<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): February 14, 1995
INTERTRANS CORPORATION
- - - - --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Texas 0-13081 75-1605156
- - - - --------------------------------------------------------------------------------
(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
125 E. John Carpenter Freeway, Suite 900, Irving, Texas 75062
- - - - --------------------------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (214) 830-8888
no change
- - - - --------------------------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
TOTAL PAGES: 68.
EXHIBIT INDEX ON PAGE 5.
<PAGE> 2
ITEM 5. OTHER EVENTS.
On February 14, 1995, Intertrans Corporation (the "Registrant")
entered into an Agreement and Plan of Reorganization dated as of February 14,
1995, by and among Fritz Companies, Inc., a Delaware corporation ("Fritz"),
Fritz Air Freight, a wholly owned subsidiary of Fritz ("Merger Sub"), and the
Registrant (the "Plan of Reorganization") which provides for the merger (the
"Merger") of Merger Sub with and into the Registrant. A copy of the Plan of
Reorganization is attached hereto as Exhibit 2.1. Following the Merger, the
Registrant will be held as a wholly owned subsidiary of Fritz.
In the Merger, each outstanding share of the Registrant's common stock
will be converted into the right to receive that fraction of a share of Fritz's
common stock as is equal to the "Exchange Ratio," which shall be determined as
follows:
(i) if the Average Fritz Trading Price (as defined below) is at
least equal to $46.15 but not greater than $47.37, the
Exchange Ratio will equal the quotient of (A) $18.00 divided
by (B) the Average Fritz Trading Price, calculated to the
nearest one-one thousandth of a share;
(ii) if the Average Fritz Trading Price is at least equal to $41.00
but less than or equal to $46.15, the Exchange Ratio will
equal 0.390;
(iii) if the Average Fritz Trading Price is greater than or equal to
$47.37 but not greater than $55.00, the Exchange Ratio will
equal 0.380;
(iv) if the Average Fritz Trading Price is less than $41.00, the
Registrant will have the right to terminate the Plan of
Reorganization unless Fritz elects to increase the Exchange
Ratio to a fraction equal to (A) $16.00 divided by (B) such
Average Fritz Trading Price, calculated to the nearest one-one
thousandth of a share; or
(v) if the Average Fritz Trading Price is greater than $55.00,
Fritz will have the right to terminate the Plan of
Reorganization unless the Registrant elects to decrease the
Exchange Ratio to a fraction equal to (A) $20.90 divided by
(B) such Average Fritz Trading Price, calculated to the
nearest one-one thousandth of a share.
As used above, the term "Average Fritz Trading Price" means the
arithmetic mean of each of the closing sale prices per share of Fritz's common
stock on the Nasdaq National Market for each of the twenty (20) trading days
ending on the fourth trading day immediately preceding the scheduled date of
the first to occur of the shareholders' meetings of Fritz and the Registrant
convened to approve the Merger and the issuance of shares in connection
therewith.
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<PAGE> 3
All outstanding options to purchase the Registrant's common stock will
be assumed by Fritz and converted into options to purchase Fritz common stock.
Following the Merger, holders of the Registrant's common stock will own
approximately 26% of the outstanding common stock of Fritz. It is intended
that the transaction qualify as a tax-free reorganization for federal income
tax purposes and a "pooling of interests" for accounting purposes.
The Merger is subject to various conditions including, but not limited
to, (i) the effectiveness of a registration statement under the Securities Act
of 1933 registering the issuance of the shares of Fritz common stock in the
Merger, (ii) the approval of the transaction by the shareholders of the
Registrant and (iii) the approval of the issuance of common stock by
stockholders of Fritz.
Following the Merger, Lynn C. Fritz, Chairman of the Board, President
and Chief Executive Officer of Fritz, will remain in such positions. Carsten
S. Andersen, the current President of the Registrant, will become Executive
Vice President of Fritz and Managing Director of Fritz's air freight operations
and will also be appointed to Fritz's Board of Directors. Sam N. Wilson,
currently the Chairman of the Board and Chief Executive Officer of the
Registrant, will act in an advisory capacity to Fritz's Board of Directors.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(A) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED.
Not applicable.
(B) PRO FORMA FINANCIAL INFORMATION.
Not applicable.
(C) EXHIBITS.
EXHIBIT NO. DESCRIPTION
2.1 Agreement and Plan of Reorganization dated as
of February 14, 1995, by and among Fritz
Companies, Inc., Fritz Air Freight and
Intertrans Corporation.
-3-
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Fritz has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
INTERTRANS CORPORATION
----------------------
(Registrant)
DATE: February 21, 1995 BY: /s/ Sam N. Wilson
----------------- -------------------------------
Sam N. Wilson
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
DATE: February 21, 1995 BY: /s/ John R. Witt
----------------- --------------------------------
John R. Witt
Chief Financial Officer
(Principal Financial Officer)
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INTERTRANS CORPORATION
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE NUMBER
- - - - ----------- ----------- -----------
<S> <C> <C>
2.1 Agreement and Plan of Reorganization dated as of 6
February 14, 1995, by and among Fritz Companies,
Inc., Fritz Air Freight and Intertrans Corporation
</TABLE>
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<PAGE> 1
Exhibit No. 2.1
CONFORMED
================================================================================
AGREEMENT AND PLAN OF REORGANIZATION
dated as of
FEBRUARY 14, 1995
by and among
FRITZ COMPANIES, INC.,
FRITZ AIR FREIGHT
and
INTERTRANS CORPORATION
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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<S> <C> <C>
ARTICLE I THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.01 The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Conversion of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.03 Exchange of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.04 Dissenting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.05 Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.06 Intertrans Stock Option Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.07 Registration of Intertrans Stock Option Plans . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.08 Benefits Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II THE SURVIVING CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.01 Articles of Incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.02 Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.03 Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF INTERTRANS . . . . . . . . . . . . . . . . . . . . . . . 8
3.01 Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.02 Corporate Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.03 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.04 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.05 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.06 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.07 SEC Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.08 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.09 Disclosure Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.10 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.11 No Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.14 Employee Benefit Plans; ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.15 Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.16 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.18 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.19 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
i.
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<TABLE>
<CAPTION>
Page
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3.20 Trademarks, Tradenames, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.21 Finders' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.22 Opinion of Financial Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF FRITZ . . . . . . . . . . . . . . . . . . . . . . 21
4.01 Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.02 Corporate Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.03 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.04 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.05 Capitalization of Fritz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.06 Organization of Merger Sub . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.07 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.08 SEC Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.09 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.10 Disclosure Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.11 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.12 No Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.13 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.15 Employee Benefit Plans; ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.16 Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.17 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.18 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.19 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.20 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.21 Trademarks, Tradenames, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.22 Finders' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.23 Opinion of Financial Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE V COVENANTS OF INTERTRANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.01 Conduct of Intertrans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.02 Shareholders' Meeting; Proxy Material . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.03 Access to Financial and Operation Information . . . . . . . . . . . . . . . . . . . . . . 33
5.04 Other Offers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.05 Maintenance of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.06 Compliance with Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.07 Notices of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.08 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
</TABLE>
ii.
