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EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
AMONG
SPECIALTY TRANSPORTATION SERVICES, INC.,
AN ILLINOIS CORPORATION
AND
MICHAEL SIZEMORE
AND
GARY I. GOLDBERG
DATED AS OF JULY 23, 1998
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TABLE OF CONTENTS
1. DEFINITIONS..............................................................................................1
2. THE PURCHASE AND SALE....................................................................................3
2.1. PURCHASE AND SALE.......................................................................................3
3. REPRESENTATIONS AND WARRANTIES...........................................................................4
3.1. TITLE...................................................................................................4
3.2. POWER AND AUTHORITY OF STOCKHOLDERS.....................................................................4
3.3. NO STOCKHOLDER PROHIBITION..............................................................................4
3.4. ORGANIZATION, QUALIFICATION AND CORPORATE POWER.........................................................4
3.5. NONCONTRAVENTION........................................................................................4
3.6. NO CONSENTS.............................................................................................5
3.7. CAPITALIZATION..........................................................................................5
3.8. SUBSIDIARY..............................................................................................5
3.9. FINANCIAL STATEMENTS; BOOKS AND RECORDS.................................................................6
3.10. RECENT EVENTS..........................................................................................6
3.11. UNDISCLOSED LIABILITIES................................................................................7
3.12. TAX MATTERS............................................................................................8
3.13. TITLE AND CONDITION OF PROPERTIES......................................................................9
3.14. AGREEMENTS AND AUTHORIZATIONS..........................................................................9
3.15. ACCOUNTS RECEIVABLE....................................................................................9
3.16. POWERS OF ATTORNEY....................................................................................10
3.17. LITIGATION............................................................................................10
3.18. EMPLOYEES; EMPLOYMENT MATTERS.........................................................................10
3.19. EMPLOYEE BENEFIT PLANS................................................................................10
3.20. LICENSES, PERMITS AND APPROVALS.......................................................................11
3.21. UNLAWFUL PAYMENTS.....................................................................................11
3.22. COMPLIANCE WITH LAWS..................................................................................11
3.23. INSURANCE.............................................................................................11
3.24. ENVIRONMENT, HEALTH, AND SAFETY.......................................................................12
3.25. BROKERS' FEES.........................................................................................12
3.26. DISCLOSURE............................................................................................12
4. REPRESENTATIONS AND WARRANTIES OF BUYER.................................................................13
4.1. ORGANIZATION...........................................................................................13
4.2. NONCONTRAVENTION.......................................................................................13
4.3. NO CONSENTS............................................................................................13
4.4. BROKERS' FEES..........................................................................................14
4.5. FULL DISCLOSURE........................................................................................14
5. COVENANTS PRIOR TO CLOSING..............................................................................14
5.1. CONDUCT OF OPERATIONS..................................................................................14
5.2. NOTICE OF CHANGES......................................................................................14
5.3. CONFIDENTIALITY........................................................................................14
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6. CONDITIONS TO OBLIGATION OF BUYER.......................................................................15
6.1. REPRESENTATIONS AND WARRANTIES.........................................................................15
6.2. OBLIGATIONS............................................................................................15
6.3. STOCKHOLDERS'CERTIFICATE...............................................................................15
6.4. THIRD PARTY CONSENTS...................................................................................15
6.5. NO ADVERSE CHANGE......................................................................................15
6.6. TERMINATIONS...........................................................................................15
6.7. RESIGNATIONS...........................................................................................16
7. CONDITIONS TO OBLIGATIONS OF THE STOCKHOLDERS...........................................................16
7.1. REPRESENTATIONS AND WARRANTIES.........................................................................16
7.2. OBLIGATIONS............................................................................................16
7.3. BUYER'S CERTIFICATE....................................................................................16
7.4. CORPORATE RESOLUTIONS..................................................................................16
8. TERMINATION.............................................................................................16
8.1. TERMINATION............................................................................................16
8.2. EFFECT OF TERMINATION..................................................................................17
9. CLOSING.................................................................................................17
9.1. TIME AND PLACE OF CLOSING..............................................................................17
9.2. DOCUMENTS TO BE DELIVERED BY THE STOCKHOLDERS..........................................................17
9.3. DOCUMENTS TO BE DELIVERED BY THE BUYER.................................................................17
10. POST-CLOSING OBLIGATIONS OF THE PARTIES.................................................................18
10.1. FURTHER OBLIGATIONS OF THE PARTIES.....................................................................18
10.2. NO INTERFERENCE........................................................................................18
11. SURVIVAL OF WARRANTIES AND INDEMNIFICATION..............................................................19
11.1. SURVIVAL...............................................................................................19
11.2. INDEMNIFICATION BY THE STOCKHOLDERS....................................................................19
11.3. LIMITS ON STOCKHOLDERS' INDEMNIFICATION................................................................19
11.4. INDEMNIFICATION BY BUYER...............................................................................20
11.5. LIMITS ON BUYER'S INDEMNIFICATION......................................................................20
11.6. MATTERS INVOLVING THIRD PARTIES........................................................................20
12. MISCELLANEOUS PROVISIONS................................................................................21
12.1. NO THIRD PARTY BENEFICIARIES...........................................................................22
12.2. ENTIRE AGREEMENT.......................................................................................22
12.3. SUCCESSION AND ASSIGNMENT..............................................................................22
12.4. COUNTERPARTS...........................................................................................22
12.5. NOTICES................................................................................................22
12.6. GOVERNING LAW; EXCLUSIVE JURISDICTION..................................................................23
12.7. AMENDMENTS AND WAIVERS.................................................................................23
12.8. SEVERABILITY...........................................................................................23
12.9. EXPENSES...............................................................................................24
12.10. CONSTRUCTION..........................................................................................24
12.11. INCORPORATION OF EXHIBITS AND SCHEDULES...............................................................24
12.12. REMEDIES..............................................................................................24
12.13. ENFORCEMENT EXPENSES..................................................................................25
12.14. DIRECTLY OR INDIRECTLY................................................................................25
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12.15. TIME OF THE ESSENCE...................................................................................25
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EXHIBITS
Company Disclosure Schedule
- ---------------------------
Schedule 3.5 Noncontravention
Schedule 3.6 Required Consents
Schedule 3.9 Financial Statements
Schedule 3.10 Recent Events
Schedule 3.11 Liabilities
Schedule 3.12(c) Audits
Schedule 3.17 Litigation
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") entered into as of
July 23, 1998 ("AGREEMENT DATE"), by and among Specialty Transportation
Services, Inc., an Illinois corporation ("BUYER"), Michael Sizemore ("SIZEMORE")
and Gary I. Goldberg ("GOLDBERG"). Sizemore and Goldberg are referred to herein
collectively as the "STOCKHOLDERS." Each of Buyer and the Stockholders are
referred to herein individually as a "PARTY" and any two or more of them are
referred to herein collectively as the "PARTIES."
RECITALS
A. The Stockholders, collectively, own one hundred percent (100%) of
the issued and outstanding shares of the capital stock of Dump Truck Services,
Inc., a Maryland corporation (the "COMPANY") engaged in the business of
transporting dry bulk commodities in dump vehicles (the "BUSINESS").
B. The Stockholders desire to sell and Buyer desires to acquire, the
Stock upon the terms and subject to the conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, and the
mutual promises herein made, and in consideration of the representations,
warranties and covenants herein contained, the Parties hereby agree as follows:
ARTICLE
1.
DEFINITIONS
"AFFILIATE" means, with respect to any particular Person, any other
Person controlling, controlled by or under common control with such Person,
whether by ownership or control of voting securities, by contract or otherwise.
