed trailers; one
hundred and twenty nine (129) 1988 model Fruehauf van trailers;
and one (1) 1987 Utility refrigerated trailer (collectively the
"Trailers"), further described on Schedule 1.1(b) hereto;
(c) Drom Boxes. One hundred eighty (180) less-than-truckload
freight boxes (the "Drom Boxes"); (d) QualComm Units. One
hundred (100) mobile satellite communication outfits (each
consisting of a transporter, receiver, antennae and keyboard)
manufactured by QualComm, Inc. (the "QualComm Units") further
described on Schedule 1.1(d) hereto; (e) Real Estate. Fee
simple title to that real property owned by Seller located in
Greene County, Indiana (the "Crane Facility"), further described
in Schedule 1.1(e) hereto, together with all of Seller's
improvements thereon, free and clear of any and all liens and
encumbrances except for accrued tax obligations not due; (f)
Miscellaneous Assets. All tangible and intangible personal
property used by Seller in the operation of the Business, other
than the Excluded Assets (as defined below), such as but not
limited to the following (collectively referred to as the "Other
Miscellaneous Assets"): (1) service vehicles, such as
automobiles, mobile cranes, forklifts, service trucks and
straight trucks, and all furniture, furnishings, and office
equipment used by Seller in the Business, further described on
Schedule 1.1(f); (2) the unexpired portion of all licenses and
permits; (3) extra equipment, such as but not limited to
tarpaulins, chains, binders and winches, and other cargo
securements and articles required by the U.S. Department of
Transportation, and all fuel on board the Used Tractors and the
tractors described in Section 1.1(h) below; (4) the right to
acquire all operating rights issued to Seller by the Interstate
Commerce Commission and state public service commissions or
other governmental agencies (including Canadian provinces)
regarding economic regulation of transportation; (5) the
exclusive right to use the name "C. I. Whitten Transfer Company"
and any derivation thereof; (6) all customer lists and card
files disclosing the identities of Seller's customers and
prospective customers; and (7) the sole right to assert any
"undercharge" claims against customers, consignors and/or
consignees in connection with transportation services rendered
by Seller prior to Closing based upon a "filed rate doctrine" or
other similar legal theory; (g) Drivers. No fewer than (1)
33 two-driver teams qualified to transport munitions, and (2) 25
single drivers, as further described on Schedule 1.1(g) hereto
and subject to the further terms and conditions as set forth
thereon; (h) Assumed Leases. All of Seller's interest in
(1) the leasehold interest in and leasehold improvements to or
upon the leased property located at or near Ona, West Virginia
in Cabell County, a copy of which is attached hereto as Schedule
1.1(h)(1); and (2) the equipment leases of Seller in connection
with five (5) 1993 model White GMC tractors, seventeen (17) 1994
model White GMC tractors and twelve (12) 1994 model Freightliner
tractors, further described on Schedule 1.1(h)(2) hereto; and
(3) the leasehold interest with a purchase option between Seller
and Tyson Corp. concerning a mobile office located at the Crane
Facility, a copy of the agreement concerning which is attached
hereto as Schedule 1.1(h)(3) (collectively the "Assumed
Leases"). The Assumed Leases are current and in good standing,
and all lease payments and other amounts due thereunder have
been paid. (i) The New Volvo Tractors. Twenty (20) new
1995 model White GMC tractors, further described on Schedule
1.1(i) hereto (the "New Volvo Tractors").
1.2 The Excluded Assets. Seller shall retain and shall not
transfer to Buyer any of the following assets used in or
relating to the operation of the Business (collectively the
"Excluded Assets"): (i) any accounts receivables
(except as provided in Section 1.1 (f) (7) immediately above) or
other accrued rights to payments, including but not limited to
insurance deposits, highway use tax deposits and credits, fuel
tax deposits and credits, fuel system deposits, and other
deposits; (ii) any leases other than the Assumed
Leases; (iii) any employment agreements of Seller,
(iv) cash, certificates of deposit and other cash
equivalents; (v) employee advances and prepaid
employee benefits; (vi) all corporate books and records
in existence at the Closing; and (vii) financial
statements, books of accounts, general ledgers, and tax records
in existence at Closing.
1.3 Purchase Price. (a) In full consideration for the
purchase of the Assets and the covenant of Seller and Seller's
Parent Company not to compete with Buyer contained in Section
6.2 hereof, and upon the terms and subject to the conditions set
forth in this Agreement, Buyer shall pay the purchase price
described in subparagraph (b) below, payable to Seller by wire
transfer to a bank account designated by Seller at the Closing.
(b) The purchase price for the Assets (the "Purchase
Price") shall be $2,987,753 subject to revision and adjustment
as provided herein below and Section 1.10 below. The Purchase
Price was calculated as set forth in Schedule 1.3, and the
Assumed Obligations are based upon an examination of Seller's
books and records as of August 9, 1995. The Purchase Price is
subject to revision and adjustment as to the actual amount of
the Assumed Obligations as of the Closing Date. Seller and
Buyer hereby covenant and agree that the allocation of the
Purchase Price set forth in Schedule 1.3 shall be controlling
for purposes of determining any federal, state, local or foreign
income tax consequences resulting from the transactions
contemplated by this Agreement. The parties further covenant
and agree not to take or adopt with any taxing authority in any
jurisdiction an income tax position which is materially
inconsistent with such allocation, unless a party reasonably
determines that such a position is necessary or required in
order to comply with a jurisdiction's income tax laws or
regulations, or in order to avoid civil or criminal sanctions,
including interest and penalties. Seller and Buyer shall
cooperate with each other in meeting the requirements of Section
1060 of the Internal Revenue Code of 1986, as amended, and shall
each file I.R.S. Form 8594 in accordance with applicable rules
and regulations. Seller's employer identification number is
55-0536462. Buyer's employer identification number is
13-3491658.