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<TABLE>
<CAPTION>
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5.09 Compliance with the Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VI COVENANTS OF FRITZ AND MERGER SUB . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.01 Conduct of Fritz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.02 Stockholders' Meeting; Proxy Material; Registration Statement . . . . . . . . . . . . . . 37
6.03 Access to Financial and Operation Information . . . . . . . . . . . . . . . . . . . . . . 38
6.04 Maintenance of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.05 Compliance with Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.06 Notices of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.07 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.08 Obligations of Merger Sub . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.09 Notice to Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VII COVENANTS OF FRITZ AND INTERTRANS . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.01 Advice of Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.02 Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.03 Actions Contrary to Stated Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.04 Certain Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.05 Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.06 Satisfaction of Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.07 Stockholders' Meeting Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VIII CONDITIONS TO THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.01 Conditions to Obligations of Fritz and Merger Sub . . . . . . . . . . . . . . . . . . . . 41
8.02 Conditions to Obligations of Intertrans . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.03 Conditions to Obligations of Each Party . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE IX TERMINATION OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.01 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.02 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
10.01 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
10.02 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.03 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
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10.04 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.05 Governing Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.06 Binding upon Successors and Assigns; Assignment . . . . . . . . . . . . . . . 49
10.07 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.08 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.09 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.10 Amendment and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.11 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.12 Construction of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
</TABLE>
EXHIBITS
Exhibit 1.01 Form of Articles of Merger
Exhibit 5.09 Form of Affiliates Agreement
iv.
<PAGE> 6
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement")
is entered into as of the 14th day of February, 1995, by and among FRITZ
COMPANIES, INC., a Delaware corporation ("Fritz"), FRITZ AIR FREIGHT, a
California corporation and a wholly owned subsidiary of Fritz ("Merger Sub"),
and INTERTRANS CORPORATION, a Texas corporation ("Intertrans").
RECITALS
A. The Boards of Directors of Fritz, Merger Sub and
Intertrans have each determined to engage in the transactions contemplated
hereby, pursuant to which (i) Merger Sub will merge (the "Merger") with and
into Intertrans, (ii) each share of common stock, no par value, of Intertrans
("Intertrans Common Stock") (except for shares of Intertrans Common Stock owned
by Intertrans, Fritz or Merger Sub and shares of Intertrans Common Stock as to
which appraisal rights, if available, shall have been perfected) shall be
converted into the right to receive a fraction of a share of common stock, par
value $.01 per share, of Fritz ("Fritz Common Stock") in the manner herein
described, and (iii) the capital stock of Merger Sub shall be converted into
shares of Intertrans Common Stock, all upon the terms and subject to the
conditions set forth herein.
B. The Board of Directors of Intertrans has approved,
and has resolved, subject to the terms of this Agreement, to recommend that
shareholders of Intertrans approve, the Merger, this Agreement and the Articles
of Merger (as defined in Section 1.01(b)).
C. The Board of Directors of Fritz has approved the
Merger, this Agreement and the Articles of Merger, and has resolved to
recommend that stockholders of Fritz approve the issuance of Fritz Common Stock
in connection with the Merger. Fritz, as the sole shareholder of Merger Sub,
has approved the Merger, this Agreement and the Articles of Merger.
D. The parties intend for the transactions contemplated
by this Agreement to qualify as a plan of reorganization in accordance with the
provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), and to be accounted for as a "pooling of interests" pursuant to
Opinion No. 16 of the Accounting Principles Board.
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements set forth herein,
the parties agree as follows:
1.
<PAGE> 7
ARTICLE I
THE MERGER
SECTION 1.01 THE MERGER.
(a) Subject to the terms and conditions of this
Agreement, Merger Sub shall be merged with and into Intertrans in accordance
with the Texas Business Corporation Act ("Texas Law") and the General
Corporation Law of the State of California ("California Law"), whereupon the
separate existence of Merger Sub shall cease, and Intertrans shall be the
surviving corporation (the "Surviving Corporation").
(b) As soon as practicable after satisfaction or, to
the extent permitted hereunder, waiver of all conditions to the Merger,
Intertrans and Merger Sub shall file articles of merger, in substantially the
form attached hereto as Exhibit 1.01 (the "Articles of Merger"), in the Office
of the Secretary of State of the State of Texas and the Office of the Secretary
of State of the State of California and make all other filings or recordings
required by Texas Law and California Law in connection with the Merger. The
Merger shall become effective at such time as the Articles of Merger are duly
filed with the Office of the Secretary of State of the State of Texas, such
office issues a certificate of merger, and the filings required under
California Law to be made with the Office of the Secretary of State of the
State of California are made (the "Effective Time"). The date on which the
Effective Time shall occur is referred to herein as the "Effective Date."
(c) From and after the Effective Time, the Surviving
Corporation shall possess all the rights, privileges, powers and franchises and
be subject to all of the restrictions, disabilities and duties of Intertrans
and Merger Sub, all as provided under Texas Law and California Law.
SECTION 1.02 CONVERSION OF SHARES.
(a) At the Effective Time:
(i) each share of common stock of Merger Sub
outstanding immediately prior to the Effective Time shall,
automatically and without any action on the part of the holder
thereof, be converted into one share of common stock, no par value, of
the Surviving Corporation;
(ii) each share of Intertrans Common Stock held
by Intertrans as treasury stock or owned by Fritz or any Subsidiary
(defined in Section 3.06 below) of Fritz immediately prior to the
Effective Time shall, automatically and without any action on the part
of the holder thereof, be cancelled and retired and all rights in
respect thereof shall cease to exist without any conversion thereof or
payment therefor; and
2.
<PAGE> 8
(iii) each share of Intertrans Common Stock
outstanding immediately prior to the Effective Time shall, except as
otherwise provided in clause (ii) above or as provided in Section 1.04
with respect to shares of Intertrans Common Stock as to which
appraisal rights, if available, shall have been exercised,
automatically and without any action on the part of the holder
thereof, cease to be outstanding and be converted into the right to
receive that fraction of a share of Fritz Common Stock as is equal to
the "Exchange Ratio," which shall be determined in the manner provided
below.
(b) For purposes of this Agreement, the "Exchange
Ratio" shall be calculated as follows:
(i) if the Average Fritz Trading Price (as
defined below) is at least equal to $46.15 but not greater than
$47.37, the Exchange Ratio shall equal the quotient of (A) $18.00
divided by (B) the Average Fritz Trading Price, calculated to the
nearest one-one thousandth of a share;
(ii) if the Average Fritz Trading Price is at
least equal to $41.00 but less than or equal to $46.15, the Exchange
Ratio shall equal 0.390;
(iii) if the Average Fritz Trading Price is
greater than or equal to $47.37 but not greater than $55.00, the
Exchange Ratio shall equal 0.380;
(iv) if the Average Fritz Trading Price is less
than $41.00, Intertrans shall have the right to terminate this
Agreement in the manner provided in subsection (c) below unless Fritz
shall elect, in the manner provided in subsection (c) below, to
increase the Exchange Ratio to a fraction equal to (A) $16.00 divided
by (B) such Average Fritz Trading Price, calculated to the nearest
one-one thousandth of a share.
(v) if the Average Fritz Trading Price is
greater than $55.00, Fritz shall have the right to terminate this
Agreement in the manner provided in subsection (c) below unless
Intertrans shall elect, in the manner provided in subsection (c)
below, to decrease the Exchange Ratio to a fraction equal to (A)
$20.90 divided by (B) such Average Fritz Trading Price, calculated to
the nearest one-one thousandth of a share.
As used herein, the term "Average Fritz Trading Price" shall mean the
arithmetic mean of each of the closing sales prices per share of Fritz Common
Stock on the Nasdaq National Market for each of the 20 trading days ending on
the fourth trading day immediately preceding the scheduled date of the first of
the shareholder meetings contemplated by Sections 5.02 and 6.02(b) (such date,
the "Determination Date").