"ADVERSE CONSEQUENCES" means all charges, complaints, actions, suits,
proceedings, hearings, investigations, claims, demands, judgments, orders,
decrees, stipulations, injunctions, damages, dues, penalties, fines, costs,
amounts paid in settlement, Liabilities, Taxes, Security Interests, losses,
expenses, and fees, including all attorneys' fees and court costs.
"BASIS" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could form the basis for
any specified consequence.
"CODE" means the Internal Revenue Code of 1986, as amended.
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"ENVIRONMENTAL, HEALTH AND SAFETY LAWS" means all applicable Federal,
state, foreign and local laws, rules, regulations, court orders and judicial
doctrines relating to the protection of health, safety and the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"HAZARDOUS SUBSTANCE" means any substance, whether solid, liquid or
gaseous in nature which is or becomes defined as "hazardous waste", a "hazardous
substance", a "pollutant", a "contaminant" or any other special material under
any Federal, state, foreign or local statute, regulation, rule or ordinance,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, (42 USC ss. 9601 et seq.) and the Resource
Conservation and Recovery Act (42 USC ss. 6901 et seq.); and petroleum products,
including gasoline, diesel fuel, fuel oil, crude oil and motor oil and the
constituents and fractions thereof.
"INDEBTEDNESS" of any Person means all obligations of such Person which
should be classified upon a balance sheet of such Person as liabilities of such
entity, and in any event, shall include (i) all obligations of such Person for
borrowed money or which has been incurred in connection with the acquisition of
property or assets; (ii) obligations secured by any Security Interest upon
property or assets owned by such Person, even though such Person has not assumed
or become liable for the payment of such obligations; (iii) obligations created
or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person, notwithstanding the fact that the
rights and remedies of the seller, lender or lessor under such agreement in the
event of default are limited to repossession or sale of the property; and (iv)
capitalized lease obligations.
"KNOWLEDGE" means the knowledge that a reasonable person under similar
circumstances would have after investigation and inquiry.
"LIABILITY" means any liability (whether known or unknown, whether
absolute or contingent, whether liquidated or unliquidated, and whether due or
to become due), obligation or Indebtedness, including, any liability for Taxes.
"MATERIAL ADVERSE EFFECT" means a material adverse effect or impact
upon the Business, assets, financial condition, results of operations, or
prospects of the Company taken as a whole or on the ability of the Parties to
consummate the transactions contemplated hereby.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business of
the Company or Buyer, consistent with past custom and practice of the Company or
Buyer, respectively, as the context herein may require (including with respect
to quantity and frequency).
"PERSON" means any individual, trust, corporation, partnership, limited
liability company or other business association or entity, court, governmental
body or governmental agency.
"PLANS" means: (i) all employee benefit plans as defined in Section
3(3) of ERISA; (ii) all other severance pay, deferred compensation, excess
benefit, vacation, stock, stock option, fringe benefit and incentive plans,
contracts, schemes, programs, funds, commitments, or arrangements of any kind;
and
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(iii) all other plans, contracts, schemes, programs, funds, commitments, or
arrangements providing money, services, property, or other benefits, whether
written or oral, qualified or nonqualified, funded or unfunded, and including
any that have been frozen or terminated, which pertain to any employee, former
employee, partner, director, officer, shareholder, consultant, or independent
contractor of the Company and (a) to which the Company has been a party or by
which it is or has been bound or (b) with respect to which the Company has made
any payments or contributions since December 31, 1995 or (c) to which the
Company may otherwise have any liability (including any such plan or arrangement
formerly maintained by the Company).
"SECURITY INTEREST" means any mortgage, pledge, security interest,
charge, lien or other encumbrance or right of any third party.
"TAX" or "TAXES" means any Federal, state, local, or foreign income,
gross receipts, sales, licenses, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under
Section 59A of the Code), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, value added, alternative or
add-on minimum, estimated, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not.
"TAX RETURN" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
ARTICLE
2.
THE PURCHASE AND SALE
2.1. PURCHASE AND SALE. Subject to the provisions of this Agreement, Buyer will
purchase, and the Stockholders will sell, transfer and assign to Buyer, all of
the Stock, which will constitute all of the issued and outstanding shares of
capital stock of the Company as of the Closing Date (as defined herein), for an
aggregate purchase price (the "PURCHASE PRICE") of One Million Four Hundred
Thousand Dollars ($1,400,000) plus interest at the rate of eight and one-half
percent (8 1/2%) per annum from May 1, 1998 to the Closing Date, which amount
shall be paid by wire transfer in immediately available funds, (i) $700,000 to
Sizemore plus one-half (1/2) of the aforementioned interest; and (ii) $700,000
to Goldberg plus one-half (1/2) of the aforementioned interest.
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ARTICLE
3.
REPRESENTATIONS AND WARRANTIES
As a material inducement to Buyer to enter into this Agreement and
consummate the transactions contemplated hereby, the Stockholders hereby,
jointly and severally, represent and warrant to Buyer that all of the statements
contained in this Agreement are correct and complete as of the date of this
Agreement, except as set forth in the schedules attached to this Agreement
disclosing exceptions to the representations and warranties set forth herein
(the "COMPANY DISCLOSURE SCHEDULE").
3.1. TITLE. Each Stockholder has good and marketable title to the
shares of the Stock which are to be sold, transferred and assigned by such
Stockholder pursuant to this Agreement, free and clear of any and all Security
Interests, options or rights of any nature which, together with the Stock owned
by the other Stockholder, constitutes all of the Stock of the Company.
3.2. POWER AND AUTHORITY OF STOCKHOLDERS. Each Stockholder has the full
right, power and authority to execute and deliver this Agreement and to perform
such Stockholder's obligations hereunder and thereunder. This Agreement
constitutes the valid and legally binding obligations of such Stockholder
enforceable against such Stockholder in accordance with their respective terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally, now or hereafter in effect and
subject to the application of equitable principles and the availability of
equitable remedies.
3.3. NO STOCKHOLDER PROHIBITION. Neither Stockholder is a party to,
subject to or bound by any agreement or any judgment, order, writ, prohibition,
injunction or decree of any court or other governmental body which would prevent
the execution or delivery of this Agreement by either Stockholder or the
consummation of the transactions contemplated hereby.
3.4. ORGANIZATION, QUALIFICATION AND CORPORATE POWER. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Maryland. The Company has all requisite corporate power and
authority to carry on the business in which it is engaged and to own and use the
properties owned and used by it. True and correct copies of the Articles of
Incorporation and By-Laws of the Company as amended to date, have been made
available or have been delivered to Buyer. The Company is qualified to conduct
business and is in good standing under the laws of each jurisdiction wherein the
nature of its business or its ownership of property requires it to be so
qualified except where the failure to so qualify would not have a Material
Adverse Effect.
3.5. NONCONTRAVENTION. Except as set forth on Schedule 3.5 of the
Company Disclosure Schedule, neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby will (a)
violate or conflict in any way with any statute, regulation, law, rule or common
law doctrine which violation or conflict would have a Material Adverse Effect;
(b) violate or conflict in any way with any judgment, order, decree,
stipulation, injunction, charge or other restriction of any government,
governmental agency or court to which the Company or any of the Stockholders are
specifically subject which violation or conflict would have a Material Adverse
Effect or any provision of the Articles of Incorporation or By-Laws of the
Company's or result in the creation of
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any Security Interest upon any of the Company' assets pursuant to the terms
thereof or (c) conflict with, result in a breach of, constitute a default under
(with or without notice or lapse of time, or both), result in the acceleration
of, create in any party the right to accelerate, terminate, modify or cancel, or
require any notice, consent or approval under, any material contract, agreement,
lease, sublease, license, sublicense, franchise, permit, indenture, agreement
for borrowed money, instrument of indebtedness, Security Interest or other
arrangement to which the Company is a party or by which it is bound or to which
any of its assets are subject, except where such violations, conflicts,
breaches, defaults or other events would not result in a Material Adverse Effect
or materially delay or interfere with the consummation of the transactions
contemplated hereby.
