EXHIBIT 2.1
August 14, 2002
Mr. Anthony T. Castor, III
Chief Executive Officer
The Morgan Group, Inc.
2746 Old U.S. 20 West
Elkhart, IN 46514-1351
RE: Letter Agreement for Bennett Truck Transport, LLC (or related
entities) to Purchase Assets of the Manufactured Housing
Transportation Division of Morgan Drive Away, Inc.
Dear Mr. Castor:
This document constitutes an agreement (the "Agreement") by and among
Morgan Drive Away, Inc., an Indiana corporation, and its sole shareholder, The
Morgan Group, Inc. (referred to collectively as the "Sellers" and/or "Morgan"),
and Bennett Truck Transport, LLC ("Purchaser" and/or "Bennett").
Sellers desire to sell and Purchaser desires to purchase substantially all
of the assets of Morgan's manufactured housing transportation business (the
"Business") on the terms and subject to the conditions set forth herein.
1.
SALE AND PURCHASE OF ASSETS
(a) Purchased Assets. For the consideration hereinafter provided, and
subject to the terms and provisions of this Agreement, Sellers agree to (and do
hereby as of the Closing (as hereinafter defined)) sell, convey, transfer,
assign and deliver to Purchaser on the Closing Date (as hereinafter defined) all
of their respective rights in and to the following assets used or held for use
by such Seller in connection with the Business to the extent such rights therein
and thereto as of the Closing Date are transferable (collectively, the
"Assets"):
(1) all fixtures, furniture, apparatus, instruments, equipment,
customer lists, customer rate books, accounts, "title certificates,"
driver qualification files, supplies, offices, terminals and all other
business property located at those terminal locations specified on
Exhibit "A" hereto and all "agency offices" used in connection
therewith; provided, however, that the Assets shall not include any
fixtures, furniture, apparatus, instruments, equipment, supplies,
offices or other personal property located at Morgan's headquarters in
Elkhart, Indiana;
(2) to the extent assignable, all authorizations, permits,
"license plates," truck "legalization" and other licenses necessary to
own and operate the Business and its facilities;
(3) all contractual rights, including, without limitation, all
leases and/or independent contractor and/or driver agreements for
trucks, "toters" or other vehicles (including, without limitation
those agreements that Morgan has negotiated to obtain from Weststar
Systems, Inc., through its agreement with Kermit Wolff ("Wolff")), all
agency and contractor agreements, terminal agreements, all customer
contracts and agreements, all other written agreements, guarantees and
warranties, and all applicable supply and service agreements, all of
which are specifically set forth in Exhibit "B" (collectively, the
"Assigned Agreements"); provided, however, that the Assigned
Agreements shall specifically exclude all contracts, leases and
agreements with those owner/operators who have transferred to Bennett
prior to the execution of this Agreement;
(4) telephone numbers and telephone book "listings" for all
locations except the Elkhart, Indiana headquarters; and all books,
records and documents required or incident to the operation of the
business, including without limitation, all driver qualification
files, personnel files, equipment inspection files, and operations
files; provided, however, that Sellers shall retain all of Seller's
financial business records;
(5) that certain Employment Agreement by and between Wolff and
Morgan (the "Wolff Agreement");
(6) the specific vehicles (all of which currently must be under
an "active" lease), vehicle titles and/or vehicle financing contracts
with owner/operators set forth in Exhibit "C";
(7) the bond accounts for those drivers and/or owner/operators
who transferred to Bennett both before and after the execution of this
Agreement (collectively, the "Bond Accounts"), it being understood
that the Bond Accounts are an integral part of, and are maintained
pursuant to, those driver and/or owner/operator contracts, leases and
agreements described in subsection (3) above. From and after the
Closing Date, Bennett will assume and will be responsible for the Bond
Accounts for those drivers and/or owner/operators who transferred to
Bennett both before and after the execution of this Agreement, subject
to Section 2(b) hereof. Morgan will prepare and deliver to Bennett
within 45 days following the Closing Date a final statement of the
balance in each Bond Account, the aggregate of which is referred to
herein as the "Aggregate Bond Account Balance". In consideration of
Bennett assuming the Bond Accounts, the Purchase Price will be reduced
by the Aggregate Bond Account Balance by deducting the Aggregate Bond
Account Balance from the payments due Morgan as set forth in Section 2
hereof; and
(8) the name and trademark "Transamerica" and all rights of
Sellers incident thereto.