(c) In the event that Intertrans shall elect to
terminate this Agreement in the circumstances contemplated by clause (iv) of
subsection (b) above or in the event that Fritz shall elect to terminate this
Agreement in the circumstances contemplated by clause (v) of such subsection
(b), then the party initiating the termination (the "Terminating Party") shall
give notice of termination (the "Termination Notice") to the other party hereto
(the "Receiving Party") prior
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to 12:00 midnight (San Francisco time) on the Determination Date. Such
termination shall become effective automatically, without the action of either
party, at 12:00 midnight (San Francisco time) on the trading day immediately
preceding the date of the first of the shareholder meetings contemplated by
Sections 5.02 and 6.02(b) unless, prior to such time, the Receiving Party shall
deliver notice to the Terminating Party to the effect that it has elected to
increase or decrease the Exchange Ratio, as the case may be, in the manner
contemplated by such clauses (iv) and (v) above.
(d) If between the date of this Agreement and the
Effective Time the outstanding shares of Intertrans Common Stock or Fritz
Common Stock shall have been changed into a different number of shares or a
different class, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split-up, combination, exchange of shares
or the like, the Exchange Ratio shall be correspondingly adjusted.
SECTION 1.03 EXCHANGE OF CERTIFICATES.
(a) Prior to the Effective Date, Fritz shall appoint a
bank or trust company or other third party reasonably acceptable to Intertrans
to act as exchange agent (the "Exchange Agent") in the Merger.
(b) Promptly after the Effective Time, but in no event
later than one business day thereafter, Fritz shall make available for exchange
in accordance with this Section 1.03, the shares of Fritz Common Stock issuable
pursuant to Section 1.02 in exchange for outstanding shares of Intertrans
Common Stock and an amount of cash sufficient to satisfy Fritz's obligations
under Section 1.05.
(c) As soon as practicable after the Effective Date,
the Exchange Agent shall mail to each holder of record of a stock certificate
that, immediately prior to the Effective Time, represented outstanding shares
of Intertrans Common Stock (a "Certificate") whose shares are being converted
into Fritz Common Stock pursuant to Section 1.02, (i) a letter of transmittal
(which shall be in such form and have such other provisions as Fritz may
reasonably specify and shall be reasonably acceptable to Intertrans), and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for certificates evidencing Fritz Common Stock. Upon surrender of a
Certificate for cancellation to the Exchange Agent, together with such letter
of transmittal, duly executed, the holder of such Certificate shall be entitled
to receive in exchange therefor a certificate for the number of whole shares of
Fritz Common Stock to which the holder of shares of Intertrans Common Stock is
entitled pursuant to Section 1.02 (and an amount of cash in lieu of any
fractional share of Fritz Common Stock in accordance with Section 1.05) and is
represented by the Certificate so surrendered. The Certificate so surrendered
shall forthwith be cancelled. In the event of a transfer of ownership of
shares of Intertrans Common Stock which is not registered in the transfer
records of Intertrans or its transfer agent, Fritz Common Stock may be
delivered to a transferee if the Certificate representing such shares of
Intertrans Common Stock are presented to the Exchange Agent and accompanied by
all documents required to evidence and effect such transfer and to evidence
that any applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this Section 1.03(c), each Certificate shall be
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deemed at any time after the Effective Time to represent the right to receive
upon such surrender such whole number of shares of Fritz Common Stock as
provided by Section 1.02 and an amount of cash in lieu of any fractional share
of Fritz Common Stock in accordance with Section 1.05.
(d) No dividends on the Fritz Common Stock shall be
paid to the holder of any unsurrendered Certificate until the holder of record
of such Certificate shall surrender such Certificate; provided, however, that
upon surrender of a Certificate which immediately prior to the Effective Time
represented shares of Intertrans Common Stock, there shall be paid to the
holder of such Certificate the amount of dividends, if any, without interest,
which theretofore became payable, but which were not paid by reason of the
foregoing, with respect to the number of whole shares of Fritz Common Stock
represented by the Certificate or Certificates issued upon such surrender.
Subject to the effect, if any, of applicable escheat and other laws, following
surrender of any Certificate, there shall be delivered to the person entitled
thereto, without interest, the amount of dividends so withheld as of any date
subsequent to the Effective Date and prior to such date of delivery.
(e) To the extent permitted by applicable law, all
Fritz Common Stock delivered, and cash in lieu of any fractional shares of
Fritz Common Stock paid, upon the surrender for exchange of shares of
Intertrans Common Stock in accordance with the terms hereof shall be deemed to
have been delivered and paid in full satisfaction of all rights pertaining to
such shares. After the Effective Time, there shall be no further registration
of transfers on the stock transfer books of Intertrans or its transfer agent of
the shares of Intertrans Common Stock that were outstanding immediately prior
to the Effective Time. If, after the Effective Time, Certificates are
presented for any reason, they shall be cancelled and exchanged as provided in
this Section 1.03.
SECTION 1.04 DISSENTING SHARES. Notwithstanding the terms of Section
1.02, to the extent that appraisal rights are available under Part 5 of the
Texas Law, shares of Intertrans Common Stock outstanding immediately prior to
the Effective Time and held by a holder who has properly exercised dissenters'
rights for such shares in accordance with Texas Law and who, as of the
Effective Time, has not effectively withdrawn or lost such dissenters' rights
("Dissenting Shares") shall not be converted into a right to receive shares of
Fritz Common Stock as provided in Section 1.02, but shall instead be converted
into the right to receive such consideration as may be determined to be due
with respect to such Dissenting Shares pursuant to Texas Law. If after the
Effective Time such holder fails to perfect or withdraws or loses his right to
appraisal, such shares of Intertrans Common Stock shall be treated as if they
had been converted as of the Effective Time into a right to receive shares of
Fritz Common Stock as provided in Section 1.02. Intertrans shall give Fritz
prompt notice of any demands received by Intertrans for appraisal of shares of
Intertrans Common Stock. Intertrans shall not, except with the prior written
consent of Fritz, make any payment with respect to, or settle or offer to
settle, any such demands.
SECTION 1.05 FRACTIONAL SHARES. Notwithstanding any other provision
of this Agreement to the contrary, no fractional shares of Fritz Common Stock
shall be issued in connection with the Merger. All shares of Fritz Common
Stock to which a holder of shares of Intertrans Common Stock is entitled
immediately prior to the Effective Time shall be aggregated. If a
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<PAGE> 11
fractional share results from such aggregation, in lieu of any such fractional
share, each holder of shares of Intertrans Common Stock who would otherwise
have been entitled to receive a fraction of a share of Fritz Common Stock upon
surrender of Certificates for exchange pursuant to Section 1.03 shall be
entitled to receive from the Exchange Agent a cash payment equal to such
fraction multiplied by the closing price per share of Fritz Common Stock on the
last business day prior to the Effective Date on which Fritz Common Stock is
traded on the Nasdaq National Market ("Nasdaq").
SECTION 1.06 INTERTRANS STOCK OPTION PLANS.