3.6. NO CONSENTS. Neither the Company nor any of the Stockholders are
required to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government, governmental agency or
court, or any other Person, in order for the parties hereto to consummate the
transactions contemplated hereby and in order that such transactions will not
constitute a breach or violation of, result in a right of termination or
acceleration of or result in the creation of any Security Interest on any of the
Company's assets pursuant to the provisions of, any material agreement,
arrangement or understanding or any license, franchise or permit, except for (a)
those notices, filings, authorizations, consents and approvals listed on
Schedule 3.6 of the Company Disclosure Schedule and (b) except for such notices,
filings, authorizations, consents or approvals, which if not obtained or made,
would not have a Material Adverse Effect.
3.7. CAPITALIZATION. The authorized capital stock of the Company
consists solely of the following shares of Stock: 1,000 shares of which 500
shares are issued to Sizemore and 500 shares are issued to Goldberg as of the
date hereof. All of the issued and outstanding shares of the Stock of the
Company have been duly authorized, validly issued and on the Closing Date will
be fully paid, and nonassessable, and are not subject to any preemptive rights.
There are no currently outstanding or authorized options, warrants, rights,
contracts, rights of first refusal or first offer, calls, puts, rights to
subscribe, conversion rights, or other agreements or commitments to which the
Company is a party or which is binding upon the Company providing for the
issuance, disposition, or acquisition of any of its capital stock or securities
convertible into or exchangeable for its capital stock. There are no outstanding
or authorized stock appreciation, phantom stock, or similar rights with respect
to the Company, and there are no contractual or statutory preemptive rights or
similar restrictions with respect to the issuance or transfer of any shares of
capital stock of the Company. There are no voting trusts, proxies, or any other
agreements, restrictions or understandings with respect to the voting of any of
the capital stock of the Company.
3.8. SUBSIDIARY. The Company does not own, directly or indirectly, any
interest or investment (whether equity or debt) in any corporation, partnership,
business, trust, or other entity.
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3.9. FINANCIAL STATEMENTS; BOOKS AND RECORDS.
(a) The Stockholders have provided Buyer with the following
financial statements of the Company, correct and complete copies of
which are set forth on Schedule 3.9 of the Company Disclosure Schedule
(collectively the "FINANCIAL STATEMENTS"): (i) unaudited balance sheet
("LATEST BALANCE SHEET") and related statement of income of the Company
as of and for the fiscal year ended December 31, 1997. The Financial
Statements are correct and complete in all material respects, have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods covered thereby, and fairly
present the financial condition and results of operations of the
Company in all material respects as of the times and for the periods
referred to therein.
(b) The corporate minute books of the Company, copies of which
have heretofore been provided or made available to Buyer, correctly
reflect all resolutions adopted and all other material corporate
actions taken at all meetings or through consents of the directors and
the Stockholders of the Company. The stock transfer books and stock
ledgers of the Company are complete and correctly reflect all issuances
and transfers of the capital stock of the Company.
3.10. RECENT EVENTS. Since December 31, 1997, the Company has not
experienced or suffered any Material Adverse Effect. Without limiting the
generality of the foregoing, except as reflected on the Latest Balance Sheet or
Schedule 3.10 of the Company Disclosure Schedule, since December 31, 1997, the
Company has not:
(a) sold, leased, transferred or assigned any of their assets,
tangible or intangible, other than in the Ordinary Course of Business;
(b) accelerated, terminated, modified, canceled or committed any
material breach of any Contract, involving more than $10,000;
(c) canceled, compromised, waived, or released any Indebtedness
right or claim (or series of related rights and claims) either
involving more than $10,000 or otherwise outside the Ordinary Course of
Business;
(d) experienced any material damage, destruction, or loss (whether
or not covered by insurance) to any of their properties or assets
(other than ordinary wear and tear not caused by neglect);
(e) incurred any Indebtedness for borrowed money or created or
suffered to exist any Security Interest upon any of their assets, other
than borrowings by the Company for the purchase of equipment in the
Ordinary Course of Business;
(f) changed the manner in which the Business has been conducted,
including, without limitation, collection of accounts receivable or
payment of accounts payable;
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(g) changed the accounting principles, methods or practices or any
change in the depreciation or amortization policies or rates;
(h) changed the relationships with any customer, supplier or other
contractors or agents which might reasonably be expected to have a
Material Adverse Effect on any of their assets, the Business or the
prospects of the Buyer with respect to any of the foregoing;
(i) issued, sold, or otherwise disposed of any of its capital
stock, or granted any options, warrants, or other rights to purchase or
obtain (including upon conversion or exercise) any of its capital
stock, or any securities convertible or exchangeable into any of its
capital stock;
(j) declared, set aside, or paid any dividend or distribution with
respect to its capital stock (whether in cash or in kind) or redeemed,
purchased, or otherwise acquired any of its capital stock;
(k) entered into any transaction, arrangement or contract with, or
distributed or transferred any cash, property or other assets to, any
officer, director, stockholder, agent or other insider or Affiliate of
the Company (other than wages, salaries and employee benefits in the
Ordinary Course of Business);
(l) made or committed to make any capital expenditures or entered
into any other material transaction outside the Ordinary Course of
Business or involving an expenditure in excess of $100,000;
(m) entered into, amended or modified in any material respect any
Plan;
(n) entered into any employment agreement or collective bargaining
agreement or granted any increase in excess of $5,000 in the salary of
any officer or employee or paid any bonus to any officer or employee;
(o) experienced any work interruptions, labor grievances or
claims, or any event or condition of any character, which could result
in a Material Adverse Effect;
(p) entered into, amended, modified or terminated any Contract;
(q) consummated any material transaction outside the Ordinary
Course of Business; or
(r) committed (orally or in writing) to any of the foregoing.
3.11. UNDISCLOSED LIABILITIES.
(a) The Company has no Liability (and there is no Basis for any
present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand against any of the Company giving rise
to any Liability), except for (i) Liabilities set forth on the face of
the
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Latest Balance Sheet; (ii) Liabilities, which have arisen after the
December 31, 1997 in the Ordinary Course of Business (none of which
relates to any breach of contract, breach of warranty, tort,
environmental liability, product liability, infringement, or violation
of law or arose out of any charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand); and (iii) Liabilities
otherwise expressly disclosed in this Agreement or the Company
Disclosure Schedule.
(b) Set forth on Schedule 3.11 of the Company Disclosure Schedule
is, in the case of those Liabilities which are not fixed, a reasonable
estimate of the maximum amount which may be payable with respect
thereto. For each such Liability for which the amount is not fixed or
is contested, the Stockholders have provided to Buyer the following
information: (i) a summary description of the Liability: (ii) copies of
all relevant documentation relating thereto; (iii) amounts claimed and
any other action or relief sought; (iv) name of claimant and all other
parties to the claim, suit or proceeding; and (v) a reasonable best
estimate of the maximum amount, if any, which is likely to become
payable with respect to each such Liability; and if no estimate is
provided, the best estimate shall for purposes of this Agreement be
deemed to be zero.
