EXHIBIT 2.3
AGREEMENT AND PLAN OF REORGANIZATION
[Stock for Stock - Reverse Triangular Merger]
BETWEEN
Transit Group, Inc., a Florida corporation,
T.W. Transport, Inc., a Kentucky corporation,
and Timothy M. Weller, an individual resident of Kentucky
DATED: December 12, 1997
TABLE OF CONTENTS
1. DEFINITIONS.......................................................1
2. PLAN OF REORGANIZATION............................................3
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2.1 THE MERGER...............................................3
2.2 FRACTIONAL SHARES........................................4
2.3 EFFECTS OF THE MERGER....................................4
2.4 TAX-FREE REORGANIZATION..................................4
2.5 PURCHASE ACCOUNTING TREATMENT............................5
2.6 WAIVER OF DISSENTERS RIGHTS..............................5
2.7 CLOSING..................................................5
2.8 CLOSING OBLIGATIONS......................................5
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER.................6
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3.1 ORGANIZATION AND GOOD STANDING...........................6
3.2 AUTHORITY; NO CONFLICT...................................6
3.3 CAPITALIZATION...........................................7
3.4 FINANCIAL STATEMENTS.....................................7
3.5 BOOKS AND RECORDS........................................8
3.6 TITLE TO PROPERTIES; ENCUMBRANCES........................8
3*7 CONDITION AND SUFFICIENCY OF ASSETS......................8
3.8 ACCOUNTS RECEIVABLE......................................8
3.9 NO UNDISCLOSED LIABILITIES...............................9
3.10 TAXES....................................................9
3.11 NO MATERIAL ADVERSE CHANGE...............................9
3.12 EMPLOYEE BENEFITS........................................9
3.13 COMPLIANCE..............................................10
3.14 LITIGATION..............................................10
3.15 ABSENCE OF CHANGES......................................11
3.16 CONTRACTS; NO DEFAULTS..................................11
3.17 INSURANCE...............................................12
3.18 ENVIRONMENTAL MATTERS...................................13
3.19 EMPLOYEES; INDEPENDENT CONTRACTORS......................13
3.20 LABOR RELATIONS; COMPLIANCE.............................14
3.21 INTELLECTUAL PROPERTY...................................14
3.22 RELATIONSHIPS WITH RELATED PERSONS......................15
3.23 BROKERS OR FINDERS......................................15
3.24 DISCLOSURE..............................................15
3.25 SUBSIDIARIES............................................15
4. REPRESENTATIONS AND WARRANTIES OF TGI............................15
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4.1 ORGANIZATION AND GOOD STANDING..........................16
4.2 AUTHORITY; NO CONFLICT..................................16
4.3 CERTAIN PROCEEDINGS.....................................16
4.4 BROKERS OR FINDERS......................................16
4.5 SEC FILINGS.............................................16
4.6 TGI STOCK...............................................17
4.7 DISCLOSURE..............................................17
5. COVENANTS OF SHAREHOLDER AND TGI.................................17
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5.1 PAYMENT OF INDEBTEDNESS BY RELATED PERSONS..............17
5.2 LOAN TO SHAREHOLDER.....................................17
5.3 SEC REPORTING...........................................17
5.4 DUE DILIGENCE...........................................17
5.5 RELEASE OF GUARANTORS...................................17
6. CONDITIONS PRECEDENT TO TGI'S OBLIGATION TO CLOSE................18
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6.1 ACCURACY OF REPRESENTATIONS.............................18
6.2 SHAREHOLDER'S PERFORMANCE...............................18
6.3 CONSENTS................................................18
6.4 ADDITIONAL DOCUMENTS....................................18
6.5 NO PROCEEDINGS..........................................18
6.6 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS.....19
6.7 DUE DILIGENCE...........................................19
6.8 CONCURRENT CLOSING......................................19
6.9 BOARD APPROVAL..........................................19
7. CONDITIONS PRECEDENT TO SHAREHOLDER'S OBLIGATION TO CLOSE........19
---------------------------------------------------------
7.1 ACCURACY OF REPRESENTATIONS.............................19
7.2 TGI'S PERFORMANCE.......................................19
7.3 CONSENTS................................................19
7.4 ADDITIONAL DOCUMENTS....................................20
7.5 NO PROCEEDINGS.........................,................20
7.6 CONCURRENT CLOSING......................................20
7.7 NO MATERIAL ADVERSE CHANGE..............................20
8. TERMINATION......................................................20
8.1 TERMINATION EVENTS......................................20
8.2 EFFECT OF TERMINATION...................................21
9. INDEMNIFICATION; REMEDIES........................................21
9.1 SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY
KNOWLEDGE...............................................21
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9.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SHAREHOLDER
.......................................................21
9.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY TGI...........22
9.4 TIME LIMITATIONS........................................22
9.5 ESCROW..................................................22
9.6 PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS.......23
9.7 PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS.............24
9.8 REMEDY..................................................24
10. GENERAL PROVISIONS...............................................24
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10.1 EXPENSES................................................24
10.2 PUBLIC ANNOUNCEMENTS....................................24
10.3 CONFIDENTIALITY.........................................25
10.4 NOTICES.................................................25
10.5 JURISDICTION; SERVICE OF PROCESS........................26
10.6 FURTHER ASSURANCES......................................26
10.7 WAIVER..................................................26
10.8 ENTIRE AGREEMENT AND MODIFICATION.......................26
10.9 COMPANY DISCLOSURE LETTER...............................26
10.10 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS......27
10.11 SEVERABILITY............................................27
10.12 SECTION HEADINGS, CONSTRUCTION..........................27
10.13 TIME OF ESSENCE.........................................27
10.14 GOVERNING LAW...........................................27
10.15 COUNTERPARTS............................................27
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Agreement and Plan of Reorganization
This Agreement and Plan of Reorganization ("Agreement") is made as of
December 12, 1997, by Transit Group, Inc., a Florida corporation ("TGI"), T.W.
Transport, Inc., a Kentucky corporation (the "Company"), and Timothy M. Weller,
an individual resident of Kentucky ("Shareholder").
RECITALS
A. The parties intend that, subject to the terms and conditions set
forth herein, a new corporation that will be organized under Kentucky law as a
wholly owned subsidiary of TGI ("Newco") will merge with and into the Company in
a reverse triangular merger (the "Merger"), with the Company to be the surviving
corporation of the Merger, all pursuant to the terms and conditions of this
Agreement, the Articles of Merger substantially in the form of Exhibit A hereto
(the "Articles of Merger") and the applicable provisions of the laws of
Kentucky.
B. Upon the effectiveness of the Merger, all the outstanding capital
stock of the Company will be converted into capital stock of TGI, in the manner
and on the basis determined herein and as provided in the Articles of Merger.
C. The Merger is intended to be treated as a "purchase" for accounting
purposes and a tax-free reorganization pursuant to the provisions of Section
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the "Code"), by
virtue of the provisions of Section 368(a)(2)(D) of the Code.
AGREEMENT
For and in consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"Agreement" --this Agreement and Plan of Reorganization together with
all Schedules and Exhibits hereto.
"Balance Sheet"--as defined in Section 3.4.
"Closing"--as defined in Section 2.7.
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"Closing Date"--the date and time as of which the Closing actually
takes place.
"Company"--collectively the Company identified in the Recitals to this
Agreement together with each subsidiary of same.
"Company Disclosure Letter"--the disclosure letter delivered by the
Shareholder to TGI concurrently with the execution and delivery of this
Agreement.
"Contemplated Transactions"--all of the transactions contemplated by
this Agreement, including:
(a) the merger of Newco and the Company;
(b) the execution, delivery, and performance of the Employment
Agreement, Noncompetition Agreement, and the Subscription Agreement;
(c) the loan by TGI to the Shareholder; and
(d) the performance by TGI, the Company and the Shareholder of
their respective covenants and obligations under this Agreement.
"Damages"--as defined in Section 9.2.
"Effective Time" --the effective time of the Merger as defined in
Section 2.1.
"Employment Agreement" --as defined in Section 2.8(a)(iv).