(a) Prior to the Effective Time, Intertrans and Fritz
shall take such action as may be necessary to cause each unexpired and
unexercised option to purchase shares of Intertrans Common Stock (each an
"Intertrans Option"), including those granted under Intertrans' 1983, 1984, and
1990 Incentive Stock Option Plans, Intertrans' 1987 Flexible Stock Option Plan,
and Intertrans' 1992 Nonqualified Stock Option Plan (collectively, the
"Intertrans Stock Option Plans"), to be automatically converted at the
Effective Time into an option (a "Fritz Option") to purchase a number of shares
of Fritz Common Stock equal to the number of shares of Intertrans Common Stock
that could have been purchased under the Intertrans Option multiplied by the
Exchange Ratio (with the resulting number of shares rounded down to the nearest
whole share), at a price per share of Fritz Common Stock equal to the option
exercise price determined pursuant to the Intertrans Option divided by the
Exchange Ratio (with the resulting exercise price rounded up to the nearest
whole cent). Such Fritz Option shall otherwise be subject to substantially
similar terms and conditions as the Intertrans Option (with appropriate
adjustment to reflect that following the Effective Date all references to "the
Company" in the Intertrans Stock Option Plans shall be deemed to be references
to Fritz). Fritz shall (i) on or prior to the Effective Time, assume all of
Intertrans' obligations with respect to Intertrans Options as so amended, (ii)
on or prior to the Effective Time, reserve for issuance the number of shares of
Fritz Common Stock that will become subject to Fritz Options pursuant to this
Section 1.06, (iii) from and after the Effective Time, upon exercise of the
Fritz Options in accordance with the terms thereof, make available for issuance
all shares of Fritz Common Stock covered thereby and (iv) at the Effective
Time, issue to each holder of an outstanding Intertrans Option a document
evidencing the foregoing assumption by Fritz.
(b) It is the intention of the parties that Intertrans
Options assumed by Fritz qualify following the Effective Time of the Merger as
incentive stock options as defined in Section 422 of the Code to the extent
Intertrans Options qualified as incentive stock options prior to the Effective
Time.
SECTION 1.07 REGISTRATION OF INTERTRANS STOCK OPTION PLANS. Fritz
will file on the Effective Date a registration statement on Form S-8 under the
Securities Act of 1933, as amended (the "Securities Act"), covering the shares
of Fritz Common Stock issuable upon the exercise of Fritz Options created upon
the assumption by Fritz of Intertrans Options under Section 1.06, and will use
its reasonable best efforts to cause such registration statement to become
effective on the Effective Date or as soon thereafter as practicable and to
maintain such registration in effect until the exercise or expiration of such
Fritz Options.
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SECTION 1.08 BENEFITS ARRANGEMENTS. Fritz and Intertrans each agree
to appoint personnel from their respective human resources departments who will
meet and in good faith negotiate to reach agreement prior to the Effective Date
with respect to the manner in which Intertrans employee benefit plans, other
than those governed by Section 1.06 above, will be treated after the Merger.
The parties agree that to the extent practicable Fritz will provide benefits
for Intertrans employees and officers following the Merger that are
substantially identical to the benefits provided to similarly situated Fritz
employees and officers; provided, further, that the Intertrans employees and
officers as of the Effective Date shall receive past service credit for their
years of service (including fractional years) with Intertrans.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.01 ARTICLES OF INCORPORATION. At the Effective Time, the
Articles of Incorporation of Intertrans, as in effect immediately prior to the
Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation. Prior to the Effective Date, Fritz shall propose those amendments
to the Articles of Incorporation of Intertrans it deems appropriate, which
amendments shall be incorporated into the Articles of Merger (and Plan of
Merger associated therewith).
SECTION 2.02 BYLAWS. At the Effective Time, the Bylaws of
Intertrans, as in effect immediately prior to the Effective Time, shall be the
Bylaws of the Surviving Corporation. Prior to the Effective Date, Fritz shall
propose those amendments to the Bylaws of Intertrans it deems appropriate,
which amendments shall be incorporated into the Articles of Merger (and Plan of
Merger associated therewith).
SECTION 2.03 DIRECTORS AND OFFICERS. From and after the Effective
Time, until successors are duly elected or appointed and qualified in
accordance with applicable law, the directors of Merger Sub at the Effective
Time shall become directors of the Surviving Corporation, and the officers of
Intertrans at the Effective Time shall become the initial officers of the
Surviving Corporation. In addition, at the Effective Time, Fritz shall take
all necessary action to cause (i) Carsten S. Andersen to be appointed to the
Board of Directors of Fritz, (ii) Sam N. Wilson to be designated an advisory
director to the Board of Directors of Fritz, and (iii) Carsten S. Andersen to
be appointed Executive Vice President of Fritz and Managing Director of the
Surviving Corporation, with all such appointments and designations to become
effective as of the Effective Time.
7.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INTERTRANS
Except as disclosed in a document referring specifically to this
Agreement (the "Intertrans Disclosure Schedule") which has been delivered to
Fritz prior to the date hereof or as disclosed in public filings made by
Intertrans with the Securities and Exchange Commission ("SEC") prior to the
date hereof, Intertrans represents and warrants to Fritz as set forth below:
SECTION 3.01 CORPORATE EXISTENCE AND POWER. Intertrans is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Texas, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals (collectively,
"Governmental Authorizations") required to carry on its business as now
conducted, except such Governmental Authorizations the failure of which to have
obtained would not have a Material Adverse Effect on Intertrans. Intertrans is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where the character of the property owned or leased by it
or the nature of its activities makes such qualification necessary, except
where the failure to be so qualified would not have a Material Adverse Effect
on Intertrans. For purposes of this Agreement, a "Material Adverse Effect,"
with respect to any person or entity, means a material adverse effect on the
condition (financial or otherwise), business, properties, assets, liabilities
(including contingent liabilities), results of operations or prospects of such
person or entity and its subsidiaries, taken as a whole; and "Material Adverse
Change" means a change or a development involving a prospective change which
would result in a Material Adverse Effect. Intertrans has delivered to Fritz
true and complete copies of Intertrans' Articles of Incorporation and Bylaws as
currently in effect.
SECTION 3.02 CORPORATE AUTHORIZATION. The execution, delivery and
performance by Intertrans of this Agreement and the Articles of Merger and the
consummation by Intertrans of the transactions contemplated hereby and thereby
are within Intertrans' corporate powers and have been duly authorized by all
necessary corporate action, except for the approval by Intertrans' shareholders
in connection with the consummation of the Merger. This Agreement and the
Articles of Merger constitute, or upon execution will constitute, valid and
binding agreements of Intertrans, enforceable against Intertrans in accordance
with their respective terms.
SECTION 3.03 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Intertrans of this Agreement and the Articles of Merger and the
consummation of the Merger by Intertrans require no action by or in respect of,
or filing with, any governmental body, agency, official or authority other
than:
(a) the filing of the Articles of Merger in accordance
with Texas Law and California Law;
(b) compliance with any applicable requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act");
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(c) compliance with any applicable requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder;
(d) compliance with any applicable requirements of the
Securities Act and the rules and regulations promulgated thereunder;
(e) compliance with any applicable foreign or state
securities or "blue sky" laws;
(f) compliance with any applicable notification
requirements of the U.S. Customs Service, Federal Maritime Commission, or
IATA/Cargo Network Service; and
(g) such other filings or registrations with, or
authorizations, consents or approvals of, governmental bodies, agencies,
officials or authorities, the failure of which to make or obtain (i) would not
reasonably be expected to have a Material Adverse Effect on Intertrans or the
Surviving Corporation or (ii) would not materially adversely affect the ability
of Intertrans, Fritz or Merger Sub to consummate the transactions contemplated
hereby and operate their businesses as heretofore operated.