3.12. TAX MATTERS.
(a) The Company has filed all Tax Returns that it was required to
file on or prior to the date hereof. To the best of Stockholders'
Knowledge, all such Tax Returns were correct and complete in all
material respects and accurately reflected all Liability for Taxes for
the periods covered thereby. All Taxes owed and due by the Company for
results of operations through the Effective Date (whether or not shown
in any Tax Return) have been paid or have been adequately reflected on
the Latest Balance Sheets. The Company and the Stockholders have not
received written notice of any claim made by any authority in a
jurisdiction where the Company does not file Tax Returns that the
Company is or may be subject to taxation by that jurisdiction other
than letters of inquiry which have been addressed by filing tax returns
or determinations that no taxes were due. There are no Security
Interests on any of the assets of the Company that arose in connection
with any failure (or alleged failure) to pay any Tax when due.
(b) The Company has withheld and paid when due all Taxes required
to have been withheld and paid in connection with amounts paid or owing
to any employee.
(c) To the best of Stockholders' Knowledge, there is no Basis on
which any taxing authority could assess any additional Taxes for any
period for which Tax Returns have been filed. There is no pending
written dispute or claim concerning any Tax Liability of the Company.
The Stockholders have previously provided to Buyer correct copies of
all Tax Returns filed with respect to the Company for taxable periods
ended on or before December 31, 1996. Except as set forth in Schedule
3.12(c) of the Company Disclosure Schedule, none of such Tax Returns
have been audited, and none currently are the subject of audit, and
there are no examination reports or open or unpaid statements of
deficiencies assessed against or agreed to by any of the Company for
such taxable periods.
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(d) The Company has not waived any statute of limitations in
respect of Taxes or agreed to any extension of time with respect to any
Tax assessment or deficiency.
3.13. TITLE AND CONDITION OF PROPERTIES.
(a) The Company does not presently own or lease any real estate.
(b) The Company owns good and marketable title, free and clear of
all Security Interests, to all of the personal property and assets
reflected on the Latest Balance Sheet or acquired after the date of the
Latest Balance Sheet, except for (i) Security Interests which secure
Indebtedness set forth on the Latest Balance Sheet; (ii) imperfections
of title which are not, in the aggregate, material in character, amount
or extent and which do not materially detract from the value or
materially interfere with the present or presently contemplated use of
the assets subject thereto or affected thereby; and (iii) Security
Interests for current Taxes not yet due and payable, the Liability with
respect to which is reserved on the Latest Balance Sheet.
(c) The Company does not presently lease any equipment.
(d) All of the material machinery, vehicles, equipment and other
tangible personal property and assets are in good condition and repair,
except for ordinary wear and tear not caused by neglect, and are
useable in the Ordinary Course of Business. The personal property and
assets shown on the Latest Balance Sheet or acquired after December 31,
1997, include all assets necessary to the conduct of the Business as
presently conducted. None of the Stockholders, other employees or
independent contractors of the Company or its Affiliates own any rights
in any assets, real or personal, which are used in the Business.
3.14. AGREEMENTS AND AUTHORIZATIONS. All of the material agreements
entered into by the Company as of the date of this Agreement are in full force
and effect. No event has occurred that (whether with or without notice, lapse of
time or the happening or occurrence of any other event) would constitute a
breach or default by the Company under any such agreements. Neither the Company
nor the Stockholders are aware of any material default by the other parties to
such agreements.
3.15. ACCOUNTS RECEIVABLE. All notes and accounts receivable of the
Company, are reflected properly on the Latest Balance Sheet and those which
arise thereafter through Closing, arose or will arise out of bona fide, arm's
length transaction for the sale of goods or services, are valid receivables
subject to no set-offs or counterclaims other than those effected in the
Ordinary Course of Business, are current and collectible in the Ordinary Course
of Business using normal collection practices, and will be collected in
accordance with their terms at their recorded amounts, subject only to the
reserve for bad debts set forth on the face of the Latest Balance Sheet. Since
December 31, 1997, there has not been a material change in the aggregate amount
of the accounts receivable of the Business or the aging thereof.
3.16. POWERS OF ATTORNEY. There are no outstanding powers of attorney
executed by or on behalf of the Company.
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3.17. LITIGATION. Schedule 3.17 of the Company Disclosure Schedule sets
forth each instance in which the Company or any of the Stockholders is, in
connection with the Business (a) subject to any unsatisfied judgment, order,
decree, stipulation, injunction or charge or (b) is a party to or is, to the
best of Stockholders' Knowledge, threatened to be made a party to, any charge,
complaint, action, suit, proceeding, hearing, or investigation of or in any
court or quasi-judicial or administrative agency of any Federal, state, local,
or foreign jurisdiction or before any arbitrator. None of the charges,
complaints, actions, suits, proceedings, hearings, and investigations set forth
in Schedule 3.17 of the Company Disclosure Schedule could reasonably be expected
to result in any Material Adverse Effect. To the best of Stockholders'
Knowledge, no Basis exists on which any such charge, complaint, action, suit,
proceeding, hearing, or investigation may be brought or threatened against any
of the Company.
3.18. EMPLOYEES; EMPLOYMENT MATTERS.
(a) The Company is not a party to or bound by any collective
bargaining agreements, and the Company has not experienced any strikes,
grievances, other collective bargaining disputes or claims of unfair
labor practices. To the best of Stockholders' Knowledge, there is no
organizational effort presently being made or threatened by or on
behalf of any labor union with respect to employees of any of the
Company.
(b) To the best of Stockholders' Knowledge, the Company has
complied with all applicable laws relating to labor, including, any
provisions thereof relating to wages, termination pay, vacation pay,
fringe benefits, collective bargaining and the payment and/or accrual
of the same and all Taxes, insurance and all other costs and expenses
applicable thereto, and to the best of Stockholders' Knowledge, none of
the Company are liable for any arrearage, or any Taxes, costs or
penalties for failure to comply with any of the foregoing.
3.19. EMPLOYEE BENEFIT PLANS.
To the best of Stockholders' Knowledge, the Plan is in compliance
with its terms and with ERISA and other applicable laws (including,
without limitation, compliance with the health care continuation
requirements of COBRA and any proposed regulations promulgated
thereunder), and with all other material agreements and instruments
applicable to any Plan. The Company has received a favorable
determination letters as to the qualification under the Code of the
pension plan, as defined in Section 3(2) of ERISA, and there have been
no amendments or other developments since the date of such
determination letters which would cause the loss of such qualified
status. No violation of ERISA has at any time occurred in connection
with the administration of the Plan, and there are no actions, suits,
or claims (other than routine, non-contested claims for benefits)
pending or threatened against the Plan, or any administrator or
fiduciary thereof, which could result in any liability. The Plan can be
terminated within thirty days, without payment of any additional
contribution or amount and, except as otherwise mandated by ERISA,
without the vesting or acceleration of any benefits promised by such
Plan.
3.20. LICENSES, PERMITS AND APPROVALS. The Company has obtained all
material governmental and regulatory licenses, authorizations, franchises,
certificates, permits and approvals, and all material quality, safety and other
industry group certifications and approvals ("PERMITS") necessary to
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the conduct of the Business. All such Permits are in full force and effect and
all of such Permits are adequate for the operation of the Business as it is
presently being conducted. To the best of Stockholders' Knowledge, there are no
violations by the Company of, or any claims or proceedings, pending or
threatened, challenging the validity of or seeking to discontinue, any Permits.
The Company has conducted and are conducting the Business in compliance with the
material requirements, standards, criteria and conditions set forth in the
Permits, are not in violation of any of the foregoing where such non-compliance
or violation would result in the revocation of such Permit.
3.21. UNLAWFUL PAYMENTS. To the best of Stockholders' Knowledge, no
payments of either cash or other consideration have been made to any Person by
any of the Company or any Stockholder or on behalf of the Company by any agent,
employee, officer, director, stockholder or other Person, that were unlawful
under the laws of the United States or any state or any other foreign or
municipal government authority having appropriate jurisdiction over the Company.