"Environmental Law"--any law or regulation that requires or relates to:
(a) advising appropriate authorities, employees, and the
public of intended or actual releases of pollutants or hazardous substances or
materials, violations of discharge limits, or other prohibitions and of the
commencements of activities, such as resource extraction or construction, that
could have significant impact on the environment;
(b) preventing or reducing to acceptable levels the release of
pollutants or hazardous substances or materials into the environment;
(c) reducing to acceptable levels the risks inherent in the
transportation of hazardous substances, pollutants, oil, or other potentially
harmful substances;
(d) cleaning up pollutants that have been released, preventing
the threat of release, or paying the costs of such clean up or prevention; or
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(e) making responsible parties pay private parties, or groups
of them, for damages done to their health or the environment, or permitting
self-appointed representatives of the public interest to recover for injuries
done to public assets.
"ERISA"--the Employee Retirement Income Security Act of 1974, as
amended, and regulations and rules issued pursuant to that act or any successor
law.
"Escrow Agreement" -- as defined in Section 2.8(a)(vii).
"Hazardous Materials"--any waste or other substance that is listed,
defined, designated, or classified as, or otherwise determined to be, hazardous,
radioactive, or toxic or a pollutant or a contaminant under or pursuant to any
Environmental Law, including petroleum and all derivatives thereof or synthetic
substitutes therefor and asbestos or asbestos-containing materials.
"Merger"--as defined in the Recitals hereto.
"Noncompetition Agreement"--as defined in Section 2.8(a)(iii).
"Occupational Safety and Health Law"--any law or regulation designed to
provide safe and healthful working conditions and to reduce occupational safety
and health hazards, and any program, whether governmental or private (including
those promulgated or sponsored by industry associations and insurance
companies), designed to provide safe and healthful working conditions.
"Securities Act"--the Securities Act of 1933 or any successor law, and
regulations and rules issued pursuant to that act or any successor law.
"TGI"--as defined in the first paragraph of this Agreement.
2. PLAN OF REORGANIZATION.
2.1 THE MERGER. Subject to the terms and conditions of this Agreement,
prior to the Closing Date, TGI will incorporate and organize Newco and will
cause the Board of Directors and shareholders of Newco to approve the Merger and
perform all of the duties of Newco set forth in this Agreement. Subject to the
terms and conditions of this Agreement, the Articles of Merger will be filed
with the Secretary of State of the State of Kentucky on the Closing Date. The
date and time that the Articles of Merger is filed with the Kentucky Secretary
of State and the Merger thereby becomes effective will be referred to in this
Agreement as the "Effective Time." Subject to the terms and conditions of this
Agreement and the Articles of Merger, Newco will be merged with and into the
Company in a statutory merger pursuant to the Articles of Merger and in
accordance with applicable provisions of Kentucky law as follows:
(a) Conversion of Company Common Stock. The shares of common
stock of the Company, no par value (the "Company Common Stock"), that are issued
and outstanding immediately prior to the Effective Time, will, by virtue of the
Merger and at the Effective Time and without further action on the part of any
holder thereof, be converted into that number of shares of
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fully paid and nonassessable common stock of TGI, $.01 par value per share ("TGI
Common Stock"), determined by dividing US One Million Dollars ($1,000,000) by
$6.625, for a total of 150,943 shares of TGI Common Stock.
(b) Conversion of Newco Shares. Each share of Newco Common
Stock, par value $0.01 ("Newco Common Stock"), that is issued and outstanding
immediately prior to the Effective Time, will, by virtue of the Merger and
without further action on the part of the sole shareholder of Newco, be
converted into and become one share of common stock of the Company, as the
surviving corporation, that is to be issued and outstanding immediately after
the Effective Time, which shall be the only share of Company Common Stock that
is issued and outstanding immediately after the Effective Time.
2.2 FRACTIONAL SHARES. No fractional shares of TGI Common Stock will be
issued in connection with the Merger.
2.3 EFFECTS OF THE MERGER. At the Effective Time: (a) the separate
existence of Newco will cease and Newco will be merged with and into the Company
and the Company will be the surviving corporation pursuant to the terms of the
Articles of Merger; (b) the Articles of Incorporation and Bylaws of Newco will
be the Articles of Incorporation and Bylaws of the surviving corporation; (c)
each share of Newco Common Stock outstanding immediately prior to the Effective
Time will be converted as provided in Section 2.1(b) above; (d) the directors of
Newco in effect at the Effective Time will be the directors of the Company as
the surviving corporation, and the officers of Newco will be the officers of the
Company as the surviving corporation; (e) each share of Company Common Stock
outstanding immediately prior to the Effective Time will be converted as
provided in Section 2.1(a); and (f) the Merger will, at and after the Effective
Time, have all of the effects provided by applicable law.
2.4 TAX-FREE REORGANIZATION. The parties intend to adopt this Agreement
as a tax-free plan of reorganization and to consummate the Merger in accordance
with the provisions of Section 368(a)(1)(A) of the Code. The parties believe
that the value of the TGI Common Stock to be received in the Merger is equal to
the value of the Company Common Stock to be surrendered in exchange therefor.
The TGI Common Stock issued in the Merger will be issued solely in exchange for
the Company Common Stock, and no other transaction other than the Merger
represents, provides for or is intended to be an adjustment to, the
consideration paid for the Company Common Stock. TGI represents now, and as of
the Closing, that it presently intends to continue the Company's historic
business or use a significant portion of the Company's business assets in a
business. The Shareholder acknowledges that it has no present plan or intention
to sell, exchange or dispose of more than 50% of the shares of TGI Common Stock
received in the Merger. The provisions and representations contained or referred
to in this Section 2.4 shall survive until the expiration of the applicable
statute of limitations. The Shareholder acknowledges that he has received his
own independent tax advice and counsel with respect to the Merger and the
transactions contemplated herein and is not relying on representations made by
TGI or its counsel, accountants or advisors with respect to such tax matters.
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2.5 PURCHASE ACCOUNTING TREATMENT. The Parties intend that the Merger
be treated as a "purchase" for accounting purposes.
2.6 WAIVER OF DISSENTERS RIGHTS. The Shareholder hereby waives any and
all rights he has to dissent from the Merger under Kentucky law.
2.7 CLOSING. The consummation of the purchase and sale provided for in
this Agreement (the "Closing") will take place at the offices of TGI's counsel,
Womble Carlyle Sandridge & Rice, PLLC, located at Suite 700, 1275 Peachtree
Street, N.E., Atlanta, Georgia 30309, at 10:00 a.m. (local time) on December 31,
1997, or at such time and place as the parties may agree.
2.8 CLOSING OBLIGATIONS. At the Closing:
(a) The Shareholder will deliver to TGI:
(i) certificates representing his shares of Company
Common Stock, duly endorsed for transfer to TGI (or
accompanied by duly executed stock powers);
(ii) releases and resignations from the officers and
directors of the Company duly executed by such parties;
(iii) a noncompetition agreement in the form of
Exhibit "B," executed by the Shareholder (the "Noncompetition
Agreement");
(iv) an employment agreement in the form of Exhibit
"C," executed by the Shareholder (the "Employment Agreement");
(v) a subscription agreement for the shares of TGI
Common Stock to be issued in the Merger in the form of Exhibit
"D" (the "Subscription Agreement");
(vi) a promissory note in the amount of $175,000 in
the form of Exhibit "E" executed by the Shareholder and
secured by a pledge of the TGI Common Stock issued to the
Shareholder in connection herewith (the "Shareholder's
Promissory Note") in consideration of a loan by TGI to the
Shareholder in the amount of $175,000; and
(vii) an escrow agreement in the form of Exhibit "F,"
executed by the Shareholder (the "Escrow Agreement").