1.4 Instruments of Transfer and Conveyance. (a) The sale,
conveyance, transfer, assignment and delivery of the Assets as
herein provided, shall be effected by delivery by Seller at the
Closing of such bills of sale, deeds, endorsements, assignments,
certificates or other instruments of transfer and conveyance, in
form and substance reasonably satisfactory to Buyer and its
counsel, as shall be effective to vest in Buyer the Assets.
(b) Seller agrees that it will on, and, from time to time
after, the Closing Date, upon the request of Buyer, promptly do,
execute, acknowledge and deliver and will cause to be done,
executed, acknowledged and delivered, all such further acts,
certificates, assignments, transfers, conveyances, powers of
attorney, assurances, and other documents as may be reasonably
necessary or advisable in the opinion of Buyer's counsel to vest
in Buyer the Assets. (c) This Agreement shall not be deemed
to constitute an agreement to assign any Asset if the attempted
assignment of such Asset would constitute a breach thereof or
would in any way adversely affect the rights of Buyer thereto.
Seller shall use its best efforts to cause to be obtained the
consent of any other party to a claim, license, lease, purchase
order or other contract to Buyer; provided, however, that if
Seller shall fail to obtain any such consent, and thereafter
Seller shall receive any payment from such unconsenting person
that, had such consent been obtained would have been owed to
Buyer, then Seller shall promptly pay over to Buyer the proceeds
of such payment. Seller shall not take any action, or permit
any action to be taken by others subject to its control,
including without limitation its licensees, or fail to take any
action that would adversely affect the validity or enforcement
of any rights under any license or agreement sold, assigned and
transferred to Buyer pursuant to this Agreement.
1.5 Assumption of Liabilities of Seller. (a) On the terms
and subject to the conditions set forth herein, Buyer will
assume and agrees to pay, perform and discharge only the
obligations and liabilities arising out of or attributable to
the Assets from and after the Closing Date and those contracts,
agreements, commitments and leases listed on Schedule 1.5.
Buyer shall not assume any obligations or liabilities of Seller
under or in connection with such contracts, agreements,
commitments or leases in respect of any matters occurring on or
prior to the Closing Date or included in the Excluded Assets.
(b) Except as expressly set forth in Section 1.5(a) above,
Buyer will not assume or perform any liabilities or obligations
of Seller or with respect to the Assets, including without
limitation any of the following obligations and liabilities:
(i) any liability or obligation of Seller for federal,
state, local or other taxes, assessments or governmental charges
(including interest and penalties thereon);
(ii) any liability or obligation of Seller for or in
respect of any loan or indebtedness to or for the benefit of any
person, partnership, or corporation; (iii) any
liability or obligation of Seller with respect to termination or
dismissal prior to the Closing Date by Seller of any employee,
representative or agent; (iv) any liabilities or
obligations for any pension, profit sharing or benefit plan or
related trust covering any of the employees of Seller and any
liability or obligation thereunder or with respect thereto;
(v) any liabilities or obligations for wages, (including,
without limitation, bonuses, salaries and commissions), sick
leave, vacation pay, retirement and severance benefits, and all
other forms of compensation or benefits due and payable by
Seller to its employees or accrued in respect of service with
Seller or other claims of any employees of Seller based on
events occurring on or before the Closing Date; (vi)
any liability or obligation arising out of, based upon or
resulting from any claims or lawsuits arising out of the conduct
of the Business on or before the Closing Date, including,
without limitation, claims based on negligence, breach of
warranty or product liability or service liability in respect of
products manufactured or assembled or services rendered by
Seller on or before the Closing Date; and (vii) any
liability or obligation arising out of, based upon or resulting
from the Assets and/or the conduct of the Business on or before
the Closing Date.
(c) Notwithstanding Sections 1.5(a) and 1.5(b) above, the
parties agree that Seller shall be responsible for completing
all shipments that are picked-up at the customer location on or
before midnight on the date preceding the Closing Date through
the time that such shipments are unloaded at the shipment
destination. Seller shall be entitled to all accounts
receivable or other rights to payment generated after the
Closing Date with respect to such shipments and shall be
responsible for all costs related to such shipments, including
but not limited to costs such as driver and owner-operator
settlement and any related tax obligation, agent commissions,
fuel and mileage taxes, load related special permits, tolls,
bridge fees, any cargo, public liability or workers compensation
related claims, and income or franchise taxes. Seller shall be
responsible for all repair, maintenance, tire expense and fuel
expense relating to any tractors or trailers included in the
Assets used to make such shipments from and after the Closing
Date.