(b) Excluded Assets. The parties expressly acknowledge and agree that the
Assets shall not include the following: (i) any rights in or to any parcels of
real property or any real property leases, subleases or other leasehold
interest, except that Purchaser shall have the right, in Purchaser's discretion,
to assume Morgan's leasehold interests in those terminal locations so designated
on Exhibit "A" or, to the extent any of such leasehold interests may not be
assigned, to sublease such properties from Morgan, all at the same rates as
charged to Morgan with respect to such properties as of the the Closing Date;
(ii) any cash (except for transfer of owner/operator or driver Bond Accounts
which shall be credited against the Purchase Price payable in accordance with
Section 2); (iii) any current accounts receivable of Sellers (all of which are
being retained by Sellers); and (iv) any other asset of any kind or nature,
whether tangible or intangible, not used or held for use exclusively in the
conduct of the Business (collectively, the "Excluded Assets). Except as
expressly set forth herein, Purchaser shall not acquire any rights or interest
in or to any of the Excluded Assets.
(c) Consent of Third Parties. Notwithstanding anything to the contrary in
this Agreement, this Agreement shall not constitute an assignment or agreement
to assign or transfer any governmental approval, instrument, contract, lease,
permit or other agreement or arrangement or any claim, right or benefit arising
thereunder or resulting therefrom if an assignment or transfer or an attempt to
make such an assignment or transfer without the consent of a third party would
constitute a breach or violation thereof or affect adversely the right of
Purchaser or Sellers thereunder; and any transfer or assignment to Purchaser by
Sellers of any interest under any such instrument, contract, lease, permit or
other agreement or arrangement that required the consent of a third party shall
be made subject to such consent or approval being obtained. In the event any
such consent or approval is not obtained prior to or simultaneously with the
Closing, Sellers shall continue to use all reasonable efforts to obtain any such
approval or consent after the Closing until such time as such consent or
approval has been obtained, and Sellers will cooperate with Purchaser in any
lawful and economically feasible arrangement to provide that Purchaser shall
receive the interest of Sellers in the benefits under any such instrument,
contract, lease or permit or other agreement or arrangement, including, without
limitation, performance by Sellers as agent, if economically feasible; provided
that Purchaser shall undertake to pay or satisfy the corresponding liabilities
for the enjoyment of such benefit to the extent Purchaser would have been
responsible therefor hereunder if such consent or approval had been obtained.
Nothing in this Section 1(c) shall be deemed a waiver by Purchaser of its right
to have received on or before the Closing an effective assignment of all of the
Assets nor shall this Section 1(c) be deemed to constitute an agreement to
exclude from the Assets any assets described under Section 1(a).
2.
PURCHASE PRICE AND PAYMENT TERMS
The aggregate purchase price for all of the Assets (the "Purchase Price")
shall be paid by the Purchaser to Sellers as follows:
(a) The sum of $400,000 shall be paid by Bennett to Morgan on the Closing
Date by wire transfer of immediately available funds into the account set forth
on Exhibit "D".
(b) The sum of $400,000 shall be paid by Bennett to Morgan on the 60th day
following the Closing Date by wire transfer of immediately available funds into
an account specified by Sellers, with such sum reduced by any bond transfer
amounts set forth in the final accounting of Bond Accounts to be provided by
Morgan to Bennett within 45 days after the Closing Date and by any rights of
set-off of Bennett under the set-off provisions of Section 6(g) hereof.
(c) The sum of $200,000, payable with respect to the Wolff Agreement, shall
be paid by Bennett to Morgan in three (3) installments as follows: (i) $66,667
shall be paid on September 1, 2002; (ii) $66,667 shall be paid on October 1,
2002; and (iii) $66,666 shall be paid on November 1, 2002. Notwithstanding
anything herein to the contrary, in the event that Wolff has not consented in
writing to the assignment by the Sellers of the Wolff Agreement to Purchaser or
entered into a new employment agreement with Purchaser on or prior to the date
set forth in this Section 2(c) for the payment of any installment, then one-half
(1/2) of such installment shall be paid by Bennett to Morgan on the date set
forth herein, so long as Wolff is otherwise serving as an employee or contractor
of Bennett on such date, and the balance of such installment shall be placed in
escrow. In the event that Wolff has not consented in writing to the assignment
by the Sellers of the Wolff Agreement to Purchaser or entered into a new
employment agreement with Purchaser on or prior to November 1, 2002, then all
amounts placed in escrow pursuant to this Section 2(c) shall be immediately
forfeited by Sellers and returned to Purchaser, and in the event that Wolff
shall consent in writing to the assignment by the Sellers of the Wolff Agreement
to Purchaser or shall enter into a new employment agreement with Purchaser on or
prior to November 1, 2002, then all remaining installments set forth in this
Section 2(c) shall be paid on the dates set forth above and all amounts then
held in escrow pursuant to this Section 2(c) shall immediately be released and
paid to Sellers.