3.22. COMPLIANCE WITH LAWS. The Company is in compliance in all
material respects with and have not in the past violated any applicable law,
rule or regulation of any Federal, state, local or foreign government or agency
thereof where the failure to comply would have a Material Adverse Effect, and no
written notice, claim, charge, complaint, action, suit, proceeding,
investigation or hearing has been received by the Company or filed, commenced or
to the best of Stockholders' Knowledge, threatened against the Company alleging
any such violation. The Company has conducted and are conducting the Business in
material compliance with the material requirements, standards, criteria and
conditions set forth in applicable laws, statutes, ordinances, permits,
licenses, orders, approvals, authorizations, variances, rules, regulations,
judicial decrees, common law and civil law, of all jurisdictions having
authority over the Business and the assets, and none of them is in violation of
any of the foregoing which might have a Material Adverse Effect.
3.23. INSURANCE. With respect to each such insurance policy to the best
of Stockholders' Knowledge: (i) the policy is legal, valid, binding,
enforceable, and in full force and effect; (ii) the policy will continue to be
legal, valid, binding, enforceable, and in full force and effect on identical
terms immediately following the consummation of the transactions contemplated
hereby; (iii) the Company or any other party to the policy, is not in material
breach or default (including with respect to the payment of premiums or the
giving of notices), and no event has occurred which, with notice or the lapse of
time, or both, would constitute such a breach or default, or permit termination,
modification, or acceleration, under the policy; and (iv) no party to the policy
has repudiated in writing any provision thereof.
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3.24. ENVIRONMENT, HEALTH, AND SAFETY.
(a) The Company has complied in all material respects with all
Environmental, Health, and Safety Laws, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand,
or notice has been filed or commenced against the Company alleging any
failure so to comply. Without limiting the generality of the preceding
sentence, the Company has obtained and been in material compliance with
all of the terms and conditions of all material permits, licenses, and
other authorizations which are required under, and has complied in all
material respects with all other material limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations,
schedules, and timetables which are contained in, all Environmental,
Health, and Safety Laws.
(b) The Company has not handled or disposed of any substance,
arranged for the disposal of any substance, exposed any employee or
other individual to any substance or condition, or owned or operated
any property or facility in any manner that could form the Basis for
any present or future action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand against the Company giving rise to
any Liability for damage to any site, location, or body of water
(surface or subsurface), for any illness of or personal injury to any
employee or other individual, or for any reason under any
Environmental, Health, and Safety Law.
(c) All properties and equipment used by the Company is now and at
all relevant times have been free of asbestos, PCB's, methylene
chloride, trichloroethylene, 1,2-trans-dichloroethylene, dioxins,
dibenzofurans, and Hazardous Substances.
3.25. BROKERS' FEES. Neither the Company or any of the Stockholders has
any Liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this Agreement
for which Buyer or the Company could become liable or otherwise obligated.
3.26. DISCLOSURE. None of the representations and warranties of the
Company or the Stockholders contained herein, or any other statements by the
Company and the Stockholders in this Agreement or the Company Disclosure
Schedule, contains any untrue statement of a material fact or omits a material
fact necessary to make the statements contained herein or therein, in light of
the circumstances in which they were made, not misleading. This Agreement,
including the Company Disclosure Schedule hereto, together with all other
documents and information made available by the Company and the Stockholders to
the Buyer and its representatives pursuant hereto, present fairly the business
and operations of the Company.
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ARTICLE
4.
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to the Company and the Stockholders to enter
into and perform their respective obligations under this Agreement, Buyer hereby
represents and warrants to each of the Stockholders that the statements
contained in this Article 4 are true and correct as of the date hereof.
4.1. ORGANIZATION. Buyer is a corporation duly organized and validly
existing under the laws of the State of Illinois.
4.2. AUTHORIZATION OF TRANSACTION. Buyer has full right, power and
authority to enter into this Agreement and to perform its obligations hereunder.
The entry into and performance hereof have been duly authorized by all necessary
corporate action on the part of Buyer in accordance with its corporate charter,
by-laws and applicable law and this Agreement constitutes a valid agreement,
binding upon and enforceable against Buyer in accordance with its terms, except
as the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting the enforcement of creditors'
rights generally, now or hereafter in effect and subject to the application of
equitable principle and the availability of equitable remedies.
4.3. NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby will (a)
violate or conflict in any way with any statute, regulation, law, rule or common
law doctrine which violation or conflict would have a material adverse effect,
(b) violate or conflict in any way with any judgment, order, decree,
stipulation, injunction, charge or other restriction of any government,
governmental agency or court to which Buyer is specifically subject which
violation or conflict would have a material adverse effect or any provision of
its Articles of Incorporation or By-Laws, or result in the creation of any
Security Interest upon any of Buyer's assets pursuant to the terms thereof, or
(c) conflict with, result in a breach of, constitute a default under (with or
without notice or lapse of time, or both), result in the acceleration of, create
in any party the right to accelerate, terminate, modify or cancel, or require
any notice under, any material contract, agreement, lease, sublease, license,
sublicense, franchise, permit, indenture, agreement for borrowed money,
instrument of indebtedness, Security Interest or other arrangement to which
Buyer is a party or by which it is bound or to which its assets are subject,
except where such violations, conflicts, breaches, defaults or other events
would not result in a material adverse effect or materially delay or interfere
with the consummation of the transactions contemplated hereby.
4.4. NO CONSENTS. Buyer is not required to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any
government, governmental agency or court, or any other Person in order for the
parties to consummate the transactions contemplated by this Agreement except for
such notices, filings, authorizations, consents or approvals which, if not
obtained or made, would not have a material adverse effect.
4.5. BROKERS' FEES. Buyer has no Liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which any of the Stockholders
are or could become liable or obligated.
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4.6. FULL DISCLOSURE. None of the representations and warranties of
Buyer contained herein, or any other statements by Buyer in this Agreement,
contains any untrue statement of a material fact or omits a material fact
necessary to make the statements contained herein or therein, in light of the
circumstances in which they were made, not misleading. This Agreement, including
the schedules hereto, together with all other documents and information made
available by Buyer to the Company and their representatives pursuant hereto,
present fairly the business and operations of Buyer.
ARTICLE
5.
COVENANTS PRIOR TO CLOSING
5.1. CONDUCT OF OPERATIONS. Prior to the Closing Date, the Company will
not engage and the Stockholders will not cause the Company to engage in any
practice, take or omit to take any action, or enter into any transaction,
arrangement or contract outside the ordinary course of business and not in
compliance with the terms of this Agreement. Prior to the Closing Date, it will
continue to operate the Business in the ordinary course of business, and will
preserve, and enforce, in the ordinary course of business, all rights with
respect thereto, including, but not limited to, its present operations, physical
facilities, working conditions, and relationships with lessors, licensors,
suppliers, customers and employees.
5.2. NOTICE OF CHANGES. Between the Agreement Date and the Closing
Date, the Company and each Stockholder agree to notify Buyer in writing promptly
of any occurrence or state of facts which will result in any of the warranties
and representations contained in Article 3 hereof not being true and correct in
any material respect if restated as of the Closing Date.