1.6 Further Agreements. (a) Immediately after Closing,
Seller shall amend its Certificate of Incorporation and change
the operation of its businesses so as to cease all use of the
name C. I. Whitten Transfer Company, and similar names, except
for purposes of collecting debts owed to Seller, liquidating
debts of Seller, and completing contracts for trucking services
in progress on the Closing Date or to which Seller is committed
and cannot assign to Buyer, and shall do or cause to be done all
such acts and things necessary to effect such change. Seller
shall from time to time give all reasonably requested consents
or approvals, to the extent Seller has the right to do so, and
take such other steps as reasonably requested to permit Buyer
the use of such names. (b) Seller has furnished complete
and accurate schedules and lists of equipment to be sold,
conveyed and transferred to Buyer hereunder, which equipment is
listed on Schedules 1.1(a), 1.1(b), 1.1(c), 1.1(f) and 1.1(i)
hereof. (c) Seller and Buyer will each bear their
respective legal, accounting and other expenses incurred in
connection with this Agreement, any actions taken prior to its
execution and in contemplation thereof, and actions taken under
this Agreement or in connection with the transactions
contemplated hereby. (d) Buyer shall pay all sales, use or
gross receipts taxes applicable to the transfer of Assets
pursuant to this Agreement. Buyer shall pay all transfer,
stamp, documentary, title and recording taxes or fees (other
than sales, use or gross receipts taxes), applicable to the
transfer of Assets under this Agreement. Personal property
taxes, if applicable to any of the Assets, shall be prorated
between the parties as of Closing. (e) Buyer shall
cooperate in obtaining the release of any guarantees of the
Assumed Leases made by Seller's Parent Company and will offer
Buyer's own guaranty in lieu thereof. In the event that any
lessor refuses to release Seller's Parent Company from such
guaranty, Buyer will indemnify Seller's Parent Company for any
loss, damage, liability, payment of obligation or expenses
including without limitation, reasonable legal fees, arising out
of any such guaranty after the Closing Date. (f) Seller
shall cooperate with Buyer or Buyer's assignee in completing any
filing of any notice of exemption with the Interstate Commerce
Commission ("ICC") and any application for temporary authority
to operate Seller's motor carrier properties during the pendency
of the notice of exemption proceeding; provided, however, that
any failure to obtain any required ICC approval by September 1,
1995, shall not excuse Seller from completing the purchase of
the Assets other than Seller's operating rights issued by the
ICC.
1.7 Operation of the Business Until Closing Date. It is
understood and agreed that the ownership of the Assets, risk of
loss, and control of the Business shall be vested exclusively in
Seller until the Closing shall have occurred hereunder,
whereupon it shall exclusively vest in the Buyer subject to the
provisions of Section 1.5 (c) above.
1.8 Closing. The closing hereunder (the "Closing") shall be
held at the offices of Seller on August 28, 1995 at 10:30 AM, or
such other time and place as Buyer and Seller may agree upon in
writing (the "Closing Date"). All transactions contemplated by
this Agreement to occur at Closing shall be deemed to take place
simultaneously as of the close of business on the date of
Closing, and such shall be deemed effective only upon
fulfillment of all terms, conditions (unless waived by the party
not required to comply with such terms and conditions) and
transactions contemplated by this Agreement. At Closing:
(a) Seller will deliver to Buyer the instruments and documents
set forth in Section 1.4. (b) Buyer will deliver
or cause to be delivered the Purchase Price specified in Section
1.3 (b) hereof. (c) Each party will execute and
deliver all documents and agreements required to be
executed and delivered at or prior to Closing. (d) Each
party will deliver to the other such other certificates,
assignments, consents, and other documents as
reasonably be requested by the other party to evidence
compliance with the terms hereof.
Simultaneously with such delivery, Seller will use its best
efforts and take all other action as may be necessary to put
Buyer in possession and control of the Assets.
1.9 Escrow for Real Estate Purchase. If in the event that as
of the Closing Date, as to the real estate owned by Seller
situated in Greene County, Indiana, as described in Section
1.1(e) hereof and further described on Schedule 1.1(e), (a)
Buyer has not completed its environmental due diligence, or (b)
if Buyer has completed its environmental due diligence and has
accepted the property but the real estate transaction is not
otherwise ready for closing because of such legal matters as
(but not limited to) surveys, title examinations, issuance of
title policies, and preparation of legal documents, then the sum
of $175,000 shall be withheld from the Purchase Price and placed
in escrow pending closing of said real estate transaction.
1.10 Proration of Rental Payments and Federal Highway Use Taxes.
(a) At Closing, equipment lease and property rent payments
shall be prorated on an actual calender day basis, with either
Buyer or Seller receiving credit for payments made, as an
adjustment to the Purchase Price, depending upon whether said
payments are made in advance or in arrears. (b) Federal
Highway Use Taxes paid on tractors sold to or assumed by Buyer
hereunder shall be prorated on an actual calender day basis,
with either Buyer or Seller receiving credit for payments made,
as an adjustment to the Purchase Price, depending upon whether
made in advance or in arrears.
1.11 Reimbursement for Certain Licenses. Notwithstanding
Section 1.1(f)(2) hereinabove, Buyer shall reimburse Seller for
the unexpired value (prorated on an actual calendar day basis)
of any tractor or trailer licenses purchased on or after June
30, 1995 and transferred to Buyer with tractors or trailers sold
to or assumed by Buyer hereunder.
2. REPRESENTATION AND WARRANTIES OF SELLER. Seller represents
and warrants and covenants to Buyer as follows:
2.1 Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and has all necessary corporate power to carry
on its business as now conducted and to own or lease and operate
its properties and is duly qualified to do business in all
jurisdictions in which the nature of its business or ownership
or leasing of property requires such a qualification or the
failure to so qualify would have a material and adverse effect
on the Assets, the Business or the financial prospects of the
Business.
2.2 Authorization; No violation. Seller has all necessary
corporate power to execute and deliver this Agreement and to
carry out its obligations hereunder, and the execution and
delivery of this Agreement and performance of the transactions
contemplated hereby have been duly authorized. This Agreement
has been duly executed by Seller of and constitutes the valid
and legally binding obligation of Seller, enforceable against
Seller in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors, rights in
general or general principles of equity. The execution and
delivery of this Agreement and the consummation of Seller's
obligations contemplated hereby will not conflict with or
constitute a violation of or default under any term or provision
of the Certificate of Incorporation or by-laws of Seller, or
conflict with, result in a breach , or violation of or
constitute a default under (i) any term or provision of any
mortgage, indenture, lease, agreement or instrument, permit,
concession, grant, franchise, license, or any judgment, order,
or decree binding on Seller or, (ii) any statute, law,
ordinance, rule or regulation applicable to Seller, the Business
or the Assets. Such execution, delivery and consummation will
not result in the creation of any lien, charge, mortgage,
encumbrance, or security interest upon the Business or the
Assets. Except for such consents, approvals, orders,
authorizations, or waivers that have been duly obtained and are
unconditional and such notices, registrations, declarations or
filings that have been given or made, and approval of the ICC,
no consent, approval, order or authorization of or registration
declaration or filing with, any person, entity or governmental
authority is required in connection with Seller's execution and
delivery of this Agreement or the consummation of Seller's
obligations contemplated herein, which requirement, if not met,
would have a material adverse effect on Buyer's operation of the
Business after the Closing Date.