(b) TGI will deliver to the Shareholder:
(i) a share certificate representing the TGI Common
Stock issued in the Merger in the name of the Shareholder;
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(ii) the Employment Agreement; and
(iii) the face amount of the Shareholder's Promissory
Note in cash.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
The Shareholder represents and warrants to TGI as follows:
3.1 ORGANIZATION AND GOOD STANDING.
(a) Part 3.1 of the Company Disclosure Letter contains a
statement of the Company's jurisdiction of incorporation, a list of all other
jurisdictions in which it is authorized to do business, and its capitalization
(including the identity of each stockholder and the number of shares held by
each). The Company is duly organized, validly existing, and in good standing
under the laws of its jurisdiction of incorporation, with full corporate power
and authority to conduct its business as it is now being conducted, to own or
use the properties and assets that it purports to own or use, and to perform all
its obligations under its contracts. The Company is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
state or other jurisdiction in which either the ownership or use of the
properties owned or used by it, or the nature of the activities conducted by it,
requires such qualification.
(b) The Shareholder has delivered to TGI copies of the
Articles of Incorporation and Bylaws of the Company, as currently in effect.
3.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of the Shareholder, enforceable against him in accordance with its
terms. Upon the execution and delivery by the Shareholder of the Noncompetition
Agreement, the Employment Agreement, the Shareholder's Promissory Note and the
Subscription Agreement (collectively, the "Shareholder's Closing Documents"),
the Shareholder's Closing Documents will constitute the legal, valid, and
binding obligations of the Shareholder, enforceable against him in accordance
with their respective terms. The Shareholder has the absolute and unrestricted
right, power, authority, and capacity to execute and deliver this Agreement and
the Shareholder's Closing Documents and to perform his obligations under this
Agreement and the Shareholder's Closing Documents.
(b) Neither the execution and delivery of this Agreement nor
the consummation or performance of any of the Contemplated Transactions will,
directly or indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a
violation of (A) any provision of the Articles of Incorporation or
Bylaws of the Company; or (B) any resolution adopted by the board of
directors or the stockholders of the Company; or (C) any of the terms
or
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requirements of, or give any governmental body the right to revoke,
withdraw, suspend, cancel, terminate, or modify, any permit or
authorization that is held by the Company or that otherwise relates to
the business of, or any of the assets owned or used by, the Company; or
(D) any provision of, or give any person the right to declare a default
or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any contract to
which the Company is bound; or
(ii) result in the imposition or creation of any
lien, claim or encumbrance upon or with respect to any of the assets
owned or used by the Company.
(c) Except as set forth in Part 3.2 of the Company Disclosure
Letter, neither the Shareholder nor the Company is or will be required to give
any notice to or obtain any consent from any person in connection with the
execution and delivery of this Agreement or the consummation or performance of
any of the Contemplated Transactions.
3.3 CAPITALIZATION. The authorized equity securities of the Company
consist of two thousand (2,000) shares of common stock, no par value per share,
of which 2,000 shares are issued and outstanding and constitute the "Shares."
The Shareholder is and will be on the Closing Date the record and beneficial
owner and holder of the Shares, free and clear of all liens, claims or
encumbrances. With the exception of the Shares (which are owned by the
Shareholder), there are no other outstanding equity securities or other
securities of the Company. Other than standard legends with respect to
securities matters, no legend or other reference to any purported encumbrance
appears upon any certificate representing equity securities of the Company. All
of the outstanding equity securities of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. There are no contracts
relating to the issuance, sale, or transfer of any equity securities or other
securities of the Company. None of the outstanding equity securities or other
securities of the Company was issued in violation of the Securities Act or any
other law or regulation. The Company does not own, nor does it have any contract
to acquire, any equity securities or other securities of any person (other than
the Company) or any direct or indirect equity or ownership interest in any other
business.
3.4 FINANCIAL STATEMENTS. The Shareholder has delivered to TGI: (a)
unaudited balance sheets of the Company as at December 31, 1995 and 1996, and
the related unaudited statements of income, changes in stockholders' equity, and
cash flow for the fiscal years then ended, and (b) a balance sheet of the
Company as at September 30, 1997 (the "Balance Sheet") and an income statement
for the nine (9) month period then ended. Such financial statements and the
notes thereto fairly present the financial condition and the results of
operations, changes in stockholders' equity, and cash flow of the Company as at
the respective dates of and for the periods referred to in such financial
statements, all in accordance with sound accounting principles, consistently
applied throughout the periods involved. At Closing, the Company will have at
least the same amount of cash as reflected on the Balance Sheet.
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3.5 BOOKS AND RECORDS. The books of account, minute books, stock record
books, and other records of the Company, all of which have been made available
to TGI, are complete and correct in all material respects and have been
maintained in accordance with applicable law. The minute books of the Company
contain accurate and complete records of all meetings of, and corporate actions
taken by, the stockholders, the Boards of Directors, and committees of the
Boards of Directors of the Company, and no meeting of any such stockholders,
Board of Directors, or committee has been held for which minutes have not been
prepared and are not contained in such minute books.
3.6 TITLE TO PROPERTIES; ENCUMBRANCES. The Company owns good and
marketable title to the properties and assets located in the facilities owned or
operated by the Company or reflected as owned in the books and records of the
Company, including all of the properties and assets reflected in the Balance
Sheet, and all of the properties and assets purchased or otherwise acquired by
the Company since the date of the Balance Sheet. All material properties and
assets of the Company are listed on Part 3.6(a) of the Company Disclosure Letter
and, except as set forth on Part 3.6(b) of the Company Disclosure Letter, are
free and clear of all liens, claims or encumbrances and are not, to the best of
the Shareholder's knowledge, in the case of real property, subject to any use
restrictions, exceptions, variances, reservations, or limitations of any nature
except, with respect to all such properties and assets, (a) mortgages or
security interests identified on the Balance Sheet as securing specified
liabilities or obligations, with respect to which no default (or event that,
with notice or lapse of time or both, would constitute a default) exists, and
(b) zoning laws and other land use restrictions that do not impair the present
or anticipated use of the property subject thereto. All buildings, plants, and
structures owned by the Company lie wholly within the boundaries of the real
property owned by the Company and do not encroach upon the property of, or
otherwise conflict with the property rights of, any other person.
3.7 CONDITION AND SUFFICIENCY OF ASSETS. Except as set forth on Part
3.7 of the Company Disclosure Letter, the buildings, plants, structures, and
equipment owned or leased by the Company are, to the best of the Shareholder's
knowledge, structurally sound, are not in need of extraordinary repair, and are
adequate for the uses to which they are being put, and none of such buildings,
plants, structures, or equipment is in need of maintenance or repairs except for
ordinary, routine maintenance and repairs that are not material in nature or
cost. The building, plants, structures, and equipment owned or leased by the
Company are sufficient for the continued conduct of the Company's businesses
after the Closing if conducted in substantially the same manner as conducted
prior to the Closing.
3.8 ACCOUNTS RECEIVABLE. All accounts receivable of the Company as of
the Closing Date represent or will represent valid obligations arising from
sales actually made or services actually performed in the ordinary course of
business. Unless paid prior to the Closing Date, except as set forth on Part 3.8
of the Company Disclosure Letter, the accounts receivable are or will be as of
the Closing Date current and collectible net of the respective reserves shown on
the Balance Sheet. There is no contest, claim, or right of set-off relating to
the amount or validity of such accounts receivable.
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3.9 NO UNDISCLOSED LIABILITIES. The Company has no material liabilities
or obligations of any nature (whether known or unknown and whether absolute,
accrued, contingent, or otherwise) except for liabilities or obligations (i)
reflected or reserved against in the Balance Sheet; (ii) current liabilities not
in excess of $25,000, individually or in the aggregate, incurred in the ordinary
course of business since the date thereof; or (iii) specifically disclosed
herein or in Part 3.9 of the Company Disclosure Letter.
3.10 TAXES.
(a) The Company has filed or caused to be filed on a timely
basis all tax returns that are or were required to be filed by or with respect
to it. The Company has paid, or made provision for the payment of, all taxes
that have or may have become due for all periods prior to Closing.
(b) Except as set forth on Part 3.10 of the Company Disclosure
Letter, no United States, federal or state income tax returns of the Company
have been audited by the IRS or relevant state tax authorities. Neither the
Shareholder nor the Company has given or been requested to give waivers or
extensions (or is or would be subject to a waiver or extension given by any
other person) of any statute of limitations relating to the payment of taxes of
the Company.