5.3. CONFIDENTIALITY. Prior to the Closing, Buyer will treat and hold
as confidential all of the confidential information of the Business disclosed to
Buyer by the Company and the Stockholders (the "CONFIDENTIAL INFORMATION"), and
shall refrain from using or disclosing any of the Confidential Information
except (a) to authorized representatives of the Company, or (b) to counsel or
other advisers (provided such advisers other than counsel agree to comply with
the confidentiality provisions of this Section 5.3), unless disclosure is
required by law or order of any governmental authority under color of law and
except to the extent Buyer is required to disclose the existence and nature of
this Agreement pursuant to the United States securities laws. In the event that,
prior to the Closing, Buyer is requested or required (by oral question or
written request for information or documents in any legal proceeding,
interrogatory, subpoena, civil investigative demand, or similar process) to
disclose any Confidential Information, Buyer will notify the Company promptly of
the request or requirement so that the Company may seek an appropriate
protective order or waive compliance with the provisions of this Section 5.3.
If, in the absence of a protective order or the receipt of a waiver hereunder,
Buyer is, on the advice of counsel, compelled to disclose any Confidential
Information to any tribunal or else stand liable for contempt, Buyer may
disclose the Confidential Information to the tribunal; provided, however, that
Buyer shall, upon the request of the Company, exert all reasonable efforts to
obtain, at the reasonable request of the Company, an order or other assurance
that confidential treatment will be accorded to such portion of the Confidential
Information required to be disclosed as the Company shall reasonably designate.
Notwithstanding the foregoing, Buyer shall be entitled to make any public
disclosure made
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necessary by Buyer's status as a subsidiary of a public company or as otherwise
required under agreements with its lenders and investors.
ARTICLE
6.
CONDITIONS TO OBLIGATION OF BUYER
The obligations of Buyer to consummate the transactions contemplated
hereby are subject to satisfaction at or prior to the Closing Date of the
following conditions:
6.1. REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Stockholders contained in this Agreement shall be true and correct in all
material respects as of the date when made and on the Closing Date as if made
again on the Closing Date;
6.2. OBLIGATIONS. Each of the Stockholders shall have performed and
complied in all material respects with all of their respective covenants, duties
and obligations hereunder through the Closing Date;
6.3. STOCKHOLDERS' CERTIFICATE. Buyer shall have received a certificate
dated the Closing Date, signed and verified by the Stockholders certifying in
such detail as Buyer and its counsel may request, that the conditions specified
in Sections 6.1 and 6.2 have been fulfilled.
6.4. THIRD PARTY CONSENTS. All of the third party consents and
approvals set forth on Schedule 3.6 of the Company Disclosure Schedule shall
have been obtained by the Stockholders and delivered to Buyer;
6.5. NO ADVERSE CHANGE. Since December 31, 1997, there shall have
occurred no Material Adverse Change in the Business, operation results,
financial condition, operations or prospects of the Business;
6.6. TERMINATIONS. All agreements between and among the Stockholders of
the Company shall have terminated by a written instrument satisfactory in form
and substance to Buyer and its counsel, without payment by or liability to the
Company;
6.7. RESIGNATIONS. Stockholders shall have delivered to Buyer, except
as otherwise requested by Buyer, the written resignations of all of the officers
and directors of the Company.
Buyer may waive any condition, in whole or in part, specified in this
Article 6 if it executes a writing so stating at or prior to the Closing Date.
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ARTICLE
7.
CONDITIONS TO OBLIGATIONS OF THE STOCKHOLDERS
The obligations of the Stockholders to consummate the transactions
contemplated hereby are subject to satisfaction at or prior to the Closing Date
of the following conditions:
7.1. REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Buyer shall be true and correct in all material respects as of the date when
made and on the Closing Date as if made again on the Closing Date;
7.2. OBLIGATIONS. Buyer shall have performed and complied with all of
its covenants, duties and obligations hereunder through the Closing Date;
7.3. BUYER'S CERTIFICATE. Buyer shall have delivered to the
Stockholders a certificate signed by an officer of Buyer to the effect that each
of the conditions specified above in Sections 7.1 and 7.2 have been satisfied in
all respects;
7.4. CORPORATE RESOLUTIONS. Buyer shall have delivered to the
Stockholders (i) a copy of the text of the resolutions by which the corporate
action on the part of Buyer necessary to approve this Agreement were taken,
certified by Buyer's corporate secretary and (ii) an incumbency certificate
signed by an officer of Buyer certifying the signature and office of each
officer executing this Agreement or any other agreement, certificate or other
instrument executed pursuant hereto;
The Stockholders may waive, in whole or in part, any condition
specified in this Article 7 if they execute a writing so stating at or prior to
the Closing Date.
ARTICLE
8.
TERMINATION
8.1. TERMINATION. Either the Stockholders or Buyer may terminate this
Agreement at any time prior to the Closing Date as provided below:
(a) the Stockholders and Buyer may terminate this Agreement by
mutual written consent;
(b) Buyer may terminate this Agreement upon written notice to the
Stockholders in the event any of the Stockholders or the Company have
breached any representation, warranty or covenant contained in this
Agreement which has not been cured prior to such termination upon at
least 10 days' prior written notice to the Stockholders; or
(c) the Stockholders may terminate this Agreement upon written
notice to Buyer in the event Buyer has breached any representation,
warranty or covenant of Buyer contained in
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this Agreement which has not been cured prior to such termination upon
at least 10 days' prior written notice to Buyer.
8.2. EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided above, this Agreement will forthwith become void and there
will be no further liability on the part of the Buyer or the Stockholders,
except for breaches of this Agreement prior to the time of such termination, and
except that the covenants and agreements set forth in Sections 5.3 and 12.9 and
this Section 8.2 shall survive such termination indefinitely.
ARTICLE
9.
CLOSING
9.1. TIME AND PLACE OF CLOSING. The consummation of the purchase and
sale of the Stock and the related transactions and deliveries herein provided
for ("CLOSING") shall take place at 10:00 a.m., local time, at a date specified
by Buyer as soon as practicable after all of the conditions set forth in
Articles 6 and 7 shall have been satisfied, or at such other time or place as
the parties hereto may mutually agree. The date and time of Closing are referred
to herein as the "CLOSING DATE."
9.2. DOCUMENTS TO BE DELIVERED BY THE STOCKHOLDERS. At the Closing, the
following instruments and documents shall be delivered or provided to Buyer by
the Stockholders:
(a) Certificates evidencing all of their respective shares of the
Stock, together with assignments separate from certificates or duly
endorsed in a form sufficient to effect the transfers thereof to Buyer;
(b) The Stockholders shall deliver each of the documents,
instruments or other items specified in Sections 6.3 and 6.4; and
(c) The Stockholders shall deliver such other documents or
instruments as Buyer may reasonably request in order to give effect to
the transactions contemplated hereby.
9.3. DOCUMENTS TO BE DELIVERED BY THE BUYER. At the Closing, the
following instruments, documents shall be delivered or provided to the
Stockholders by Buyer:
(a) Buyer shall deliver a bank draft or certified checks or
confirmation of the wire transfer of funds in the amount set forth in
Section 2.1 hereof;
(b) Buyer shall deliver each of the documents, instruments and
other items specified in Sections 7.3 and 7.4; and
(c) Buyer shall deliver such other documents or instruments as the
Company may reasonably request in order to give effect to the
transactions contemplated hereby.
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ARTICLE
10.
POST-CLOSING OBLIGATIONS OF THE PARTIES
10.1. FURTHER OBLIGATIONS OF THE PARTIES. Each Party shall execute all
certificates, instruments and other documents and take all actions reasonably
requested by the other Party to effectuate the purposes of this Agreement and to
consummate and evidence the consummation of the transactions herein provided
for.
10.2. NO INTERFERENCE. None of the Stockholders shall in any manner
take or cause to be taken any action which is designed or intended, or might be
reasonably anticipated to have the effect of discouraging customers,
contractors, suppliers, referral sources, governmental agencies, insurance
companies, lessors, consultants, advisors and other business associates from
maintaining the same business relationships with the Company or the Business
after the date of this Agreement as were maintained with the Business prior to
the date of this Agreement, and the Stockholders will use their best efforts to
insure that such business relationships are maintained.