2.3 Financial Solvency. After the Closing, the sum of the
Purchase Price and the liquidation value of the Excluded Assets,
including without limitation all deposits, credits and cash not
being conveyed to Buyer, are sufficient to pay Seller's
obligations to its unsecured creditors as of the Closing.
2.4 Absence of Changes. Since July 31, 1995, except as set
forth in Schedule 2.4 hereto: (a) Seller has not undergone
any material adverse change in condition (financial or
otherwise), properties, assets, liabilities, business or
operations; (b) Seller has not mortgaged, pledged or
subjected to any lien, lease, security interest or other charge
or encumbrance any of its properties or assets, tangible or
intangible that are material to the Business; (c) Seller
has not suffered any material damage, destruction or loss
(whether or not covered by insurance) that materially adversely
affects its condition (financial or otherwise), properties,
assets, business or operations; and (d) the Business has
been conducted in the ordinary course of business, and Seller
has complied in all material respects with all laws and
obligations applicable to the conduct of its business and used
reasonable efforts (including the reasonable exercise of its
business judgment) to keep intact its business organization,
retain employees, and to preserve the goodwill of Seller's
suppliers and customers.
2.5 Taxes. Except as set forth in Schedule 2.5, there are no
tax liens against any of the Assets, and there are no federal,
state, local or foreign taxes of any kind or nature (i) that are
accruing, accrued and unpaid, owed, owing or due but not yet
payable by Seller, or for which Seller is or may become liable,
and (ii) that could result in or constitute a lien or
encumbrance on the Assets subject to this Agreement, or could
result in a claim by any taxing authority against Buyer or any
of its properties, including the Assets to be acquired hereunder.
2.6 Title and Condition of Assets. (a) Seller has, and
on the Closing Date will transfer to Buyer, good and marketable
title to the Assets, free and clear of all mortgages, liens,
charges or other encumbrances, except for such imperfections of
title and encumbrances, if any, as are of record, properly
recorded in the appropriate offices or are not substantial in
character, amount or extent and which do not materially detract
from the value of, or materially interfere with the present or
prospective use of, such assets or otherwise materially impair
the operation of the Business. (b) The activities carried
on at the Crane Facility or the leased real estate in Cabell
County, WV are not in violation of, or in conflict with, any
applicable zoning regulation or ordinance. The lease related to
the real property referred to in Section 1.1(h)(l) is in good
standing, valid and effective in accordance with its respective
terms, and there is not under such lease any existing defaults,
or any events that, with notice or lapse of time or both, would
constitute a default. (c) All tangible personal property
included in the Assets, except for those Assets listed in
Schedule 2.6, are in good operating condition in all material
respects, normal wear and tear excepted, are suitable for the
purposes for which they are presently being used, perform in all
material respects in accordance with the specifications and
purposes for which they were designed to be used, and conform in
all material respects to applicable laws, rules and regulations.
2.7 Material Contracts. Schedule 2.7 hereto contains a
complete and correct list as of the date hereof of all material
agreements, leases, contracts, licenses and commitments related
to the Business or the Assets to which Seller is a party or by
which Seller or the Assets are bound as of the date hereof and
which are included in the definition of Assets hereunder,
including without limitation (a) sales agency, representative,
broker or distribution agreements; (b) agreements, orders or
commitments for the purchase of services exceeding $5,000; and
(c) other agreements or obligations which are material to the
Business or the Assets. Except as indicated on Schedule 2.7,
Seller has delivered or made available to Buyer complete and
correct copies of all such written agreements, together with all
amendments thereto. Such agreements are in full force and
effect, constitute the legal, valid and binding obligations of
Seller and the other parties thereto. There are no existing
material defaults by Seller under any material agreement listed
in Schedule 2.7 by Seller or any other party to such agreements
and no event, act or omission has occurred that (with or without
notice, lapse of time or the happening or occurrence of any
other event) would result in a default thereunder. No other
party to any such agreement has asserted the right, and no basis
exists for such assertion of any right, to renegotiate the terms
and conditions of any such agreement, and no loss of any such
agreement could reasonably be expected to create a material loss
or material adverse change in the financial condition or
prospects of the Business.
2.8 Intellectual Property. Except as set forth in Section
1.1(f)(5), there are no trade names, trademarks, trademark
applications, copyrights, copyright applications or other
proprietary rights, that are owned or licensed by Seller and
related to or used in the operation of the Business. Seller
owns or possesses adequate rights in all trade names,
trademarks, copyrights, processes, designs, formulae, trade
secrets, know-how and other intellectual property and
proprietary rights used in the operation of the Business. Upon
the consummation of the transactions contemplated by this
Agreement, Buyer shall have all of Seller's rights in such
aforesaid trade names, trademarks, copyrights, processes,
designs, formulae, trade secrets, know-how and other
intellectual property and proprietary rights used in the
operation of the Business. There are no pending or threatened
claims or litigation against Seller contesting its right to sell
or use any product, process, method, part or other materials.