(c) The charges, accruals, and reserves with respect to taxes
on the books of the Company are adequate and are at least equal to the Company's
liability for taxes. There exists no proposed tax assessment against the Company
except as disclosed in the Balance Sheet. All taxes that the Company is or was
required to withhold or collect have been duly withheld or collected and, to the
extent required, have been paid to the proper governmental body or other person.
(d) The Shareholder has delivered to TGI true and accurate
copies of all federal and state tax returns for the Company for each of the
three years ended December 31, 1994, 1995 and 1996. All tax returns filed by the
Company are true, correct, and complete. The Company is not, and within the
five-year period preceding the Closing Date has not been, an "S" corporation.
3.11 NO MATERIAL ADVERSE CHANGE. Except as set forth on Part 3.11 of
the Company Disclosure Letter, since the date of the Balance Sheet, there has
not been any material adverse change in the business, operations, properties,
prospects, assets, or condition of the Company, and the Shareholder knows of no
event which has occurred or circumstance which exists that may result in such a
material adverse change.
3.12 EMPLOYEE BENEFITS. Part 3.12 of the Company Disclosure Letter
contains a list of all pension, retirement, disability, medical, dental or other
health plans, life insurance or other death benefit plans, profit sharing,
deferred compensation agreements, stock, option, bonus or other incentive plans,
vacation, sick, holiday or other paid leave plans, severance plans or other
similar employee benefit plans maintained by the Company (the "Plans"),
including, without limitation, all "employee benefit plans" as defined in
Section 3(3) of ERISA. Plans as defined hereunder shall not
9
include such plans maintained by Laxus Group, from whom the Company leases
certain of its employees, and with respect to which the Company has no
liability. All contributions due from the Company with respect to any of the
Plans have been made or accrued on the Company's financial statements, and no
further contributions will be due or will have accrued thereunder as of the
Closing. Each of the Plans, and its operation and administration, is, in all
material respects, in compliance with all applicable, federal, state, local and
other governmental laws and ordinances, orders, rules and regulations, including
the requirements of ERISA and the Internal Revenue Code. All such Plans that are
"employee pension benefit plans" (as defined in Section 3(2) of ERISA) which are
intended to qualify under I.R.C. Section 401(a)(8) have received favorable
determination letters that such plans satisfy all qualification requirements. In
addition, the Company has not been a participant in any "prohibited
transaction," within the meaning of Section 406 of ERISA, with respect to any
employee pension benefit plan (as defined in Section 3(2) of ERISA) which the
Company sponsors as employer or in which the Company participates as an
employer, which was not otherwise exempt pursuant to Section 408 of ERISA
(including any individual exemption granted under Section 408(a) of ERISA), or
which could result in an excise tax.
3.13 COMPLIANCE.
(a) The Company is and at all times has conducted its business
and the ownership and use of its assets in substantial compliance with all
applicable laws.
(b) Part 3.13 of the Company Disclosure Letter contains a
complete and accurate list of each permit or governmental consent or
authorization that is held by the Company or that otherwise relates to the
business of, or to any of the assets owned or used by, the Company. Each such
permit or governmental consent or authorization is valid and in full force and
effect and constitutes all of the governmental authorizations necessary to
permit the Company to lawfully conduct and operate its business in the manner
currently conducted.
3.14 LITIGATION.
(a) Except as set forth in Part 3.14 of the Company Disclosure
Letter, there is no pending or to the knowledge of the Shareholder, threatened
action, arbitration, audit, hearing, investigation, litigation, or suit (whether
civil, criminal, administrative, investigative, or informal) commenced, brought,
conducted, or heard by or before, or otherwise involving, any governmental body
or arbitrator (i) that has been commenced by or against the Company or that
otherwise relates to or may affect the business of, or any of the assets owned
or used by, the Company; or (ii) that challenges, or that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of the
Contemplated Transactions.
(b) There is no order or court decision to which the Company,
the Shareholder or, to the knowledge of the Shareholder, any director or officer
of the Company, or any of the assets owned or used by the Company, is subject.
10
3.15 ABSENCE OF CHANGES. Since the date of the Balance Sheet, the
Company has conducted its business only in the ordinary course and there has not
been any:
(a) change in the Company's authorized or issued capital
stock; grant of any stock option or right to purchase shares of capital stock of
the Company; issuance of any security convertible into such capital stock; grant
of any purchase, redemption or stock retirement rights, or any acquisition by
the Company of any shares of its capital stock; or declaration or payment of any
dividend or other distribution or payment in respect of shares of capital stock;
(b) amendment to the Articles of Incorporation or Bylaws of
the Company;
(c) payment or increase by the Company of any bonuses,
salaries, or other compensation to any stockholder, director, officer, or
employee (except normal payments and increases in the ordinary course of
business consistent with past practices), or entry into any employment,
severance, or similar contract with any director, officer, or employee;
(d) adoption of, or increase in the payments to or benefits
under, any profit sharing, bonus, deferred compensation, savings, insurance,
pension, retirement, or other employee benefit plan for or with any employees of
the Company;
(e) damage to or destruction or loss of any material asset or
property of the Company, whether or not covered by insurance;
(f) entry into, termination of, or receipt of notice of
termination of any material contract or any contract or transaction involving a
total remaining commitment by or to the Company of at least $25,000 other than
the entry into contracts with customers for the provision of transportation
services by the Company in the ordinary course of business;
(g) sale, lease, or other disposition of any material asset or
property of the Company or mortgage, pledge, or imposition of any lien or other
encumbrance on any material asset or property of the Company;
(h) material change in the accounting methods used by the
Company; or
(i) agreement, whether oral or written, by the Company to do
any of the foregoing.
3.16 CONTRACTS; NO DEFAULTS.
(a) Part 3.16 of the Company Disclosure Letter contains a
complete and accurate list (except the items referenced in Section 3.16(a)(i)
below need not be included in such list), and the Shareholder has delivered to
TGI true and complete copies, of:
11
(i) each contract that involves performance of
services or delivery of goods or materials by or to the Company of an
amount or value in excess of $25,000;
(ii) each lease, license, installment and conditional
sale agreement, and other contract affecting the ownership of, leasing
of, title to, use of, or any leasehold or other interest in, any real
or personal property;
(iii) each collective bargaining agreement and other
contract to or with any labor union or other employee representative or
a group of employees;
(iv) each joint venture, partnership, and other
contract involving a sharing of profits, losses, costs, or liabilities
by the Company with any other person;
(v) each contract containing covenants that in any
way purport to restrict the business activity of the Company;
(vi) each power of attorney that is currently
effective and outstanding; and
(vii) each written warranty, guaranty, and or other
similar undertaking by the Company.
(b) Each contract identified or required to be identified in
Part 3.16 of the Company Disclosure Letter is in full force and effect and is
valid and enforceable in accordance with its terms. The Company is, and at all
times has been, in compliance with all material applicable terms and
requirements of each contract. To the best of the Shareholder's knowledge, each
third party to any contract with the Company is, and at all times has been, in
compliance with all material applicable terms and requirements of such contract.
The Company has not given nor received notice from any other person regarding
any actual, alleged, possible, or potential violation or breach of, or default
under, any contract, and no material default or event of default has occurred
thereunder.
3.17 INSURANCE.
(a) The Shareholder has delivered to TGI true and complete
copies of all insurance policies to which the Company is a party or under which
the Company is or has been covered at any time within the two (2) years
preceding the date of this Agreement, and true and complete copies of all
pending applications for policies of insurance.
(b) Except as set forth on Part 3.17 of the Company Disclosure
Letter, all policies to which the Company is a party or that provide coverage to
either the Shareholder, the Company, or any director or officer of the Company
(i) are valid, outstanding, and enforceable; (ii) in the Shareholder's judgment,
are issued by an insurer that is financially sound and reputable; (iii) provide
adequate insurance coverage, in the Shareholder's judgment, for the assets and
the operations of the Company for all risks normally insured against in the
Company's industry; (iv) will not be
12
terminated or subject to termination as a result of the consummation of the
Contemplated Transactions; and (v) except for the amounts indicated on Part 3.17
of the Company Disclosure Letter, do not provide for any retrospective premium
adjustment or other experienced-based liability on the part of the Company.