SECTION 3.04 NON-CONTRAVENTION. The execution, delivery and
performance by Intertrans of this Agreement and the Articles of Merger and the
consummation by Intertrans of the transactions contemplated hereby and thereby
do not and will not:
(a) contravene or conflict with the Articles of
Incorporation or Bylaws of Intertrans;
(b) assuming compliance with the matters referred to
in Section 3.03 and assuming the requisite approval of Intertrans' shareholders
of the Merger, contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon or applicable to Intertrans or any Subsidiary of Intertrans;
(c) conflict with or result in a breach or violation
of, or constitute a default under, or result in the termination or cancellation
of, or loss of a material benefit under, or right to accelerate, any material
agreement, contract or other instrument binding upon Intertrans or any
Subsidiary of Intertrans or any material license, franchise, permit or other
similar authorization held by Intertrans or any Subsidiary of Intertrans; or
(d) result in the creation or imposition of any Lien
(as defined below) on any material asset of Intertrans or any Subsidiary of
Intertrans,
except, with respect to clauses (b), (c) and (d) above, for contraventions,
defaults, losses, Liens and other matters referred to in such clauses that in
the aggregate would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect on Intertrans. For
9.
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purposes of this Agreement, the term "Lien" means, with respect to any asset,
any mortgage, lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset.
SECTION 3.05 CAPITALIZATION. The authorized capital stock of
Intertrans consists of 23,000,000 shares of Intertrans Common Stock and
2,000,000 shares of preferred stock, $10.00 par value per share (the
"Intertrans Preferred Stock"). As of January 31, 1995, there were outstanding:
(a) 11,380,212 shares of Intertrans Common Stock;
(b) no shares of Intertrans Preferred Stock; and
(c) Intertrans Options to purchase an aggregate of
2,289,356 shares of Intertrans Common Stock.
All outstanding shares of Intertrans Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable and free from any
preemptive rights. Except as set forth in this Section and as otherwise
contemplated by this Agreement, and except for changes since January 31, 1995
resulting from the exercise of Intertrans Options, there are outstanding (i) no
shares of capital stock or other voting securities of Intertrans, (ii) no
securities of Intertrans convertible into or exchangeable for shares of capital
stock or voting securities of Intertrans and (iii) no options or other rights
to acquire from Intertrans, and no obligation of Intertrans to issue, any
capital stock, voting securities or securities convertible into or exchangeable
for capital stock or other voting securities of Intertrans (the items in
clauses (i), (ii) and (iii) being referred to collectively as the "Intertrans
Securities"). There are no outstanding obligations of Intertrans or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any Intertrans
Securities. Except as contemplated by this Agreement, no holder of Intertrans
Securities has, as of the date hereof, any contractual right to include any
such securities in any registration statement proposed to be filed by Fritz
under the Securities Act.
SECTION 3.06 SUBSIDIARIES.
(a) Each Subsidiary of Intertrans is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers and all material
Governmental Authorizations required to carry on its business as now conducted,
except such Governmental Authorizations the failure of which to have obtained
would not have a Material Adverse Effect on Intertrans, and is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction where the character of the property owned or leased by or the
nature of its activities make such qualification necessary, except for those
jurisdictions where failure to be so qualified would not, individually or in
the aggregate, have a Material Adverse Effect on Intertrans. For purposes of
this Agreement, (i) "Subsidiary" means, with respect to any entity, any
corporation of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions are directly or indirectly owned by such entity,
and (ii) "Joint Venture" means, with respect to any entity, any corporation or
organization (other than such
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entity and any Subsidiary thereof) of which such entity or any Subsidiary
thereof is, directly or indirectly, the beneficial owner of 40% or more of any
class of equity securities or equivalent profit participation interest. All
Subsidiaries and Joint Ventures material to the business of Intertrans
("Material Intertrans Subsidiaries") and their respective jurisdictions of
incorporation or organization and Intertrans' ownership interest therein are
identified in the Intertrans Disclosure Schedule. Other than its investments
in its Subsidiaries and Joint Ventures, Intertrans does not own, directly or
indirectly, any outstanding capital stock or equity interest in any
corporation, partnership, joint venture or other entity.
(b) All of the outstanding capital stock of, or other
ownership interests in, each Material Intertrans Subsidiary that is owned by
Intertrans, directly or indirectly, is owned by Intertrans, directly or
indirectly, free and clear of any material Lien and free of any other material
limitation or restriction on its rights as owner thereof (including any
restriction on the right to vote, sell or otherwise dispose of such capital
stock or other ownership interests), other than those imposed by applicable
law. There are no existing options, calls or commitments of any character
relating to the issued or unissued capital stock or other securities or equity
interests (collectively, "Intertrans Subsidiary Securities") of any Material
Intertrans Subsidiary.
SECTION 3.07 SEC FILINGS.
(a) Intertrans has since January 1, 1992 filed all
proxy statements, schedules and reports required to be filed by it with the SEC
pursuant to the Exchange Act.
(b) Intertrans has delivered to Fritz:
(i) its annual reports on Form 10-K for its
fiscal years ended October 31, 1994 and 1993;
(ii) its proxy or information statements
relating to meetings of, or actions taken without a meeting by, the
shareholders of Intertrans held since January 1, 1992;
(iii) all of its registration statements filed
with the SEC since December 31, 1993; and
(iv) all of its other reports, statements and
schedules filed with the SEC since October 31, 1994.
(c) As of its filing date, no such report or statement
filed pursuant to the Exchange Act contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they
were made, not misleading.
(d) No such registration statement, as amended or
supplemented, if applicable, filed pursuant to the Securities Act, as of the
date such statement or amendment
11.
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became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading.
SECTION 3.08 FINANCIAL STATEMENTS. The audited consolidated
financial statements of Intertrans included in its annual reports on Form 10-K
referred to in Section 3.07 present fairly, in conformity with generally
accepted accounting principles applied on a consistent basis (except as may be
indicated in the notes thereto), the consolidated financial position of
Intertrans and its consolidated subsidiaries as of the dates thereof and their
consolidated results of operations and cash flows for the periods then ended
(subject to normal year-end adjustments in the case of any interim financial
statements). For purposes of this Agreement, "Intertrans Balance Sheet" means
the consolidated balance sheet of Intertrans as of October 31, 1994, and the
notes thereto, contained in Intertrans' annual report on Form 10-K filed for
its fiscal year then ended, and "Intertrans Balance Sheet Date" means October
31, 1994.
SECTION 3.09 DISCLOSURE DOCUMENTS. None of the information supplied
or to be supplied by Intertrans for inclusion in (i) the combined proxy
statement relating to the meetings of Intertrans' and Fritz's shareholders to
be held in connection with the Merger (as the same may be amended or
supplemented from time to time, the "Joint Proxy Statement"), and (ii) the
registration statement on Form S-4 or other appropriate registration form to be
filed with the SEC by Fritz in connection with the offer and issuance of the
Fritz Common Stock in or as a result of the Merger (as the same may be amended
or supplemented from time to time, the "Registration Statement") including the
Joint Proxy Statement included therein, will, in the case of the Joint Proxy
Statement, at the time of mailing of the Joint Proxy Statement to shareholders
of Intertrans and at the time of the meeting of such shareholders to be held in
connection with the Merger, contain any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading or will, in the case of
the Registration Statement, at the time the Registration Statement becomes
effective under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Joint Proxy
Statement will comply as to form in all material respects with the provisions
of the Exchange Act and the rules and regulations thereunder, except that no
representation or warranty is made by Intertrans with respect to information
supplied by Fritz or Merger Sub for inclusion therein.