No statute, law, rule, regulation, standard or code exists, is
pending or has been proposed, that would prevent or
substantially reduce revenues from, or render obsolete, the
services provided by Seller or that would otherwise materially
and adversely affect the operation of the Business and Seller
has not received notice of any of the foregoing. No other
person, firm, corporation, government or governmental agency is
infringing any trademark, copyright, trade secret or other
intellectual property right owned by Seller.
2.9 Litigation. Except as set forth in Schedule 2.9, there are
no judicial or administrative actions, suits, proceedings or
investigations pending or threatened against the Seller which
might materially interfere with any part of the Business as
currently conducted by Seller, or that question the validity of
this Agreement or any action taken or to be taken pursuant to or
in connection with the provisions of this Agreement. Except as
set forth in schedule 2.9, there are no outstanding judgments,
orders or decrees binding upon or adversely affecting the Assets
or the Business.
2.10 Compliance. The Business has been conducted and the Assets
operated in compliance in all material respects with all
applicable federal, state and local laws and ordinances,
together with all regulations and rules applicable thereto
(including without limitation all occupational health and safety
acts and environmental laws and regulations of all federal,
state and local governmental and regulatory bodies having
jurisdiction over Seller), and court orders and decrees, and
Seller has duly filed all reports required to be filed by it
with governmental authorities and has obtained all governmental
consents, approvals and authorizations, the failure of which to
obtain would have a material adverse effect on the operations,
financial conditions or prospects of the Business, and all such
consents, approvals and authorizations are in full force and
effect. The Business is not conducted under any restriction
imposed upon Seller but not imposed upon other persons, firms or
corporations conducting similar businesses or operating similar
assets for similar purposes by any zoning, environmental,
anti-pollution, health or other law, ordinance, or regulation.
2.11 Brokers and Finders. All negotiations relating to this
Agreement and the transactions contemplated hereby have been
carried on without the intervention of any person acting on
behalf of Seller in such manner as to give rise to any valid
claim against Buyer for any brokerage or finder's commission,
fee or similar compensation.
2.12 Pension and Other Employee Plans and Agreements. Except as
otherwise expressly agreed, or as Buyer may subsequently agree
with respect to any plan maintained by Buyer or any Related
Party (as hereinafter defined) or to which Buyer or any Related
Party contributes, the execution and delivery of this Agreement
by Seller and the consummation of the transactions contemplated
hereunder will not result in any current or future obligation or
liability (with respect to accrued benefits or otherwise) of
Buyer or any Related Party of Buyer to Seller or any affiliate
of Seller, or any of their successors or assigns, to any
employee or former employee, or any beneficiary of any employee
or former employees, of Seller or any affiliate of Seller, their
successors or assigns, or to the Internal Revenue Service, the
Department of Labor, the Pension Benefit Guaranty Corporation or
any other person in respect of any employee benefit plans
maintained by or for Seller or any affiliate of Seller or any
multi-employer plan to which Seller or any affiliate of Seller
contributes, is obligated to contribute or has any potential
liability with respect thereto. "Related Party" shall mean any
trade or business (whether or not incorporated) which is under
common control with Buyer within the meaning of Section 4001(b)
of the Employee Retirement Income Security Act of 1974, as
amended or Section 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended.
2.13 Labor Relations. Seller has complied in all material
respects with applicable laws, rules and regulations relating to
the employment of labor, including without limitation those
relating to wages, hours, unfair labor practices,
discrimination, and payment of social security and similar
taxes. Except as described in Schedule 2.13, there are no
complaints pending or threatened against Seller before the
National Labor Relations Board or any similar state or local
labor agency by or on behalf of any employee of Seller; there
are no representation questions, arbitration proceedings, labor
strikes, slow-downs or stoppages or other labor troubles pending
or threatened with respect to any employees of Seller. Except
as set forth in Schedule 2.13, no collective bargaining
agreement between Seller and any of the employees of Seller
engaged in the operation of the Business is in effect.
3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents
and warrants and covenants to Seller as follows:
3.1 Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of Delaware.
3.2 Authorization. Buyer has all necessary corporate power to
execute and deliver this Agreement and to carry out its
obligations hereunder. This Agreement has been duly executed by
Buyer and constitutes the valid and legally binding obligations
of Buyer, enforceable against Buyer in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights in general or general principles of equity.
The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not
conflict with or constitute a violation of or default under any
term or provision of the Certificate of Incorporation or by-laws
of Buyer. No consent, approval, order or authorization of or
registration, declaration or filing with, any governmental
authority is required in connection with the execution and
delivery of this Agreement or the consummation of the
transactions contemplated hereby by Buyer, other than such
approvals or filings that will have been obtained or made prior
to the Closing Date.
3.3 Brokers and Finders. All negotiations relating to this
Agreement and the transactions contemplated hereby have been
carried on without the intervention of any person acting on
behalf of Buyer in such manner as to give rise to any valid
claim against Seller for any brokerage or finder's commission,
fee or similar compensation.
3.4 Litigation. There are no judicial or administrative
actions, suits, proceedings or investigations pending which
question the validity of this Agreement or any action taken or
to be taken pursuant to or in connection with the provisions of
this Agreement by Buyer.
3.5 Funds. Buyer has the funds necessary to pay the Purchase
Price at Closing.
4. SURVIVAL AND INDEMNIFICATION.
4.1 Survival. The representations and warranties made in
Sections 2 and 3 shall survive the Closing for a period of one
(1) year, except that the representations and warranties made in
Section 2.5 shall survive the Closing for the period of the
applicable statute of limitations.