(c) Except as set forth on Part 3.17 of the Company's
Disclosure Letter, neither the Shareholder nor the Company has received (i) any
refusal of coverage or any notice that a defense will be afforded with
reservation of rights, or (ii) any notice of cancellation or any other
indication that any insurance policy is no longer in full force or effect or
will not be renewed or that the issuer of any policy is not willing or able to
perform its obligations thereunder.
(d) The Company has paid all premiums due, and have otherwise
performed all of its obligations, under each policy to which the Company is a
party or that provides coverage to the Company. The Company has given notice to
the insurer of all claims that may be insured thereby.
3.18 ENVIRONMENTAL MATTERS.
(a) Except as set forth on Part 3.18 of the Company Disclosure
Letter, the Company is, and at all times has been, in substantial compliance
with, and has not been and is not in violation of or liable under, any
Environmental Law. The Shareholder has no basis to expect, nor has the
Shareholder or the Company received, any actual or threatened order, notice, or
other communication from (i) any governmental body or private citizen, or (ii)
the current or prior owner or operator of any facilities owned or leased by the
Company, of any actual or potential violation or failure to comply with any
Environmental Law.
(b) Except as set forth on Part 3.18 of the Company Disclosure
Letter (i) there are no Hazardous Materials present on or at the facilities
owned or leased by the Company, except such Hazardous Materials as are commonly
used in the operation of a transportation business and which are maintained and
used by the Company in compliance with applicable law; or (ii) to the knowledge
of the Shareholder, at any adjoining property, including any Hazardous Materials
contained in barrels, above or underground storage tanks, landfills, land
deposits, dumps or equipment, or incorporated into any structure therein or
thereon.
(c) The Shareholder has delivered to TGI true and complete
copies and results of any reports, studies, analyses, tests, or monitoring
possessed or initiated by the Shareholder or the Company pertaining to Hazardous
Materials in, on, or under the facilities owned or leased by the Company.
3.19 EMPLOYEES; INDEPENDENT CONTRACTORS.
(a) To the knowledge of the Shareholder, no employee or
independent contractor of the Company is a party to, or is otherwise bound by,
any agreement or arrangement, including any
13
confidentiality, noncompetition, or proprietary rights agreement, between such
employee and any other person ("Proprietary Rights Agreement") that in any way
adversely affects or will affect (i) the performance of his duties to the
Company, or (ii) the ability of the Company to conduct its business.
(b) All persons rendering services to the Company have been
properly characterized and treated as either employees or independent
contractors, and the Company has not received notice of, nor does the
Shareholder have any reason to believe that, such treatment will be challenged
by the IRS or otherwise.
3.20 LABOR RELATIONS; COMPLIANCE.
(a) The Company has not been nor is it now a party to any
collective bargaining or other labor contract. There is not presently pending or
existing, and there is not, to the Shareholder's knowledge, threatened, (a) any
strike, slowdown, picketing, work stoppage, or employee grievance process, (b)
any proceeding against or affecting the Company relating to the alleged
violation of any applicable law pertaining to labor relations or employment
matters, including any charge or complaint filed by an employee or union with
the National Labor Relations Board, the Equal Employment Opportunity Commission,
or any comparable governmental body, organizational activity, or other labor or
employment dispute against or affecting the Company, or (c) any application for
certification of a collective bargaining agent. There is no lockout of any
employees by the Company, and no such action is contemplated by the Company. The
Company has substantially complied in all respects with the legal requirements
relating to employment, equal employment opportunity, nondiscrimination,
immigration, wages, hours, benefits, collective bargaining, the payment of
social security and similar taxes, occupational safety and health, and plant
closing.
(b) The Company is, and at all times has been, in substantial
compliance with, and has not been and is not in violation of or liable under,
any Occupational Safety and Health Law. The Shareholder has no basis to expect,
nor has the Shareholder or the Company received, any actual or threatened order,
notice, or other communication from any person of any actual or potential
violation or failure to comply with any Occupational Safety and Health Law.
3.21 INTELLECTUAL PROPERTY.
(a) Intellectual Property Assets--The term "Intellectual
Property Assets" includes:
(i) the Company name, all fictional business names,
trade names, registered and unregistered trademarks, service marks, and
applications (collectively, "Marks");
(ii) all patents, patent applications, and inventions
and discoveries that may be patentable (collectively, "Patents");
14
(iii) all copyrights in both published works and
unpublished works (collectively, "Copyrights"); and
(iv) all know-how, trade secrets, confidential
information, customer lists, software, technical information, data,
process technology, plans, drawings, and blue prints (collectively,
"Trade Secrets"), owned, used, or licensed by the Company.
(b) The Company owns all right, title, and interest in and to
each of the Intellectual Property Assets, free and clear of all liens, security
interests, charges, encumbrances, equities, and other adverse claims, and has
the right to use without payment to a third party all of the Intellectual
Property Assets.
3.22 RELATIONSHIPS WITH RELATED PERSONS. Except as set forth on Part
3.22 of the Disclosure Letter, no Shareholder or any related person or affiliate
of the Shareholder or of the Company has, or has had, any interest in any
property used in the Company's business. The Shareholder nor any related person
or affiliate of the Shareholder or of the Company is, or has owned, directly or
indirectly, an equity interest or any other financial or profit interest in, an
entity that has (i) had business dealings or a material financial interest in
any transaction with the Company; or (ii) engaged in competition with the
Company with respect to any line of the products or services of the Company. The
Shareholder nor any related person or affiliate of the Shareholder or of the
Company is a party to any contract with the Company.
3.23 BROKERS OR FINDERS. Neither the Company, the Shareholder or their
respective agents have incurred any obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions or other
similar payment in connection with this Agreement.
3.24 DISCLOSURE. No representation or warranty of the Shareholder in
this Agreement and no statement in the Company Disclosure Letter omits to state
a material fact necessary to make the statements herein or therein, in light of
the circumstances in which they were made, not misleading. There is no fact
known to the Shareholder that has specific application to the Shareholder or the
Company (other than general economic or industry conditions) and that materially
adversely affects or, as far as the Shareholder can reasonably foresee,
materially threatens, the assets, business, prospects, financial condition, or
results of operations of the Company that has not been set forth in this
Agreement or the Company Disclosure Letter.
3.25 SUBSIDIARIES. The Company has no subsidiaries.
4. REPRESENTATIONS AND WARRANTIES OF TGI
TGI has delivered to the Shareholder herewith TGI's Disclosure Letter.
TGI represents and warrants to the Shareholder as follows:
15
4.1 ORGANIZATION AND GOOD STANDING. TGI is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida.
4.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of TGI, enforceable against TGI in accordance with its terms. Upon
the execution and delivery by TGI of the Employment Agreement, the Employment
Agreement will constitute the legal, valid and binding obligation of TGI,
enforceable in accordance with its terms. TGI has the absolute and unrestricted
right, power, and authority to execute and deliver this Agreement and the
Employment Agreement and to perform its obligations hereunder and thereunder.
(b) Neither the execution and delivery of this Agreement by
TGI nor the consummation or performance of any of the Contemplated Transactions
by TGI will contravene, conflict with, result in a violation of or give any
person the right to prevent, delay, or otherwise interfere with any of the
Contemplated Transactions pursuant to:
(i) any provision of TGI's Articles of
Incorporation or Bylaws;
(ii) any resolution adopted by the board of
directors or the stockholders of TGI;
(iii) any legal requirement or order to which TGI may
be subject; or
(iv) any contract to which TGI is a party or by which
TGI may be bound.
(c) TGI is not and will not be required to give any notice to
or obtain any consent from any person in connection with the execution and
delivery of this Agreement or the consummation or performance of any of the
Contemplated Transactions.