SECTION 3.10 ABSENCE OF CERTAIN CHANGES. Since the Intertrans
Balance Sheet Date, and, with respect to the matters referred to in subsection
(f), since January 1, 1993, Intertrans and its Subsidiaries have in all
material respects conducted their business in the ordinary course and there has
not been:
(a) any Material Adverse Change with respect to
Intertrans or any event, occurrence or development of a state of circumstances
or facts known to Intertrans which as of the date hereof could reasonably be
expected to have a Material Adverse Effect on Intertrans;
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<PAGE> 18
(b) any declaration, setting aside or payment of any
dividend or other distribution in respect of any shares of capital stock of
Intertrans other than the declaration, setting aside or payment of dividends in
accordance with its existing dividend policy, which policy is not inconsistent
with Intertrans' past practice;
(c) any repurchase, redemption or other acquisition by
Intertrans of or any of its Subsidiaries of any outstanding shares of capital
stock or other securities of, or other ownership interests in, Intertrans or
any such Subsidiary;
(d) any amendment of any material term of any
outstanding Intertrans Securities or any Intertrans Subsidiary Securities;
(e) any damage, destruction or other casualty loss
(whether or not covered by insurance) affecting the business, assets,
liabilities, earnings or prospects of Intertrans or any of its Subsidiaries
which, individually or in the aggregate, has had or would reasonably be
expected to have a Material Adverse Effect on Intertrans;
(f) any action by Intertrans or, to Intertrans'
knowledge, any affiliate of Intertrans which would preclude the ability of
Fritz to account for the business combination to be effected by the Merger as a
"pooling of interests" under generally accepted accounting principles;
(g) any increase in indebtedness for borrowed money or
capitalized lease obligations of Intertrans, except in the ordinary course of
business;
(h) any sale, assignment, transfer or other
disposition of any tangible or intangible asset material to the business of
Intertrans, except in the ordinary course of business and for a fair and
adequate consideration;
(i) any amendment, termination or waiver by Intertrans
of any right of substantial value under any material agreement, contract or
other written commitment to which it is a party or by which it is bound;
(j) any increase in the compensation payable or to
become payable by Intertrans to any of its officers, directors, consultants or
employees (except for salary or rate increases granted to such persons in the
ordinary course of business and consistent with prior practice);
(k) any material reduction in the amounts of coverages
provided by existing casualty and liability insurance policies with respect to
the business or properties of Intertrans;
(l) any (i) grant of any severance or termination pay
to any director, officer or employee of Intertrans or any of its Subsidiaries,
(ii) entering into of any employment, deferred compensation or other similar
agreement (or any amendment to any such existing agreement) with any director,
officer or employee of Intertrans or any such Subsidiary, (iii) any
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increase in benefits payable under any existing severance or termination pay
policies or employment agreements, or (iv) any increase in compensation, bonus
or other benefits payable to directors, officers or employees of Intertrans or
any such Subsidiary, in each case other than in the ordinary course of business
consistent with past practice;
(m) any new (or amendment to or alteration of any
existing) bonus, incentive compensation, severance, stock option, stock
appreciation right, pension, matching gift, profit-sharing, employee stock
ownership, retirement, pension group insurance, death benefit, or other fringe
benefit plan, arrangement or trust agreement adopted or implemented by
Intertrans which would result in a material increase in cost to Intertrans;
(n) any capital expenditures, capital additions or
capital improvements incurred or undertaken by Intertrans, except in the
ordinary course of business; or
(o) the entering into of any agreement by Intertrans
or any person on behalf of Intertrans to take any of the foregoing actions.
SECTION 3.11 NO UNDISCLOSED LIABILITIES. There are no liabilities of
Intertrans or any of its Subsidiaries of any kind whatsoever that are,
individually or in the aggregate, material to Intertrans and its Subsidiaries,
taken as a whole, other than:
(a) liabilities disclosed or provided for in
the Intertrans Balance Sheet (including the notes thereto);
(b) liabilities incurred in the ordinary
course of business consistent with past practice since the Intertrans
Balance Sheet Date; and
(c) liabilities under this Agreement.
SECTION 3.12 LITIGATION. Other than actions, suits, proceedings,
claims or investigations occurring in the ordinary course of business involving
respective amounts in controversy of less than $40,000 each, there is no
action, suit, proceeding, claim or investigation pending or, to the knowledge
of Intertrans, overtly threatened, against Intertrans or any of its
Subsidiaries or any of their assets or against or involving any of its
officers, directors or employees in connection with the business or affairs of
Intertrans, including, without limitation, any claims for indemnification
arising under any agreement to which Intertrans or any of its Subsidiaries is a
party, which could, individually or in the aggregate, have a Material Adverse
Effect on Intertrans. Intertrans is not subject to or in default with respect
to any writ, order, judgment, injunction or decree which could, individually or
in the aggregate, have a Material Adverse Effect on Intertrans.
SECTION 3.13 TAXES.
(a) Intertrans and each of its Subsidiaries (i) has
filed when due (taking into account extensions) with the appropriate federal,
state, local, foreign and other governmental
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agencies, all material tax returns, estimates and reports required to be filed
by it, (ii) either paid when due and payable or established adequate reserves
or otherwise accrued on the Intertrans Balance Sheet all material federal,
state, local or foreign taxes, levies, imposts, duties, licenses and
registration fees and charges of any nature whatsoever, and unemployment and
social security taxes and income tax withholding, including interest and
penalties thereon ("Taxes") and there are no tax deficiencies claimed in
writing by any Taxing authority and received by Intertrans that, in the
aggregate, would result in any tax liability in excess of the amount of the
reserves or accruals, and (iii) has or will establish in accordance with its
normal accounting practices and procedures accruals and reserves that, in the
aggregate, are adequate for the payment of all Taxes not yet due and payable
and attributable to any period preceding the Effective Time. The Intertrans
Disclosure Schedule sets forth those tax returns of Intertrans (or any
predecessor entities) for all periods that currently are the subject of audit
by any federal, state, local or foreign taxing authority.
(b) There are no material taxes, interest, penalties,
assessments or deficiencies claimed in writing by any Taxing authority and
received by Intertrans or any of its Subsidiaries to be due in respect of any
tax returns filed by Intertrans (or any predecessor corporations) or any of its
Subsidiaries. Neither Intertrans nor any predecessor corporation, nor any of
their respective Subsidiaries, has executed or filed with the IRS or any other
Taxing authority any agreement or other document extending, or having the
effect of extending, the period of assessment or collection of any Taxes.
(c) Intertrans is not a party to or bound by (or will
prior to the Effective Date become a party to or bound by) any Tax indemnity,
Tax sharing or Tax allocation agreement or other similar arrangement which
includes a party other than Intertrans and its Subsidiaries. Neither
Intertrans nor any of its Subsidiaries has been a member of an affiliated group
other than one of which Intertrans was the common parent, or filed or been
included in a combined, consolidated or unitary Tax return other than one filed
by Intertrans (or a return for a group consisting solely of its Subsidiaries
and predecessors).
SECTION 3.14 EMPLOYEE BENEFIT PLANS; ERISA.
(a) To the knowledge of Intertrans, neither Intertrans
nor any of its Subsidiaries is a party to any oral or written (i) employment,
severance, collective bargaining or consulting agreement not terminable on 60
days' or less notice, (ii) agreement with any executive officer or other key
employee of Intertrans or any Subsidiary of Intertrans (A) the benefits of
which are contingent, or the terms of which are materially altered, upon the
occurrence of a transaction involving Intertrans or any Subsidiary of
Intertrans of the nature of any of the transactions contemplated by this
Agreement, (B) providing any term of employment or compensation guarantee
extending for a period longer than one year, or (C) providing severance
benefits or other benefits after the termination of employment of such
executive officer or key employee regardless of the reason for such termination
of employment, (iii) agreement, plan or arrangement under which any person may
receive payments subject to the tax imposed by Section 4999 of the Code, or
(iv) agreement or plan, including, without limitation, any stock option plan,
stock appreciation right plan, restricted stock plan or stock purchase plan,
the benefits of which
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would be increased, or the vesting of benefits of which will be accelerated, by
the occurrence of any of the transactions contemplated by this Agreement or the
value of any of the benefits of which will be calculated on the basis of any of
the transactions contemplated by this Agreement.