(d) The sum of $50,000 shall be paid by Bennett to Morgan as consideration
for the nine (9) vehicles, vehicle titles and/or vehicle contracts set forth in
Exhibit "C", such sum to be reduced by the amount of any liens or any other
adjustments relating to securing good title to such scheduled assets and/or any
sums paid to fulfill contingencies regarding such assets. The net sum payable by
Bennett to Morgan in accordance with the foregoing sentence shall by paid within
30 days after the Closing Date. Morgan shall transfer to Bennett any "escrow" or
"repair account" in conjunction with the subject vehicle contracts and the
purchase price of the vehicles shall be adjusted accordingly.
3.
PURCHASE PRICE ALLOCATION
The Purchaser reserves the right to reasonably determine the allocation of
the Purchase Price among the Assets, and Sellers shall report such allocation on
all reports, returns and documents created by Sellers.
4.
ASSUMPTION OF LIABILITIES
(a) Assumed Liabilities. Purchaser shall (and does hereby as of the
Closing) assume all liabilities arising out of events occurring after the
Closing Date (collectively, the "Assumed Liabilities") only with respect to and
under each of the clauses (1) and (2) below and Sellers shall be responsible for
such liabilities arising out of events occurring on or prior to the Closing Date
only with respect to and under each of the clauses (1) and (2) below:
(1) Purchaser shall (and does hereby as of the Closing) assume
and fulfill all obligations of Sellers under the Assigned Agreements
arising out of events occurring after the Closing Date; and
(2) Purchaser shall (and does hereby as of the Closing) assume
and fulfill all obligations of Sellers under the Bond Accounts as
contemplated by Section 1(a)(7) hereof
(b) Excluded Liabilities. Unless expressly provided in this Agreement,
Purchaser shall assume no liability of the Sellers or otherwise in regard to any
of the Assets which are subject to this Agreement. Specifically, Morgan shall
continue to be responsible for all cargo and liability claims arising in
connection with its operation of the Business on or prior to the Closing Date.
5.
COVENANT NOT TO COMPETE
Sellers covenant and agree that, for a twenty-four (24) month period
commencing on the Closing Date, Sellers shall not, provided that Purchaser has
performed its obligations under this Agreement, own, manage, operate, control,
finance or participate in the ownership, management, operation, control or
financing of any person, business or enterprise engaged, directly or indirectly,
in the manufactured housing transportation business in the 48 contiguous states
of the United States of America; it being understood and acknowledged, however,
that Bennett and certain of its affiliates and Morgan and certain of its
affiliates currently compete, and will continue to compete, in certain other
aspects of the transportation business, including, but not limited to, drive
away, tow away, pick up and recreational vehicle freight.
6.
COVENANTS
It is further agreed as follows:
(a) Approvals and Consents. Each of the parties hereto agrees to cooperate
with the other to obtain the consents, approvals and authorizations of, and to
prepare and deliver all filings and registrations with, third parties and
governmental authorities, comissions, boards and other regulatory bodies as
shall be necessary to consummate the transactions contemplated by this
Agreement.
(b) Assignment of Wolff Agreement. Sellers agree to to use their
commerically reasonable best efforts to obtain the consent of Wolff to the
assignment by the Sellers of the Wolff Agreement to Purchaser as contemplated
hereby and, absent such consent, Sellers agree to use their commercially
reasonable best efforts to cause Wolff to enter into a new employment agreement
with Purchaser effective as of the Closing Date.
(c) Further Assurances. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its commercially reasonable
best efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transaction contemplated hereby
in accordance with the terms of this Agreement. In case at any time after the
Closing Date any further action is necessary or desirable to carry out the
purposes of this and the foregoing agreements, the proper officers, directors or
other representatives of each party to this Agreement are hereby directed and
authorized to use their best efforts to effectuate all such action.
(d) Instruments of Transfer. Simultaneously with the Closing or as promptly
thereafter as practicable, Sellers shall deliver to Purchaser any assignment
agreements, bills of sale and such other documentation as Purchaser shall
reasonably request and as shall be reasonably necessary to convey to Purchaser
title to the Assets.