4.3 CERTAIN PROCEEDINGS. There is no pending proceeding that has been
commenced against TGI and that challenges, or may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of the Contemplated
Transactions.
4.4 BROKERS OR FINDERS. Except as set forth in Schedule 4.5, TGI and
its officers and agents have incurred no obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions or other
similar payment in connection with this Agreement.
4.5 SEC FILINGS. TGI has filed all reports required to be filed prior
to the date hereof under the Securities Exchange Act of 1934, as amended. All
such filings complied in all material respects with applicable law, and no such
filing contained a material misstatement or omission on the date of such filing.
Since their respective filing dates, no event has occurred of which TGI has
knowledge which would result in TGI's being required to amend any such reports.
16
4.6 TGI STOCK. Upon consummation of the Merger and fulfillment of the
conditions set forth herein, the shares of TGI Common Stock to be issued to the
Shareholder in connection with the Merger will be fully paid, duly authorized,
validly issued and non-assessable. The delivery by TGI of the TGI Common Stock
to the Shareholder will transfer and convey to the Shareholder valid title to
such TGI Common Stock, free and clear of all liens, pledges, encumbrances and
claims of any kind, except restrictions referred to in this Agreement and under
applicable securities laws. All voting rights of TGI are vested exclusively in
the TGI Common Stock.
4.7 DISCLOSURE. No representation or warranty of TGI in this Agreement
or in the TGI Disclosure Letter contains a material misstatement or omits a
material fact necessary to make the statements herein or therein not misleading.
5. COVENANTS OF SHAREHOLDER AND TGI
5.1 PAYMENT OF INDEBTEDNESS BY RELATED PERSONS. Except as expressly
provided in this Agreement, the Shareholder will cause all indebtedness owed to
the Company by the Shareholder or any related person of the Shareholder to be
paid in full prior to Closing.
5.2 LOAN TO SHAREHOLDER. TGI agrees to deliver to the Shareholder on
the Closing Date, in exchange for, and in accordance with the terms and
conditions of, the Shareholder's Promissory Note in the form of Exhibit "E",
which shall be secured by Shareholder's pledge of the Escrow Shares as provided
in Section 9.5 hereof, the sum of US One Hundred Seventy-Five Thousand Dollars
($175,000). The Shareholder's Promissory Note shall be non-recourse to the
extent that the maturity date of the Shareholder's Promissory Note the per share
closing trade price of the TGI Common Stock, as reported in the Wall Street
Journal is less than Six and 625/1000 Dollars ($6.625) per share. The parties
acknowledge that the loan described herein is not intended to serve as
additional merger consideration and is intended to be repaid in cash in
accordance with its terms.
5.3 SEC REPORTING. TGI agrees to file all reports required under the
Securities Exchange Act of 1934, as amended, and, at the expense of the
Shareholder, to take such other steps as necessary to allow the Shareholder to
avail himself of the resale provisions of Rule 144.
5.4 DUE DILIGENCE. The Company agrees that TGI may, prior to the
Closing Date, through its representatives, make such investigation of the
properties, books and records of the Company and of its financial and legal
condition as TGI may deem necessary or advisable in order to familiarize itself
with the Company. TGI agrees that it shall conduct its investigation in such a
manner as to minimize disruption to the Company's business.
5.5 RELEASE OF GUARANTORS. TGI, the Company and the Shareholders will
work together in good faith to obtain the release prior to the Closing Date of
any personal guarantees provided by the Shareholder to a third party with
respect to any debt or obligation of the Company.
17
In the event such release has not been obtained prior to the Closing, TGI agrees
to obtain such release thereafter within thirty (30) days following the receipt
of all necessary information related thereto from the Shareholder. Until such
time as all such Shareholders guarantees have been fully released or the
underlying obligations fully satisfied, TGI will cause the Company to perform
all obligations thereunder and will fully indemnify the Shareholder against any
loss, claim or payment made with respect thereto.
6. CONDITIONS PRECEDENT TO TGI'S OBLIGATION TO CLOSE
TGI's obligation to consummate the Merger and to take the other actions
required to be taken by TGI at the Closing is subject to the satisfaction, at or
prior to the Closing, of each of the following conditions (any of which may be
waived by TGI, in whole or in part):
6.1 ACCURACY OF REPRESENTATIONS. All of the Shareholder's
representations and warranties in this Agreement must have been accurate in all
respects as of the date of this Agreement, and must be accurate in all respects
as of the Closing Date as if made on the Closing Date, without giving effect to
any supplement to the Company Disclosure Letter. TGI acknowledges that the
Company Disclosure Letter may be updated as of the Closing Date, but such update
must be satisfactory to TGI in its sole discretion.
6.2 SHAREHOLDER'S PERFORMANCE. All of the covenants and obligations
that the Shareholder is required to perform or to comply with pursuant to this
Agreement at or prior to the Closing must have been duly performed and complied
with in all respects.
6.3 CONSENTS. Each of the consents identified in Part 3.2 of the
Company Disclosure Letter must have been obtained and must be in full force and
effect.
6.4 ADDITIONAL DOCUMENTS. Each of the following documents must have
been delivered to TGI:
(a) an opinion of counsel to the Company and the Shareholder,
dated the Closing Date, in form acceptable to TGI; and
(b) a certificate of the Shareholder (i) evidencing the
accuracy of any of the Shareholder's representations and warranties; (ii)
evidencing the performance by the Shareholder of, or the compliance by the
Shareholder with, any covenant or obligation required to be performed or
complied with by the Shareholder; (iii) evidencing the satisfaction of any
condition referred to in this Section 6; and (iv) otherwise facilitating the
consummation or performance of any of the Contemplated Transactions.
6.5 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced or threatened against TGI or the Shareholder or the Company,
or against any person affiliated with TGI or the Shareholder or the Company, any
proceeding (a) involving any challenge
18
to, or seeking damages or other relief in connection with, any of the
Contemplated Transactions, or (b) that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with any of the Contemplated
Transactions.
6.6 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS. There must not
have been made or threatened by any person any claim asserting that such person
(a) is the holder or the beneficial owner of, or has the right to acquire or to
obtain beneficial ownership of, any stock of, or any other voting, equity, or
ownership interest in, the Company, or (b) is entitled to all or any portion of
the Merger consideration provided for herein.
6.7 DUE DILIGENCE. TGI shall have completed its investigation of the
Company's assets, business and financial condition and shall, in its sole
discretion exercised in good faith, be satisfied with the results thereof.
6.8 CONCURRENT CLOSING. The transactions contemplated by the Agreement
and Plan of Reorganization dated December 12, 1997, by and between TGI and
Rainbow Trucking Services, Inc. and the Agreement and Plan of Reorganization
dated December 12, 1997, by and between TGI and Hawk's Enterprises, Inc. shall
have been consummated on or before the Closing Date.
6.9 BOARD APPROVAL. The Board of Directors of TGI shall have approved
the Merger.
7. CONDITIONS PRECEDENT TO SHAREHOLDER'S OBLIGATION TO CLOSE
The Shareholder's and the Company's obligation to consummate the Merger
and to take the other actions required to be taken by the Shareholder and the
Company at the Closing is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be waived by the
Shareholder, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS. All of TGI's representations and
warranties in this Agreement must have been accurate in all respects as of the
date of this Agreement and must be accurate in all respects as of the Closing
Date as if made on the Closing Date, without giving effect to any supplement to
the TGI Disclosure Letter.
7.2 TGI'S PERFORMANCE. All of the covenants and obligations that TGI is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been performed and complied with in all respects.
7.3 CONSENTS. Each of the consents identified in Part 3.2 of the
Company Disclosure Letter must have been obtained and must be in full force and
effect.
19
7.4 ADDITIONAL DOCUMENTS. TGI must have caused the following documents
to be delivered to the Shareholder:
(a) an opinion of Womble Carlyle Sandridge & Rice, PLLC, dated
the Closing Date, in form acceptable to the Shareholder; and
(b) a certificate of the officers of TGI (i) evidencing the
accuracy of any representation or warranty of TGI; (ii) evidencing the
performance by TGI of, or the compliance by TGI with, any covenant or obligation
required to be performed or complied with by TGI; (iii) evidencing the
satisfaction of any condition referred to in this Section 7; and (iv) otherwise
facilitating the consummation of any of the Contemplated Transactions.