ARTICLE
11.
SURVIVAL OF WARRANTIES AND INDEMNIFICATION
11.1. SURVIVAL. All of the representations and warranties of the
Stockholders contained in Article 3 hereof, shall survive the Closing
(regardless of any knowledge or investigation of Buyer, and shall continue in
full force and effect for a period of one (1) year thereafter provided that the
representations and warranties concerning title to the shares of Stock as set
forth in Section 3.1, Taxes and Plans shall survive to the applicable statutes
of limitation with respect thereto (the "SURVIVAL PERIOD"), after which such
representations and warranties shall terminate and have no further force or
effect. All of the representations and warranties of Buyer contained in Article
4 hereof (the "BUYER REPRESENTATIONS") shall survive the Closing (regardless of
any Knowledge or investigation of the Stockholders) and shall continue in full
force and effect until the expiration of the Survival Period. All covenants of
the Parties in this Agreement shall survive the Closing and shall continue in
full force thereafter.
11.2. INDEMNIFICATION BY THE STOCKHOLDERS. Subject to Section 11.3,
each of the Stockholders shall, jointly and severally, indemnify, defend and
hold Buyer, its officers, directors, stockholders, employees and agents harmless
from and against the entirety of any Adverse Consequences Buyer may suffer,
sustain or become subject to, through and after the date of the claim for
indemnification, including any Adverse Consequences Buyer may suffer after the
end of the Survival Period with respect to claims made within such period
("BUYER INDEMNIFIABLE LOSSES"), resulting from, arising out of, relating to, in
the nature of, or caused by: (i) any breach or inaccuracy of any representation
or warranty of the Stockholders set forth in this Agreement or in the Company
Disclosure Schedule, Exhibits or certificates delivered by them in connection
herewith; (ii) any nonfulfillment or breach of any covenant or agreement on the
part of the Stockholders set forth in this Agreement; (iii) without limiting the
generality of the foregoing, any claim by any Person asserting any ownership
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interest in or rights to acquire any capital stock in the Company; (iv) any
claims by third parties made against any of the Company or Buyer after the
Closing Date arising from or relating to any action, inaction, event, occurrence
or circumstance occurring or existing prior to the Closing to the extent not
provided for in the Latest Balance Sheet, and (v) the costs and expense of
defending any action, demand or claim by any third-party against or affecting
Buyer which, if true or successful, would give rise to a breach of
representations, warranties or covenants of the Stockholders, even if such
action, demand or claim ultimately proves to be untrue or unfounded.
11.3. LIMITS ON STOCKHOLDERS' INDEMNIFICATION. The obligation of the
Stockholders to indemnify Buyer under Section 11.2 above shall be subject to the
following:
(a) No Stockholder shall have any obligation to indemnify Buyer
from and against any Buyer Indemnifiable Losses unless Buyer makes a
written claim to the Stockholders within the Survival Period with
respect to the breach which gives rise to such Buyer Indemnifiable
Losses.
(b) Notwithstanding anything to the contrary contained herein, in
no event shall the Stockholders have any obligation to indemnify Buyer
for an amount which in the aggregate exceeds the Purchase Price.
11.4. INDEMNIFICATION BY BUYER. Subject to Section 11.5, Buyer shall
indemnify, defend and hold the Stockholders harmless from and against the
entirety of any Adverse Consequences the Stockholders may suffer, sustain or
become subject to, through and after the date of the claim for indemnification,
including any Adverse Consequences the Stockholders may suffer after the end of
the Survival Period with respect to claims made within such period
("STOCKHOLDERS INDEMNIFIABLE LOSSES"), resulting from, arising out of, relating
to, in the nature of, or caused by: (i) any breach or inaccuracy of any
representation or warranty of Buyer set forth in this Agreement, or in the
certificates delivered by them in connection herewith; or (ii) any
nonfulfillment or breach of any covenant or agreement on the part of Buyer set
forth in this Agreement.
11.5. LIMITS ON BUYER'S INDEMNIFICATION. The obligation of Buyer to
indemnify the Stockholders under Section 11 above shall be subject to the
following:
(a) Buyer shall have no obligation to indemnify the Stockholders
from and against any Stockholders Indemnifiable Losses unless the
Stockholders make a written claim within the Survival Period with
respect to the breach of which gives rise to such Stockholders
Indemnifiable Losses.
11.6. MATTERS INVOLVING THIRD PARTIES.
(a) If any third party shall notify any Party (the "INDEMNIFIED
PARTY") with respect to any matter (a "THIRD PARTY CLAIM") which may
give rise to a claim by such Indemnified Party for indemnification
against any other Party (the "INDEMNIFYING PARTY") under this
Agreement, then the Indemnified Party shall notify each Indemnifying
Party thereof promptly; provided, however, that no delay on the part of
the Indemnified Party in notifying any Indemnifying Party
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shall relieve the Indemnifying Party from any liability or obligation
hereunder unless (and then solely to the extent that) the Indemnifying
Party is damaged thereby.
(b) Any Indemnifying Party will have the right to assume the
defense of the Indemnified Party against the Third Party Claim with
counsel of the Indemnifying Party's choice, reasonably satisfactory to
the Indemnified Party, so long as (i) the Indemnifying Party notifies
the Indemnified Party, within fifteen (15) days after the Indemnified
Party has given notice of the Third Party Claim to the Indemnifying
Party (or by such earlier date as may be necessary under applicable
procedural rules in order to file a timely appearance and response)
that the Indemnifying Party is assuming the defense of such Third Party
Claim and will indemnify the Indemnified Party against such Third Party
Claim in accordance with the terms and limitations of this Section
11.6(b), (ii) the Indemnifying Party provides the Indemnified Party
with reasonable evidence that the Indemnifying Party will have the
financial resources to defend against the Third Party Claim and fulfill
its indemnification obligations hereunder with respect thereto, and
(iii) the Indemnifying Party conducts the defense of the Third Party
Claim actively and diligently.
(c) So long as the conditions set forth in Section 11.6(b) are and
remain satisfied, then (i) the Indemnifying Party may conduct the
defense of the Third-Party Claim in accordance with Section 11.6(b);
(ii) the Indemnified Party may retain separate co-counsel at its sole
cost and expense (except that the Indemnifying Party will be
responsible for the fees and expenses of the separate co-counsel to the
extent the Indemnified Party reasonably concludes that the counsel the
Indemnifying Party has selected has an actual or potential conflict of
interest), (iii) the Indemnified Party will not consent to the entry of
any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnifying Party
(not to be unreasonably withheld, conditioned or delayed), (iv) the
Indemnifying Party will not consent to the entry of any judgment with
respect to the matter, or enter into any settlement, which either
imposes an injunction or other equitable relief upon the Indemnified
Party or does not include a provision whereby the plaintiff or claimant
in the matter releases the Indemnified Party from all Liability with
respect thereto, and (v) the Indemnified Party shall, at the
Indemnifying Party's reasonable request and at the Indemnifying Party's
expense, cooperate in the defense of the matter. In the event that the
conditions in Section 11.6(b) are not satisfied in the case of any
Third Party Claim, then the Indemnified Party may assume control of the
defense of such claim; provided that, -------- except as provided in
Section 11.6(d) below, the Indemnified Party may not enter into any
settlement or consent to the entry of any judgment with respect to the
matter without the consent of the Indemnifying Party, which consent
shall not be unreasonably withheld or delayed.