(b) Neither Intertrans nor any corporation or other
entity which under Section 4001(b) of ERISA is under common control with
Intertrans (an "Intertrans ERISA Affiliate") maintains or within the past five
years has maintained, contributed to, or been obligated to contribute to, any
"Employee Pension Benefit Plan" ("Pension Plan") or any "Employee Welfare
Benefit Plan" ("Welfare Plan") as such terms are defined in Sections 3(2) and
3(1) respectively of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), which is subject to ERISA. Each Pension Plan and Welfare
Plan disclosed in the Intertrans Disclosure Schedule (which Plans have been
heretofore delivered to Fritz) and maintained by Intertrans has been maintained
in all material respects in compliance with their terms and all provisions of
ERISA and the Code (including rules and regulations thereunder) applicable
thereto.
(c) All material information regarding the Freight
Intertrans (UK) Limited Retirement and Death Benefits Scheme (the "UK Plan")
requested by Fritz has been made available to Fritz. To the knowledge of
Intertrans, the assets, investments and policies held by the trustees of the UK
Plan are sufficient to satisfy the liabilities and obligations (both current
and contingent) which the UK Plan has to its members as of the date of this
Agreement. The UK Plan is an exempt approved scheme within the meaning of the
UK Income and Corporation Taxes Act 1988 and has at all times complied in all
material respects with and been administered in accordance with all applicable
laws, regulations and requirements.
(d) To the knowledge of Intertrans, no Pension Plan or
Welfare Plan is currently subject to an audit or other investigation by the
IRS, the Department of Labor, the Pension Benefit Guaranty Corporation or any
other governmental agency nor are any such Plans subject to any lawsuits or
legal proceedings of any kind or to any material pending disputed claims by
employees or beneficiaries covered under any such Plan or by any other parties.
(e) No "prohibited transaction," as defined in Section
406 of ERISA or Section 4975 of the Code, resulting in liability to Intertrans
or any Intertrans ERISA Affiliate has occurred with respect to any Pension Plan
or Welfare Plan. Intertrans has no knowledge of any breach of fiduciary
responsibility under Part 4 of Title I of ERISA which has resulted in liability
of Intertrans, any trustee, administrator or fiduciary of any Pension Plan or
Welfare Plan.
(f) Neither Intertrans nor any Intertrans ERISA
Affiliate, since January 1, 1986, has maintained or contributed to, or been
obligated or required to contribute to, a "Multiemployer Plan," as such term is
defined in Section 4001(a)(3) of ERISA. Neither Intertrans nor any Intertrans
ERISA Affiliate has either withdrawn, partially or completely, or instituted
steps to withdraw, partially or completely, from any Multiemployer Plan nor has
any event occurred which would enable a Multiemployer Plan to give notice of
and demand payment of any withdrawal liability with respect to Intertrans or
any Intertrans ERISA Affiliate.
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(g) There is no contract, agreement, plan or
arrangement covering any employee or former employee of Intertrans or any
Intertrans ERISA Affiliate that, individually or collectively, could give rise
to the payment of any amount that would not be deductible pursuant to the terms
of Sections 162(a)(1) or 280G of the Code.
(h) With respect to Intertrans and each Intertrans
ERISA Affiliate, the Intertrans Disclosure Schedule correctly identifies each
material agreement, policy, plan or other arrangement, whether written or oral,
express or implied, fixed or contingent, to which Intertrans is a party or by
which Intertrans or any property or asset of Intertrans is bound, which is or
relates to a pension, option, bonus, deferred compensation, retirement, stock
purchase, profit-sharing, severance pay, health, welfare, incentive, vacation,
sick leave, medical disability, hospitalization, life or other insurance or
fringe benefit plan, policy or arrangement.
(i) Neither Intertrans nor any Intertrans ERISA
Affiliate maintains or has maintained or contributed to any Pension Plan that
is or was subject to Section 302 or Title IV of ERISA or Section 412 of the
Code. Intertrans has made available to Fritz, for each Pension Plan which is
intended to be "qualified" within the meaning of Section 401(a) of the Code, a
copy of the most recent determination letter issued by the IRS to the effect
that each such Plan is so qualified and that each trust created thereunder is
tax exempt under Section 501 of the Code, and Intertrans is unaware of any fact
or circumstances that would jeopardize the qualified status of each such
Pension Plan or the tax exempt status of each trust created thereunder.
SECTION 3.15 MATERIAL AGREEMENTS.
(a) The Intertrans Disclosure Schedule, together with
the public filings made by Intertrans with the SEC (other than Intertrans
Property Leases, as hereinafter defined), includes a complete and accurate list
of all contracts, agreements, leases and instruments to which Intertrans or any
of its Subsidiaries is a party or by which it or its properties or assets are
bound which individually involve net payments or receipts in excess of $200,000
per annum, inclusive of contracts entered into with customers and suppliers in
the ordinary course of business, or that pertain to employment or severance
benefits for any officer, director or employee of Intertrans, whether written
or oral, but exclusive of contracts, agreements, leases and instruments
terminable without penalty by Intertrans upon 60 days' or less prior written
notice to the other party or parties thereto (the "Material Intertrans
Agreements").
(b) Neither Intertrans nor, to the knowledge of
Intertrans, any other party is in default under any Material Intertrans
Agreement and no event has occurred which (after notice or lapse of time or
both) would become a breach or default under, or would permit modification,
cancellation, acceleration or termination of any Material Intertrans Agreement
or result in the creation of any security interest upon, or any person
obtaining any right to acquire, any properties, assets or rights of Intertrans
which, in any such case, has had or would reasonably be expected to have a
Material Adverse Effect on Intertrans.
(c) To the knowledge of Intertrans, each such Material
Intertrans Agreement is in full force and effect and is valid and legally
binding and there are no material unresolved
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disputes involving or with respect to any Material Intertrans Agreement. No
party to a Material Intertrans Agreement has advised Intertrans that it intends
either to terminate a Material Intertrans Agreement or to refuse to renew a
Material Intertrans Agreement upon the expiration of the term thereof.
(d) Intertrans is not in violation of, or in default
with respect to, any term of its Articles of Incorporation or Bylaws.
SECTION 3.16 PROPERTIES. To the knowledge of Intertrans, all leases
of real property to which Intertrans is a party or by which it is bound
("Intertrans Property Leases") which are material to the business of Intertrans
and its Subsidiaries taken as a whole, are in full force and effect. To the
knowledge of Intertrans, there exists no default under such leases, nor any
event which with notice or lapse of time or both would constitute a default
thereunder by Intertrans or any of its Subsidiaries, which default would have a
Material Adverse Effect on Intertrans. All of the properties and assets owned
by Intertrans and each of its Subsidiaries are owned by each of them,
respectively, free and clear of any Lien, except for Liens which do not have a
Material Adverse Effect on Intertrans. Intertrans and its Subsidiaries have
good and marketable title subject to no Liens, other than those permitted under
this Section 3.16, to all of the properties and assets necessary for the
conduct of their business other than to the extent that the failure to have
such title would not have a Material Adverse Effect on Intertrans.