7.5 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced or threatened against TGI or the Shareholder or the Company,
or against any person affiliated with TGI or the Shareholder or the Company, any
proceeding (a) involving any challenge to, or seeking damages or other relief in
connection with, any of the Contemplated Transactions, or (b) that may have the
effect of preventing, delaying, making illegal, or otherwise interfering with
any of the Contemplated Transactions.
7.6 CONCURRENT CLOSING. The transactions contemplated by the Agreement
and Plan of Reorganization dated December 12, 1997, by and between TGI and
Rainbow Trucking Services, Inc. and the Agreement and Plan of Reorganization
dated December 12, 1997, by and between TGI and Hawk's Enterprises, Inc. shall
have been consummated on or before the Closing Date.
7.7 NO MATERIAL ADVERSE CHANGE. There shall not have been any material
adverse change in the business of TGI.
8. TERMINATION
8.1 TERMINATION EVENTS. This Agreement may, by notice given prior to or
at the Closing, be terminated:
(a) by either TGI or the Shareholder if a material breach of
any provision of this Agreement has been committed by the other party and such
breach has not been waived;
(b) (i) by TGI if any of the conditions in Section 6 has not
been satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of TGI to comply with its
obligations under this Agreement) and TGI has not waived such condition on or
before the Closing Date; or (ii) by the Shareholder, if any of the conditions in
Section 7 has not been satisfied of the Closing Date or if satisfaction of such
a condition is or becomes impossible (other than through the failure of the
Shareholder to comply with
20
their obligations under this Agreement) and the Shareholder has not waived such
condition on or before the Closing Date;
(c) by mutual consent of TGI and the Shareholder; or
(d) by either TGI or the Shareholder if the Closing has not
occurred (other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on or
before December 31, 1997, or such later date as the parties may agree upon.
8.2 EFFECT OF TERMINATION. Each party's right of termination under
Section 8.1 is in addition to any other rights it may have under this Agreement
or otherwise. If this Agreement is terminated pursuant to Section 8.1, all
further obligations of the parties under this Agreement will terminate, except
that the obligations in Sections 10.1 and 10.3 will survive.
9. INDEMNIFICATION; REMEDIES
9.1 SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. All
representations, warranties, covenants, and obligations in this Agreement, the
Company Disclosure Letter, the supplements to the Company Disclosure Letter, the
TGI Disclosure Letter, the supplements to the TGI Disclosure Letter and any
other certificate or document delivered pursuant to this Agreement will survive
the Closing. The right to indemnification, paymentof Damages (as defined below)
or other remedy based on such representations, warranties, covenants, and
obligations will not be affected by any investigation conducted at any time,
whether before or after the execution and delivery of this Agreement or the
Closing Date, with respect to the accuracy or inaccuracy of or compliance with,
any such representation, warranty, covenant, or obligation.
9.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SHAREHOLDER. Subject to
the limitations set forth below, the Shareholder will indemnify and hold
harmless TGI, the Company, and their respective representatives, stockholders,
controlling persons, and affiliates (collectively, the "Indemnified Persons")
for, and will pay to the Indemnified Persons the amount of, any loss, liability,
claim, damage (including incidental and consequential damages), expense
(including costs of investigation and defense and reasonable attorneys' fees) or
diminution of value, whether or not involving a third-party claim (collectively,
"Damages"), arising, directly or indirectly, from or in connection with:
(a) any breach of any representation or warranty made by the
Shareholder in this Agreement, the Company Disclosure Letter, the supplements to
the Company Disclosure Letter, or any other certificate or document delivered by
the Shareholder pursuant to this Agreement;
(b) any breach by the Shareholder of any covenant or
obligation of the Shareholder or the Company in this Agreement;
21
(c) any material liability not otherwise disclosed to TGI
herein or in the Company Disclosure Letter and any supplement thereto for
product shipped or manufactured by, or any services provided by, the Company
prior to the Closing Date; or
(d) any claim by any person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by any such person with the Shareholder or the Company
(or any person acting on their behalf) in connection with any of the
Contemplated Transactions.
Notwithstanding anything to the contrary in this Agreement,
the Shareholder's liability hereunder to TGI and to Indemnified Persons shall
not exceed the value of the Escrow Shares (as defined below), as determined from
time to time at the time a claim is made hereunder.
9.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY TGI. TGI will indemnify
and hold harmless the Shareholder, and will pay to the Shareholder the amount of
any Damages arising, directly or indirectly, from or in connection with (a) any
breach of any representation or warranty made by TGI in this Agreement, the TGI
Disclosure Letter, any supplement to the TGI Disclosure Letter, any Schedule to
this Agreement or in any certificate or document delivered by TGI pursuant to
this Agreement, (b) any breach by TGI of any covenant or obligation of TGI in
this Agreement, or (c) any claim by any person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by such person with TGI (or any person acting on its
behalf) in connection with any of the Contemplated Transactions.
9.4 TIME LIMITATIONS. If the Closing occurs, the Shareholder will have
no liability (for indemnification or otherwise) with respect to any
representation or warranty other than those in Sections 3.3, 3.10, 3.12, 3.18
and 3.19, unless on or before the third (3rd) anniversary of the Closing Date
TGI notifies the Shareholder of a claim specifying the factual basis of that
claim in reasonable detail to the extent then known by TGI. A claim with respect
to Sections 3.3, 3.10, 3.12, 3.18 or 3.19, or a claim for indemnification or
reimbursement not based upon any representation or warranty or any covenant or
obligation to be performed and complied with prior to the Closing Date, may be
made at any time. If the Closing occurs, TGI will have no liability (for
indemnification or otherwise) with respect to any representation or warranty
other than those in Section 4.6, unless on or before the third (3rd) anniversary
of the Closing Date, the Shareholder notifies TGI of a claim specifying the
factual basis of that claim in reasonable detail to the extent then known by the
Shareholder. A claim with respect to Section 4.6, or a claim for indemnification
or reimbursement not based upon any representation or warranty or any covenant
or obligation to be performed and complied with prior to the Closing Date, may
be made at any time.
9.5 ESCROW. At the Closing, the Shareholder will deposit Twenty-Six
Thousand Four Hundred Fifteen (26,415) shares of TGI Common Stock issued to the
Shareholder pursuant to Section 2.1 hereof (the "Escrow Shares") with a bank or
trust company located within the State of Georgia which will act as an escrow
agent (the "Escrow Agent"), who will hold the Escrow Shares
22
in escrow as collateral for the payment in full of the Shareholder's Promissory
Note delivered by the Shareholder in accordance with Section 2.8(a)(vi) of this
Agreement. After the first (1st) anniversary of the Closing Date, the
Shareholder shall have the right to direct the Escrow Agent to sell the Escrow
Shares; provided that (i) the resulting sales proceeds equal at least $6.625 per
share; and (ii) eighty percent (80%) of the proceeds from any such sale shall
continue to be held by the Escrow Agent as collateral for the Shareholder's
Promissory Note in replacement of the Escrow Shares. The Escrow Shares (or such
portion as then remaining in escrow) will be released to the Shareholder as
provided in the Escrow Agreement upon satisfaction of the Shareholder's
Promissory Note. The Escrow Shares will serve as collateral for the
Shareholder's Promissory Note as set forth in the Escrow Agreement.
9.6 PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS.
(a) Promptly after receipt by an Indemnified Person (which
term shall include the Shareholder for purposes of this Section 9.6) of notice
of the commencement of any proceeding against it, such Indemnified Person will,
if a claim is to be made against an indemnifying party under such Section, give
notice to the indemnifying party of the commencement of such claim, but the
failure to notify the indemnifying party will not relieve the indemnifying party
of any liability that it may have to any Indemnified Person, except to the
extent that the indemnifying party demonstrates that the defense of such action
is prejudiced by the Indemnified Person's failure to give such notice.