(e) Instruments of Assumption. Simultaneously with the Closing or as
promptly thereafter as practicable, Purchaser shall deliver to Sellers any
assumption agreements and such other documentation as Sellers shall reasonably
request and as shall be reasonably necessary in connection with the assumption
of the Assumed Liabilities by Purchaser.
(f) Execution of Settlement Agreements. Simultaneously with the Closing or
as promptly thereafter as practicable, the parties shall enter into definitive
settlement agreements with respect to the Lawsuits (as hereinafter defined) on
mutually acceptable terms, which shall include, without limitation, mutual
releases, dismissals with prejudice and no derogation provisions, and that
otherwise fully and finally resolve all claims and counterclaims between and
among all parties to the Lawsuits. For purposes of this Agreement, the
"Lawsuits" shall include, collectively, the following: (i) Morgan Drive Away,
Inc. v. Bennett International Group, Inc., Bennett Motor Express, Inc., Bennett
Truck Transport, LLC, Ruby Davis and Lanell Davis; United States District Court,
Northern District of Georgia, Atlanta Division; Civil Action File No.
1-01-CV-2572-RWS; and (ii) Morgan Drive Away, Inc. v. James McDowell, James
Tinkler, and Bennett Motor Express, Inc.; District Court of Hill County, Texas;
Civil Action File No. 36231.
(g) Payment of Certain Payables by Sellers. Sellers shall pay all accounts
payable, "line of credit", trade debt, terminal rent, employee wages, agent
commissions, payroll taxes, claims, insurance, utilities, fuel tax permits,
liens, encumbrances and any other expenses attributable to the operation of the
Business and all transfer taxes and fees necessary to close the transactions set
forth herein as such payments shall come due prior to or on the Closing Date
(collectively, the "Seller Payables"). Specifically, all owner/operators must be
paid in full for all work performed under their agreements with Morgan prior to
the Closing (or as promptly as practicable thereafter), and Purchaser shall be
entitled to a set off from the Purchase Price payable in accordance with Section
2 hereof of any such amount which it shall elect to pay to said drivers and of
any amount paid or incurred by Purchaser with respect to Seller Payables other
than claims which Morgan disputes in good faith. Morgan shall insure that any
insurance purchased through Morgan and charged to the owner/operators for the
month of August 2002, shall remain in effect through August 31, 2002, including
but not limited to bobtail, physical damage and occupational accident for all
owner/operators who transfer to Bennett, provided that the Bond Accounts contain
funds sufficient to pay the premiums and/or obligations of the respective
owner/operator. Morgan shall notify Bennett of the cancellation of any such
insurance. Sellers shall hold Purchaser harmless in regard to any indebtedness
for such insurance or claims under such insurance. All expenses which are
subject to audit, such as taxes, fuel tax and insurance, shall be paid by
Sellers through the Closing Date (regardless of when such adjustments are
asserted).
(h) Indemnification by Sellers. From and after the Closing Date, Sellers
shall indemnify Purchaser and hold it harmless from all claims, demands,
actions, assessments, losses, liabilities, damages or costs arising from or
related to (i) the ownership or operation of the Assets prior to the Closing
Date (except for liabilities and obligations of Sellers assumed by Purchaser
pursuant to the terms of this Agreement) and (ii) any claim or liability for
Bond Accounts or otherwise by an owner/operator and/or driver arising out of
operations prior to such owner/operator and/or driver "leasing on" to Bennett
and Bennett assuming control of such owner/operator and/or driver's Bond
Account; it being understood, that in no event shall Sellers liability under
this Section 6(h) exceed the Purchase Price paid to it pursuant to this
Agreement.
(i) Indemnification by Purchaser. From and after the Closing Date,
Purchaser shall indemnify Sellers and hold them harmless from all claims,
demands, actions, assessments, losses, liabilities, damage or costs arising from
or related to any and all obligations and liabilities of Sellers that are
assumed by Purchaser pursuant to the terms of this Agreement or the ownership,
operation or use of the Assets from and after the Closing Date.
(j) Solicitation of Employees. From and after the Closing, Purchaser (or
any affiliate of Purchaser) may solicit the employment of and may employ any or
all existing and/or former employees of Sellers whose employment duties relate
or, in the case of former employees, related, primarily to the operation of the
Business (whether or not such individuals previously were subject to covenants
and/or limitations by Morgan). Sellers shall provide Purchaser with a list of
such employees and their employment terms at or prior to the Closing.