4.2 Indemnification. (a) Seller and Seller's Parent
Company (collectively the "Indemnitors") shall jointly and
severally indemnify Buyer and its directors, officers,
employees, shareholders, and agents serving as such after the
Closing at the request of Buyer (hereinafter referred to as
"Buyers Indemnified Persons"), against, and hold Buyer's
Indemnified Persons harmless from, at all times after the date
hereof, any and all loss, damage (including without limitation
punitive and consequential damages), liability, payment and
obligation, and all expenses (including without limitation
reasonable legal fees), incurred, suffered, sustained or
required to be paid, directly or indirectly, by or sought to be
imposed upon, Buyer's Indemnified Persons: (1)
resulting from or arising out of any breach of any of the
representations or warranties made by the Indemnitors in or
pursuant to this Agreement or in any agreement, document of
instrument executed and delivered pursuant hereto or in
connection with the closing of the transactions hereunder or any
breach of a covenant regarding such representations and
warranties; (2) resulting from or arising out of any
breach of any covenant made by the Indemnitors in or pursuant to
this Agreement, other than with respect of any liability,
payment or obligation that Buyer has assumed or for which Buyer
has agreed to be responsible; and (3) for any
liability, costs, payments, or obligations, including any civil
or criminal penalties, resulting from or arising out of any
clean-up, removal or remediation under or pursuant to any
federal, state or local law, rule, regulation, policy or common
law theory governing environmental or occupational health or
safety matters, or founded upon any private right of action or
other third party claim in respect of environmental or
occupational health or safety matters, on account of any real
property owned by or leased by Seller, provided, however, that
this indemnification shall not apply to any liability, costs,
payments, or obligations, including any civil or criminal
penalties, resulting from or arising out of any clean-up,
removal or remediation of a condition or matter that did not
exist prior to the Closing Date. (b) Buyer's Indemnified
Persons shall not be entitled to assert any claim for
indemnification in respect to a breach of any representation or
warranty until such time as all claims of Buyer's Indemnified
Persons for indemnification exceed $50,000 (the "Basket") in the
aggregate, at which time all claims of the Buyer's Indemnified
Persons for indemnification with respect to breaches of
representations and warranties in excess of the Basket may be
asserted; provided however that this limitation on claims shall
not apply to adjustments made to Purchase Price as provided in
this Agreement, which adjustments shall be paid by Seller
promptly, nor to any of the obligations of Seller enumerated in
Section 1.5(b) hereof. (c) Buyer's Indemnified Persons
shall give the Indemnitors written notice of any claim made
pursuant to Section 4.2(a) above. Any such claims made shall be
presented within one (1) year of the Closing or shall thereafter
be barred; provided, however, that claims presented pursuant to
Section 2.5 may be presented at any time, without limitation,
following the Closing.
5. EMPLOYEE MATTERS. Buyer shall have no liability or
obligation with respect to any employee of Seller by reason of
this Agreement or the purchase of the Assets.
6. CONFIDENTIALITY AND NON-COMPETE.
6.1 Business and Technical Information. Seller and Seller's
Parent Company agree to keep confidential any and all business
and technical information related to the Business and Assets,
including, but not limited to, sources of supply, markets,
marketing methods, customers, trade secrets, processes, designs,
intellectual property, and proprietary rights of Seller on the
date hereof developed by or for Seller. The provisions of this
Section 6.1 shall continue to apply for a period of five (5)
years after the Closing, but shall not apply to information that
(1) comes into the public domain other than through the actions
of Seller or Seller's Parent Company, (2) Seller or Seller's
Parent Company is legally obligated to disclose or (3) is
received by Seller or Seller's Parent Company subsequent to
Closing from a third party without obligation of confidentiality
or non-use.
6.2 Non-Compete. (a) Seller and Seller's Parent Company
agree that neither shall, without Buyer's prior written consent
for a period of five (5) years after Closing, engage directly or
indirectly in the business of a truckload carrier of munitions,
classes A and B explosives, articles designated sensitive by the
United States government, for the account of the United States
Department of Defense, and hazardous waste materials as defined
for the purposes of the Solid Waste Disposal Act, as amended by
the Resource Conversation and Recovery Act of 1976, as amended.
(b) Although restrictions contained in Section 6.2 hereof
are considered by the parties hereto to be fair and reasonable
in the circumstances, it is recognized that restrictions of the
nature contained in Section 6.2 may fail for technical reasons,
and accordingly if any of such restrictions shall be adjudged to
be void or unenforceable for whatever reason, but would be valid
if part of the wording thereof were deleted, or the period
thereof reduced or the area dealt with thereby reduced in scope,
the restrictions contained in Section 6.2 shall apply, at the
election of Buyer, with such modifications as may be necessary
to make them valid, effective and enforceable in the particular
jurisdiction in which such restrictions are adjudged to be void
or unenforceable. (c) If a violation of any covenant
contained in this Section 6.2 occurs or is threatened, Buyer
represents that it may be irreparably damaged by any breach of
any covenant contained in this Section 6.2 and that the remedy
of damages at law for any such breach may be inadequate, and
that Buyer, in addition to any other relief available to it, may
be entitled to temporary, preliminary or permanent injunctive
relief.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. The
obligations of Buyer under this Agreement are subject to the
fulfillment to the reasonable satisfaction of Buyer prior to or
at the Closing of each of the following conditions, any of which
may be waived in writing by Buyer:
7.1 Representations and Warranties. The representations and
warranties made by Seller in this Agreement (including all
exhibits and schedules hereto) or in any statement, list or
certificate furnished pursuant hereto, shall be true and correct
in all material respects when made and shall be true and correct
in all material respects at and as of the time of the Closing
except as specifically provided for herein.