(b) If any proceeding referred to in Section 9.6(a) is brought
against an Indemnified Person and it gives notice to the indemnifying party of
the commencement of such proceeding, the indemnifying party will, unless the
claim involves taxes, be entitled to participate in such proceeding and, to the
extent that it wishes (unless (i) the indemnifying party is also a party to such
proceeding and the Indemnified Person determines in good faith that joint
representation would be inappropriate, or (ii) the indemnifying party fails to
provide reasonable assurance to the Indemnified Person of its financial capacity
to defend such proceeding and provide indemnification with respect to such
proceeding), to assume the defense of such proceeding with counsel satisfactory
to the Indemnified Person and, after notice from the indemnifying party to the
Indemnified Person of its election to assume the defense of such proceeding, the
indemnifying party will not, as long as it diligently conducts such defense, be
liable to the Indemnified Person under this Section 9 for any fees of other
counsel or any other expenses with respect to the defense of such proceeding, in
each case subsequently incurred by the Indemnified Person in connection with the
defense of such proceeding, other than reasonable costs of investigation. If the
indemnifying party assumes the defense of a proceeding, (i) it will be
conclusively established for purposes of this Agreement that the claims made in
that proceeding are within the scope of and subject to indemnification; (ii) no
compromise or settlement of such claims may be effected by the indemnifying
party without the Indemnified Person's consent unless (A) there is no finding or
admission of any violation of applicable laws or any violation of the rights of
any person and no effect on any other claims that may be made against the
Indemnified Person, and (B) the sole relief provided is monetary damages that
are paid in full by the indemnifying party; and (iii) the Indemnified Person
will have no liability with respect to any compromise or settlement of such
claims effected without its consent (which may
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not be unreasonably withheld). If notice is given to an indemnifying party of
the commencement of any proceeding and the indemnifying party does not, within
ten (10) days after such notice is given, give written notice to the Indemnified
Person of its election to assume the defense of such proceeding or specifically
deny all liability and responsibility therefor, including the basis for such
denial, the indemnifying party will be bound by any determination made in such
proceeding or any compromise or settlement effected by the Indemnified Person,
reasonably and in good faith. In the event that the Shareholder denies liability
hereunder as provided above, and the parties are required to litigate or
arbitrate such denial, the prevailing party in such action shall also be
entitled to recover its attorneys' fees and cost of collection or defense, as
appropriate.
(c) Notwithstanding the foregoing, if an Indemnified Person
determines in good faith that there is a reasonable probability that a
proceeding may adversely affect it or its affiliates other than as a result of
monetary damages for which it would be entitled to indemnification under this
Agreement, the Indemnified Person may, by notice to the indemnifying party,
assume the exclusive right to defend, compromise, or settle such proceeding, but
the indemnifying party will not be bound by any determination of a proceeding so
defended or any compromise or settlement effected without its consent (which may
not be unreasonably withheld).
9.7 PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A claim for
indemnification for any matter not involving a third-party claim may be asserted
by notice to the party from whom indemnification is sought.
9.8 REMEDY. The sole and exclusive remedy of TGI against the
Shareholder for any liability arising under this Agreement or the Shareholder's
Closing Documents (except for the Employment Agreement, the Non-Competition
Agreement, Escrow Agreement and Subscription Agreement) is the indemnification
contained in Section 9.2 hereinabove. TGI acknowledges that the dollar amount of
any claim made under the Escrow Agreement is subject to the limitations
contained in Section 9.2 hereof.
10. GENERAL PROVISIONS
10.1 EXPENSES. Each party to this Agreement will bear its respective
expenses incurred in connection with the preparation, execution, and performance
of this Agreement and the Contemplated Transactions, including all fees and
expenses of agents, representatives, counsel, and accountants.
10.2 PUBLIC ANNOUNCEMENTS. Any public announcement or similar publicity
with respect to this Agreement or the Contemplated Transactions will be issued
at such time and in such manner as the parties hereto shall mutually agree,
provided that TGI shall be entitled to make such announcements with regard
hereto as may be required by securities laws and regulations, provided that TGI
will provide the Shareholder with a copy of the first announcement regarding
this transaction in advance of the release thereof. Unless consented to by TGI
in advance or required by applicable law, prior to the Closing the Shareholder
shall, and shall cause the Company to, keep this
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Agreement strictly confidential and may not make any disclosure of this
Agreement to any person. The Shareholder and TGI will consult with each other
concerning the means by which the Company's employees, customers, and suppliers
and others having dealings with the Company will be informed of the Contemplated
Transactions, and TGI will have the right to be present for any such
communication.
10.3 CONFIDENTIALITY. Between the date of this Agreement and the
Closing Date, TGI and the Shareholder will maintain in confidence, and will
cause the directors, officers, employees, agents, and advisors of TGI and the
Company to maintain in confidence, any information received from the other
party, or from anyone on behalf of the other party, in connection with this
Agreement or the Contemplated Transactions, unless (a) such information is
already known to such party or to others not bound by a duty of confidentiality
or such information becomes publicly available through no fault of such party,
(b) the use of such information is necessary or appropriate in making any filing
or obtaining any consent or approval required for the consummation of the
Contemplated Transactions, or (c) the furnishing or use of such information is
required by or necessary or appropriate in connection with legal proceedings. If
the Contemplated Transactions are not consummated, each party will return or
destroy as much of such written information as the other party may reasonably
request. The parties acknowledge that they have previously executed a
Confidentiality Agreement and agree that all documents received by them from any
other party prior to the date hereof shall be and remain subject to such prior
Confidentiality Agreement.
10.4 NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Shareholder: Mr. Timothy M. Weller
1900 Landing Road
Prospect, Kentucky 40059
with a copy to: Gary L. Stage, Esq.
Stoll, Keenon & Park, LLP
Suite 1000
201 East Main Street
Lexington, Kentucky 40507
25
TGI: Transit Group, Inc.
Overlook III
2859 Paces Ferry Road
Suite 1740
Atlanta, Georgia 30339
Attention: Philip A. Belyew, President
Facsimile No.: (770) 444-0246
with a copy to: G. Donald Johnson, Esq.
Womble Carlyle Sandridge & Rice, PLLC
1275 Peachtree Street, N.E., Suite 700
Atlanta, Georgia 30309
Facsimile No.: (404) 888-7490
10.5 JURISDICTION; SERVICE OF PROCESS. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the State
of Georgia, County of Cobb, or, if it has or can acquire jurisdiction, in the
United States District Court for the Northern District of Georgia, and each of
the parties consents to the non-exclusive jurisdiction of such courts (and of
the appropriate appellate courts) in any such action or proceeding and waives
any objection to venue laid therein.
10.6 FURTHER ASSURANCES. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
10.7 WAIVER. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by any
party in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege.
10.8 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the party to be charged with the amendment.
10.9 COMPANY DISCLOSURE LETTER. The disclosures in the Company
Disclosure Letter, and those in any supplement thereto, relate only to the
representations and warranties in the Section of the Agreement to which they
expressly refer. In the event of any inconsistency between the statements in the
body of this Agreement and those in the Company Disclosure Letter (other than
26
an exception expressly set forth as such in the Company Disclosure Letter with
respect to a specifically identified representation or warranty), the statements
in the body of this Agreement will control.
10.10 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. Neither party
may assign any of its rights under this Agreement without the prior consent of
the other parties. Subject to the preceding sentence, this Agreement will apply
to, be binding in all respects upon, and inure to the benefit of the successors
and permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their successors and assigns.
10.11 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
10.12 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
10.13 TIME OF ESSENCE. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
10.14 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Kentucky without regard to conflicts of laws principles.
10.15 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
[EXECUTION SET FORTH ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
TGI:
TRANSIT GROUP, INC.
BY: /s/ Philip A. Belyew
PHILIP A. BELYEW, President
THE SHAREHOLDER:
/s/ Timothy Weller
TIMOTHY WELLER
THE "COMPANY":
T.W. TRANSPORT, INC.
BY: /s/ Timothy M. Weller
TIMOTHY M. WELLER, President
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