7.
DATE OF PERFORMANCE AND CLOSING
This Agreement shall be effective as of the date of execution as set forth
in Section 10(j) below (the "Closing Date") and the closing for the consummation
of the transactions contemplated by this Agreement shall be deemed for all
purposes to have occurred as of 12:01 a.m. on the Closing Date (the "Closing").
The Closing shall take place at the offices of MEADOWS & LEWIS, P.C., 101
Eagle's Pointe Parkway, Stockbridge, Georgia 30253, (770) 957-1199, or such
other reasonable place as may be designated by Purchaser. All deliveries,
shipments, loads, freight bills, trips and otherwise originating (and continuing
until delivered and accepted by the customer) in connection with the Business on
or prior to the Closing Date shall be conducted pursuant to a bill of lading of
Morgan, and all deliveries, shipments, loads, freight bills, trips and otherwise
originating in connection with the Business after the Closing Date shall be
conducted pursuant to a bill of lading of Bennett.
8.
WARRANTIES OF SELLERS
Sellers represent and warrant to Purchaser as follows:
(a) Organization and Standing. Each Seller is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization.
(b) Title to Assets. Subject to the receipt of necessary consents of third
parties, the respective Seller has good title to the Assets to be sold by it
hereunder, and the right to sell, transfer, assign and deliver such Assets to
Purchaser, free and clear of all liens, encumbrances, claims, security
interests, pledges, agreements and rights of others (individually, a "Lien" and
collectively, "Liens"), other than Liens for current taxes not yet due and
payable or being contested in good faith by appropriate proceedings.
(c) Authorization and Binding Effect. Each Seller has all requisite power
and authority to execute, deliver and perform this Agreement. This Agreement has
been duly and validly authorized, executed and delivered by each Seller and
constitutes the legal, valid and binding obligation of each Seller, enforceable
in accordance with its terms, except as may be limited by bankruptcy,
reorganization, insolvency and other similar laws or equitable principles
relating to or affecting the enforcement of rights of creditors generally. The
execution, delivery and performance by Sellers of this Agreement will not (i)
constitute a violation of, conflict with or constitute a default under any term
or provision of the articles or certificate of incorporation or bylaws of
Sellers, (ii) constitute a violation of any statute, ordinance, judgment, order,
decree, regulation or rule of any court, governmental authority or arbitrator or
any license, permit or franchise applicable or relating to the Assets or (iii)
result in the creation of any Lien upon any of the Assets pursuant to the
provisions of any of the foregoing.
(d) Condition of Assets. The tangible assets comprising the Assets are
merchantable and have been maintained in accordance with normal industry
practice and are in good operating condition (subject to normal wear and tear).
9.
WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers as follows:
(a) Due Organization. Purchaser is a limited liability company duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite limited liability company
power and authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
(b) Authorizations and Binding Effect. The execution, delivery and
performance of this Agreement by Purchaser have been duly authorized by the
members, managers or other governing body of Purchaser, as the case may be, and
this Agreement constitutes the legal, valid and binding obligation of Purchaser
enforceable in accordance with its terms, except as may be limited by
bankruptcy, reorganization, insolvency and other similar laws or of equitable
principles relating to or affecting the enforcement of rights of creditors
generally. All other proceedings required by the limited liability company
operating agreement of Purchaser or otherwise for the execution and delivery of
this Agreement and the agreements contemplated hereby, and for the consummation
of the transactions contemplated hereby and thereby, have been duly taken.
(c) No Violation. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby constitutes or will
constitute a violation of, is or will be in conflict with, or constitutes or
will constitute a default under, any term or provision of the organizational
docuements of Purchaser.
(d) Reliance Upon Personal Knowledge. Purchaser acknowledges that, except
as otherwise expressly provided in this Agreement, it is acquiring the Assets on
an "as is, where is" basis.
10.
MISCELLANEOUS PROVISIONS
(a) Assignability. Purchaser has the absolute right to assign this
Agreement in whole or in part (or any sale/purchase contract entered into as any
part of the subject transaction) to any related corporation, entity or
individual; provided, however, that in any such event, Purchaser shall remain
fully liable hereunder.
(b) Confidentiality. The parties have previously entered into a
Confidentiality Agreement in anticipation of the negotiation of this Agreement.