(d) If any injunction or other equitable relief is entered against
the Indemnified Party during the course of any Third Party Claim, if
brought during the General Survival Period, and such injunction or
equitable relief is not removed within ten (10) days (an "INDEMNIFIED
PARTY CONTROLLED CLAIM"), then (i) the Indemnified Party may assume
control of the defense of, and, subject to the provisions of this
Section 11.6(d), consent to the entry of any judgment or enter into any
settlement with respect to, such Indemnified Party Controlled Claim,
and (ii) the Indemnifying Parties will remain responsible in accordance
with the terms and limitations of this
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Section 11.6 for any Buyer Indemnifiable Losses which Buyer may suffer
arising out of or relating to such Indemnified Party Controlled Claim.
The Indemnified Party may consent to the entry of any judgment or enter
into any settlement of any Indemnified Party Controlled Claim in any
manner it may deem appropriate, and the Indemnifying Party shall not be
entitled to raise any objection in any other forum or proceeding to the
amount or appropriateness of any such judgment or settlement.
ARTICLE
12.
MISCELLANEOUS PROVISIONS
12.1. NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
12.2. ENTIRE AGREEMENT. Except as otherwise specifically provided
herein, this Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereof and supersedes any prior communications,
understandings, agreements, or documents with regard thereto.
12.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign this Agreement or any of
such Party's rights, interests, or obligations hereunder without the prior
written approval of the other Parties provided that Stockholders shall have the
right to assign rights to receive payments hereunder to family members or family
partnerships or trusts for estate planning purposes.
12.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
12.5. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given (i) three (3)
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid; (ii) one day after receipt is electronically
confirmed, if sent by fax (provided that a hard copy shall be promptly sent by
first class mail); or (iii) one (1) business day following deposit with a
recognized national overnight courier service for next day delivery, charges
prepaid, and, in each case, addressed to the intended recipient as set forth
below:
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If to Buyer: With a Copy to:
Specialty Transportation Services, Inc. Sachnoff & Weaver, Ltd.
5979 McCasland Avenue 30 South Wacker Drive
Portage, Indiana 46368 Suite 2900
Attn: Barbara Milligan Chicago, Illinois 60606
Fax: 219/764-4747 Attn: Joel R. Schaider
Fax: 312/207-6400
If to the Stockholders: And a Copy To:
Gary I. Goldberg Craig D. Stepnicka, Esq.
7418 Oak Avenue 2311 W. 22nd Street
Gary, Indiana 46403 Suite 207
Fax: 219/938-8235 Oak Brook, Illinois 60523
Fax: 630/571-3821
Michael Sizemore
2155 D. Northbridge Avenue
Baltimore, Maryland 21226
Any Party may give any notice, request, demand, claim, or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is delivered to the individual for whom it is intended. Any Party may
change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
12.6. GOVERNING LAW; EXCLUSIVE JURISDICTION. This Agreement shall be
governed by and construed in accordance with the domestic laws of the State of
Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Illinois. Stockholders agree that any legal action or proceeding
arising out of or relating to this Agreement may be instituted in the United
States District Court of the Northern District of Illinois, Eastern Division, at
Buyer's discretion. The Stockholders irrevocably and unconditionally submit to
the jurisdiction of such court in any such action or proceeding and expressly
waive any objection relating to the basis for personal or in rem jurisdiction or
to venue which they now or hereafter have in any such action or proceeding. The
Stockholders agree that service of process may be made by mailing a copy of the
summons to each of them at their addresses set forth above or at such other
addresses which the Stockholders may subsequently specify to Buyer by written
notice.
12.7. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by Buyer
and each of the Stockholders. No waiver by any Party of any default,
misrepresentation, breach of warranty or covenant hereunder,
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whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or affect
in any way any rights arising by virtue of any prior or subsequent occurrence of
such kind.
12.8. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the invalid or unenforceable term or provision
in any other situation or in any other jurisdiction. If a final judgment of a
court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability shall have the power to reduce
the scope, duration, or area of the term or provision, to delete specific words
or phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed.
12.9. EXPENSES. Except as otherwise explicitly provided in this
Agreement, each of Buyer and the Stockholders will bear his or its own direct
and indirect costs and expenses (including fees and expenses of legal counsel,
audit and accounting fees, investment bankers, brokers or other representatives
or consultants) incurred in connection with the negotiation, preparation and
execution of this Agreement and the transactions contemplated hereby, whether or
not such transactions are consummated. The Stockholders represent, warrant and
covenant that the Company shall not pay or incur any Liability for, and the
Company has not paid or incurred any Liability for, any fees or expenses of the
Stockholders associated with the transactions contemplated hereby, and the
Stockholders agree that the Purchase Price will be reduced dollar for dollar by
any amount by which any of the Company pay or are so charged.
12.10. CONSTRUCTION. The Parties have jointly participated in the
negotiation and drafting of this Agreement. In the event of an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumptions or burdens of proof
shall arise favoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any Federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
Parties intend that each representation, warranty and covenant contained herein
shall have independent significance. If any Party has breached any
representation, warranty or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
Notwithstanding the foregoing, in no event shall any party be entitled to
"double count" or recover twice with respect to any matter hereunder. Each
defined term used in this Agreement has a comparable meaning when used in its
plural or singular form. Each gender-specific term used herein has a comparable
meaning whether used in a masculine, feminine or gender-neutral form. The term
"include" and its derivatives shall have the same construction as the phrase
"include, without limitation," and its derivatives. The section headings
contained in this Agreement are inserted for convenience or reference only and
shall not affect in any way the meaning or interpretation of this Agreement.
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12.11. INCORPORATION OF EXHIBITS AND SCHEDULES. All Exhibits and
Schedules hereto are incorporated herein by reference and made a part hereof.
12.12. REMEDIES. Each of the Parties acknowledges and agrees that each
other Party would be damaged irreparably in the event any of the provisions of
this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that each other
Party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of
competent jurisdiction, in addition to any other remedy to which it may be
entitled, at law or in equity. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies of
law or inequity.
12.13. ENFORCEMENT EXPENSES. In the event of any dispute arising out of
the subject matter of this Agreement, the prevailing Party shall recover, in
addition to any other damages assessed, its reasonable attorneys' fees and costs
incurred in resolving such dispute.
12.14. DIRECTLY OR INDIRECTLY. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether the action in question
is taken by such Person, directly or indirectly, through one or more
intermediaries.
12.15. TIME OF THE ESSENCE. Time shall be of the essence of this
Agreement and of every part hereof.
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* * * * *
IN WITNESS WHEREOF, the Parties hereto have executed this Stock Purchase
Agreement as of the date first above written.
BUYER:
-----
SPECIALTY TRANSPORTATION SERVICES, INC.
By: /s/ Barbara A. Milligan
-------------------------------------------
Name: Barbara A. Milligan
Title: Executive Vice President
THE STOCKHOLDERS:
----------------
/s/ Gary I. Goldberg
----------------------------------------------
Gary I. Goldberg
/s/ Michael Sizemore
----------------------------------------------
Michael Sizemore
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SCHEDULE 3.5
NONCONTRAVENTION
None.
32
SCHEDULE 3.6
CONSENTS
Order dated June 4, 1998 (Docket No. MA04980009) approving the Petition for
Authority to Transfer Capital Stock filed with the Department of Environmental
Protections Division of Solid and Hazardous Waste, State of New Jersey.
33
SCHEDULE 3.9
FINANCIAL STATEMENTS
34
SCHEDULE 3.10
RECENT EVENTS
None.
35
SCHEDULE 3.11
UNDISCLOSED LIABILITIES
None.
36
SCHEDULE 3.12(C)
TAX RETURNS
None.
37
SCHEDULE 3.17
LITIGATION
None.