7.2 Performance by Seller; Certificate. Seller shall have
performed and complied in all material respects with all
agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing, and
shall deliver to Buyer a certificate signed by an appropriate
officer of Seller dated the Closing Date, certifying to the
fulfillment of the foregoing.
7.3 Absence of Litigation. No judgment, order, or decree shall
have been entered against Seller, and no action or proceeding
shall have been instituted or threatened prior to or at the date
of Closing before any court or governmental body or authority
that could have a material adverse effect upon the Assets or the
operations, financial condition or prospects of the Business or
that seeks to restrain, enjoin or hinder, or that seeks material
damages on account of, the transactions contemplated hereby, the
result of which could enjoin or prohibit or make illegal or void
the consummation of such transactions or which could be
materially adverse to the Business or the Assets.
7.4 Approval of Proceedings: Documentation. All corporate and
other proceedings in connection with the transactions
contemplated by this Agreement, and all certificates, and other
documents delivered hereunder shall be reasonably satisfactory
in form and substance to Buyer and its counsel.
7.5 Consents. Seller shall have obtained and exhibited to
Buyer evidence, in form and substance reasonably satisfactory to
counsel to Buyer, all consents required to transfer the Assets.
7.6 No Change in Law. There shall have not been proposed or
enacted any statute, rule, regulation, policy or guideline, or
any change in any existing statute, rule, regulation, policy or
guideline, that prohibits or delays, or threatens to prohibit or
delay, the performance of the transactions contemplated by this
Agreement or any document delivered pursuant hereto, or that
changes, or threatens to change, in a materially adverse manner,
the operations, financial condition or prospects of the
Business..
7.7 Instruments of Transfer. Seller shall have duly executed
and delivered to Buyer the instruments of transfer required to
be delivered pursuant to Section 1.4(a) hereof'.
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The
obligations of Seller under this Agreement are subject to the
fulfillment to the reasonable satisfaction of Seller prior to or
at the Closing of each of the following conditions, any of which
may be waived in writing by Seller:
8.1 Representations and Warranties. The representations and
warranties made by Buyer in this Agreement shall be true and
correct in all material respects when made and shall be true and
correct in all material respects at and as of the time of
Closing except as specifically provided for herein.
8.2 Performance by Buyer; Certificate. Buyer shall have
performed and complied with all agreements and conditions
required by this Agreement to be performed or complied with by
it prior to or at the Closing, and shall deliver to Seller a
certificate signed by an appropriate officer of Buyer dated the
Closing Date, certifying to the fulfillment of the foregoing.
8.3 Absence of Litigation. No action or proceeding shall have
been instituted or threatened prior to or at the date of Closing
before any court or governmental body or authority pertaining to
the transactions contemplated hereby, the result of which could
enjoin or prohibit or make illegal or avoid the consummation of
such transactions and no judgment order, or decree shall have
been entered against Buyer enjoining or prohibiting such
transactions.
8.4 Approval of Proceedings; Documentation. All corporate and
other proceedings in connection with the transactions
contemplated by this Agreement and all opinions, certificates
and other documents delivered hereunder shall be reasonably
satisfactory in form and substance to Seller and its counsel.
8.5 No Change in Law. There shall have not been proposed or
enacted any statute, rule, regulation, policy or guideline, or
any change in any existing statute, rule, regulation, policy or
guideline, that prohibits or delays, or threatens to prohibit or
delay, the performance of the transactions contemplated by this
Agreement or any document delivered pursuant hereto.
8.6 Purchase Price. Buyer shall have delivered the Purchase
Price pursuant to Section 1.3(a).
9. INTERIM CONDUCT OF BUSINESS. From the date hereof to the
Closing, except as contemplated by this Agreement or the
schedules and exhibits hereto, or otherwise consented to by
Buyer in writing, Seller will: (a) carry on the Business in
the ordinary course in substantially the same manner as
heretofore and, to the extent consistent with such business, use
reasonable efforts to preserve intact the present business
organizations, keep available, if reasonably possible, the
services of the present employees, and preserve goodwill and
relationships with customers and suppliers of the Business, so
that they will all be available to Buyer after the Closing;
(b) maintain in all material respects all of the material
Assets in the same repair, order and condition in all material
respects except for depletion, depreciation, ordinary wear and
tear and damage by unavoidable casualty; (c) perform in all
material respects all obligations of Seller under licenses,
leases, agreements, contracts, and instruments relating to or
affecting the Business; (d) maintain the books of account
and records of Seller with respect to the Business and the
Assets in the ordinary course; (e) comply in all material
respects with all statutes, laws, ordinances rules and
regulations applicable to Seller in the conduct of the Business;
and (f) not enter into or assume any agreement, contract or
commitment of the character referred to in clauses (a) through
(c) of Section 2.7 hereof, except in the ordinary course of
business; (g) not take, or permit or suffer to be taken,
any action which is represented and warranted in Section 2.4 not
to have been since July 31, 1995.
10. POST-CLOSING COVENANTS.
10.1 Further Assurances. From and after the Closing Date, Buyer
and Seller agree to take all such further action and to execute
such other documents, instruments or certificates as may be
reasonably requested by the other party hereto in order to carry
out the transactions contemplated by this Agreement; provided,
however, that preparation and filing of any and all necessary
documentation for the transfer of intellectual property rights,
including but not limited to trade names, trademarks, service
marks and copyrights, will be the sole responsibility of Buyer;
provided, further, Seller will, at no cost to Buyer, cooperate
in providing all necessary information to prepare such
documentation and in signing all necessary documents to transfer
such property rights as requested and in assisting Buyer in
obtaining consents to the assignment of contracts not obtained
prior to the Closing Date and Seller will cooperate in providing
all necessary information and will execute and deliver to Buyer
all certificates, instruments, and agreements as may be
requested by Buyer or a title company engaged by Buyer for the
purpose of Buyer's obtaining title insurance on the real
property to be transferred to Buyer pursuant to this Agreement.