Upon the signing of this document, the parties shall make a joint announcement
of the transaction. Thereafter, Purchaser shall be free to make such disclosures
as are required in the continuation of its operations. Notwithstanding all of
the foregoing, the parties acknowledge that each party has negotiated in good
faith and proceeded in accordance with reasonable business procedures in regard
to this transaction, in light of significant restraints. During the course of
negotiations, various agents, owner/operators, former employees and customers of
Morgan have sought contracts, employment, or other agreements with Bennett,
independent of any information which has come to Bennett throughout these
negotiations. Bennett has responded to such contracts in accordance with its own
best interest. Bennett has disclosed these matters to Morgan, and Morgan agrees
that such action shall not be the basis of any additional claim by Morgan
against Bennett.
(c) Entire Agreement. This Agreement and its exhibits constitute the sole
and entire agreement between the parties, and no modification of this Agreement
shall be binding unless attached hereto and signed by all parties to this
Agreement. Unless expressly modified, the terms of this Agreement shall survive
the Closing. No representations, promises, or inducements not included in this
Agreement shall be binding upon any party hereto.
(d) Controlling Law. This Agreement and the obligations hereunder
(including, but not limited to, the covenant not to compete discussed in Section
6) shall be construed and interpreted in accordance with the laws of the State
of Georgia without regard for principles of conflicts of laws.
(e) Descriptive Headings. The descriptive headings of this Agreement are
for convenience only and shall not control or affect the meaning or construction
of any provision of this Agreement.
(f) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if (i) delivered by hand, (ii) mailed by
registered or certified mail (return receipt requested) or (iii)
telecommunicated and immediately confirmed both orally and in writing, to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and shall be deemed given on the date on
which so hand-delivered or so telecommunicated or on the third business day
following the date on which so mailed, if deposited in a regularly-maintained
receptacle for United States mail:
If to Sellers:
The Morgan Group, Inc.
2746 Old U.S. 20 West
Elkhart, IN 46514-1351
Attn: Mr. Anthony T. Castor, III, CEO
Telecopier: (800) 285-0828
Telephone: (800) 289-7565
With a copy to:
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, GA 30303
Attn: Jeffrey W. Willis, Esq.
Telecopier: (404) 525-2224
Telephone: (404) 522-4700
If to Purchaser:
Bennett Truck Transport, LLC
1001 Industrial Parkway
McDonough, GA 30253
Attn: Danny Lowry, President
Telecopier: (800) 866-4420
Telephone: (770) 957-1866
With a copy to:
Meadows & Lewis, P.C.
101 Eagle's Pointe Parkway
Stockbridge, GA 30253
Attn: Rod G. Meadows, Esq.
Telecopier: (770) 954-1199
Telephone: (770) 957-1199
(g) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
(h) Third Party Rights. Notwithstanding any other provision of this
Agreement, this Agreement shall not create benefits on behalf of any employee of
either Seller, third party or other person, and this Agreement shall be
effective only as between the parties hereto, their successors and permitted
assigns.
(i) Time of Essence. Wherever time is specified for the doing or
performance of any act or the payment of any funds, time shall be considered of
the essence.
(j) Effectiveness. This Agreement shall become effective as to both parties
when signed by their respective duly authorized representatives. When it has
been fully executed, this Agreement shall be binding upon each party and their
respective successors and assigns (subject to the conditions and contingencies
stated herein).
(k) Expenses. Each of the parties hereto will bear their own costs and
expenses incurred in connection with this Agreement and the transaction
contemplated hereby.
(l) Bulk Sales. The parties acknowledge that the transaction contemplated
herein may not require notice pursuant to the bulk sales laws applicable within
the States of Georgia and/or Indiana. However, should Purchaser elect to do so,
Sellers agree to join Purchaser in giving notice to all vendors, suppliers, and
customers of the Business regarding the transfer of assets.
BENNETT TRUCK TRANSPORT, LLC
By: /s/ Marcia G. Taylor
------------------------------------
Marcia G. Taylor
Its: Chief Executive Officer
APPROVED AND ACCEPTED BY:
THE MORGAN GROUP, INC.
By: /s/ Anthony T. Castor, III
----------------------------------
Anthony T. Castor, III
Its: Chief Executive Officer
MORGAN DRIVE AWAY, INC.
By: /s/
-----------------------------------
Its: __________________________________
Date: August 14, 2002
Exhibits
Exhibit A Terminal Locations
Exhibit B Agreements
Exhibit C Vehicles
Exhibit D Wire Instructions
(Exhibits will be provided supplementally to the Commission upon request.)