10.2 Cooperation. Seller will cooperate with Buyer and Buyer
will cooperate with Seller after the Closing in connection with
any matters relating to this Agreement, the transactions
contemplated hereby, any tax disputes under Section 2.5 and with
respect to the Assets. Without limiting the foregoing, each
party will permit reasonable access to any records or other
relevant documents in the other party's possession or control as
they relate solely to the Assets or the transactions
contemplated hereby.
10.3 Payments; Mail. If, after the Closing Date, Seller shall
receive any payment due Buyer on account of any Asset required
to be transferred to Buyer pursuant to this Agreement, or Buyer
shall receive any payment on account of any asset retained by
Seller pursuant to this Agreement, then Seller or Buyer, as the
case may be, shall, promptly upon receipt pay over to the other
party the proceeds of such payment. Seller agrees to deliver to
Buyer promptly upon receipt all mail it receives relating to the
Assets. Buyer agrees to deliver to Seller promptly upon receipt
all mail addressed to Seller or relating to assets or the
business retained by Seller.
11. MISCELLANEOUS PROVISIONS.
11.1 Entire Agreement. This Agreement, together with the
schedules and exhibits hereto and the agreements executed and
delivered as contemplated herein, constitute the entire
agreement between the parties hereto pertaining to the subject
matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions,
whether oral or written, of the parties, and there are no
warranties, representations or other agreements between the
parties in connection with the subject matter hereof except as
specifically set forth herein.
11.2 Amendment; Waiver. This Agreement may be amended by the
parties hereto at any time, but only by an instrument in writing
duly executed and delivered on behalf of each of the parties
hereto. No waiver of any term or condition of this Agreement
shall be effective unless in writing and signed by the party
making such waiver. A waiver of any breach of any of the terms
or conditions of this Agreement shall not in any way be
construed as a waiver of any subsequent or other breach, nor
shall the delay or failure by any party to exercise its rights
hereunder be deemed a waiver of such rights.
11.3 Headings. Section headings are not to be considered part
of this Agreement and are included solely for convenience and
are not intended to be full or accurate descriptions of the
contents thereof. References to Sections are to portions of
this Agreement unless the context requires otherwise.
11.4 Exhibits, etc. Exhibits, schedules and other documents
referred to in this Agreement are an integral part of this
Agreement. If and to the extent that any provision of any of
the exhibits hereto is inconsistent with or susceptible of a
difference construction that any provision of this Agreement,
the language of such exhibit shall govern the construction and
interpretation thereof.
11.5 No Third Party Beneficiary. This Agreement is not intended
to confer any right or benefit on any other person.
11.6 Assignment, Successors and Assigns. This Agreement may not
be assigned by Seller or Buyer without the prior written consent
of the other party; provided, however, that Buyer may, without
such consent, assign all or any portion of its rights to
purchase the Assets as set forth herein to one or more
wholly-owned subsidiaries of Buyer. All of the terms and
provisions of this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
transferees, successors and assigns.
11.7 Notices, etc. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if delivered or mailed, first-class
postage prepaid:
(a) If to Seller or Seller's Parent Company:
Attn: Chief Financial Officer Intrenet, Inc.
400 Teche Center Drive Suite 200 Milford, OH
45150
and a copy to:
David C. Worrell, Esq. Baker & Daniels
300 North Meridian St. Suite 2700
Indianapolis, IN 46204
(b) If to Buyer: Attn: Daryl Deel TRISM,
INC. P.O. Box 113 E. 7th Street
Joplin, Missouri 64802
and a copy to:
J. Michael May, Esq. TRISM, INC. 301
Commerce St., Suite 1101 Fort Worth, TX 76102
11.8 Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, each party will pay its own
fees, expenses, and disbursements and those of its counsel and
other advisors in the negotiation, preparation, execution,
delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
11.9 Severability. The provisions of this Agreement are
severable, and in the event that any one or more provisions are
deemed illegal or unenforceable, the remaining provisions shall
remain in full force and effect.
11.10 Public Announcements. Neither party will make any
press release or other announcement respecting this Agreement
without the consent of the other party, which consent shall not
be unreasonably withheld, unless a party refuses to consent and
the party desiring to make the release or other announcement is
advised by its counsel that the release or other announcement is
required to comply with any statute, law or regulation.
11.11 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.
11.12 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
TRISM, INC.
by: /s/James M. Revie Name: James M. Revie Title:
Chairman of the Board
C. I. Whitten Transfer Company
by: /s/ Jackson A. Baker Name: Jackson A. Baker
Title: Chairman of the Board
Intrenet, Inc.
by: /s/ Jackson A. Baker Name: Jackson A. Baker Title:
President and CEO Schedules
1.1(a) - The Used Tractors 1.1(b) - The Trailers 1.1(d) - The
QualComm Units 1.1(e) - Greene County, Indiana (Crane Facility)
1.1(f) - Other Miscellaneous Assets 1.1(g) - The Drivers
1.1(h)(1) - Cabell County, WV Lease 1.1(h)(2) - The
Assumed Lease Tractors 1.1(h)(3) - Tyson Corp. Rental
Agreement 1.1(i) - The New Volvo Tractors
1.3 - Calculation of Purchase Price and Allocation 1.5 -
Seller's Liabilities, Contracts, Agreements and Leases
to be Assumed by Buyer
2.4 - Changes in Financial Condition or Assets 2.5 -
Taxes 2.6 - Exceptions to Condition of Assets 2.7 -
Material Contracts 2.9 - Litigation 2.13 - Labor Relations