SECTION 3.17 ENVIRONMENTAL MATTERS.
(a) To the knowledge of Intertrans, no notice,
notification, demand, request for information, citation, summons, complaint or
order has been received, no complaint has been filed, no penalty has been
assessed and no investigation or review is pending, or to Intertrans'
knowledge, has been threatened by any governmental entity or other party with
respect to any (i) alleged violation by Intertrans or any of its Subsidiaries
of any Environmental Law, (ii) alleged failure by Intertrans or any such
Subsidiary to have any environmental permit, certificate, license, approval,
registration or authorization required in connection with the conduct of its
business or (iii) Regulated Activity.
(b) To the knowledge of Intertrans, neither Intertrans
nor any of its Subsidiaries has any material Environmental Liabilities and
there has been no release of Hazardous Substances into the environment by
Intertrans or any such Subsidiary or with respect to any of their respective
properties which has had, or would reasonably be expected to have, a Material
Adverse Effect on Intertrans.
(c) For the purposes of this Agreement, the following
terms have the following meanings:
"Environmental Laws" shall mean any and all
Federal, state, local and foreign statutes, laws (including case law),
regulations, ordinances, rules, judgments, orders, decrees, codes,
plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and governmental restrictions relating to human
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health, the environment or to emissions, discharges or releases of
pollutants, contaminants, Hazardous Substances or wastes into the
environment or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"Environmental Liabilities" shall mean all
liabilities, whether vested or unvested, contingent or fixed, actual
or potential, which (i) arise under or relate to Environmental Laws
and (ii) relate to actions occurring or conditions existing on or
prior to the Effective Time.
"Hazardous Substances" shall mean any toxic,
radioactive, caustic or otherwise hazardous substance, including
petroleum, its derivatives, by-products and other hydrocarbons, or any
substance having any constituent elements displaying any of the
foregoing characteristics.
"Regulated Activity" shall mean any generation,
treatment, storage, recycling, transportation, disposal or release of
any Hazardous Substances.
SECTION 3.18 LABOR MATTERS. Except as set forth on the Intertrans
Disclosure Schedule, neither Intertrans nor any of its Subsidiaries is a party
to any collective bargaining agreement or other labor union contract applicable
to persons employed by Intertrans or any such Subsidiary, nor do the executive
officers of Intertrans know of any activities or proceedings of any labor union
to organize any such employees.
SECTION 3.19 COMPLIANCE WITH LAWS. Except for violations which do
not have and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Intertrans, neither Intertrans nor any
of its Subsidiaries is in violation of, or has violated, any applicable
provisions of any laws, statutes, ordinances or regulations or any term of any
judgment, decree, injunction or order binding against it.
SECTION 3.20 TRADEMARKS, TRADENAMES, ETC. Intertrans owns or
possesses all intellectual property, patents, trademarks, tradenames,
servicemarks, copyrights and licenses, and all rights with respect to the
foregoing, necessary for the conduct of its business as now conducted, without
any known conflict with the rights of others.
SECTION 3.21 FINDERS' FEES. Except for Scott & Stringfellow (the
"Intertrans Financial Advisor"), whose fees in the amount previously disclosed
in writing to Fritz will be paid by Intertrans, there is no investment banker,
broker, finder or other intermediary which has been retained by or is
authorized to act on behalf of Intertrans or any of its Subsidiaries who is
entitled to any fee or commission from Fritz or any of its affiliates upon
consummation of the transactions contemplated by this Agreement.
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SECTION 3.22 OPINION OF FINANCIAL ADVISOR. Intertrans has received
the opinion of the Intertrans Financial Advisor to the effect that, as of the
date hereof, the Exchange Ratio is fair, from a financial point of view, to the
shareholders of Intertrans.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FRITZ
Except as disclosed in a document referring specifically to this
Agreement (the "Fritz Disclosure Schedule") which has been delivered to
Intertrans on or prior to the date hereof or as disclosed in public filings
made by Fritz with the SEC prior to the date hereof, Fritz represents and
warrants to Intertrans as set forth below:
SECTION 4.01 CORPORATE EXISTENCE AND POWER. Fritz is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware. Merger Sub is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of California. Each
of Fritz and Merger Sub has all corporate powers and all material Governmental
Authorizations required to carry on its business as now conducted, except such
Governmental Authorizations the failure of which to have obtained would not
have a Material Adverse Effect on Fritz. Fritz is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, except where the failure to be
so qualified would have a Material Adverse Effect on Fritz. Fritz has
delivered to Intertrans true and complete copies of Fritz's Certificate of
Incorporation and Bylaws and Merger Sub's Articles of Incorporation and Bylaws,
each as currently in effect.
SECTION 4.02 CORPORATE AUTHORIZATION. The execution, delivery and
performance by Fritz and Merger Sub of this Agreement, by Fritz of the
Affiliates Agreements (as defined in Section 5.09) and by Merger Sub of the
Articles of Merger and the consummation by Fritz and Merger Sub of the
transactions contemplated hereby and thereby are within the corporate powers of
Fritz and Merger Sub and have been duly authorized by all necessary corporate
action, except for the approval by Fritz's stockholders in connection with the
issuance of shares of Fritz Common Stock in the Merger. This Agreement
constitutes a valid and binding agreement of Fritz and Merger Sub, and the
Affiliates Agreements and Articles of Merger will upon execution constitute
valid and binding agreements of Fritz and Merger Sub, respectively, enforceable
in each case against each in accordance with their respective terms.
SECTION 4.03 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Fritz and Merger Sub of this Agreement and, in the case of
Fritz, the Affiliates Agreements and, in the case of Merger Sub, the Articles
of Merger and the consummation of the Merger by Fritz and Merger Sub, require
no action by or in respect of, or filing with, any governmental body, agency,
official or authority other than:
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(a) the filing of the Articles of Merger in accordance
with Texas Law and California Law;
(b) compliance with any applicable requirements of the
HSR Act;
(c) compliance with any applicable requirements of the
Exchange Act and the rules and regulations promulgated thereunder;
(d) compliance with any applicable requirements of the
Securities Act and the rules and regulations promulgated thereunder;
(e) compliance with any applicable foreign or state
securities or "blue sky" laws; and
(f) such other filings or registrations with, or
authorizations, consents or approvals of, governmental bodies, agencies,
officials or authorities, the failure of which to make or obtain (i) would not
reasonably be expected to have a Material Adverse Effect on Fritz or (ii) would
not materially adversely affect the ability of Intertrans, Fritz or Merger Sub
to consummate the transactions contemplated hereby and operate their businesses
as heretofore operated.
SECTION 4.04 NON-CONTRAVENTION. The execution, delivery and
performance by Fritz and Merger Sub of this Agreement and, in the case of
Fritz, the Affiliate Agreement and, in the case of Merger Sub, the Articles of
Merger, the consummation by Fritz and Merger Sub of the transactions
contemplated hereby and thereby do not and will not:
(a) contravene or conflict with the Certificate or
Articles of Incorporation, as the case may be, or Bylaws of Fritz or Merger
Sub;
(b) assuming compliance with the matters referred to
in Section 4.03, contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon or applicable to Fritz or Merger Sub or any Subsidiary of Fritz;
(c) conflict with or result in a breach or violation
of, or constitute a default under, or result in the termination or cancellation
of or loss of a material benefit under, or right to accelerate, any material
agreement, contract or other instrument binding upon Fritz or Merger Sub or any
Subsidiary of Fritz or any material license, franchise, permit or other similar
authorization held by Fritz or Merger Sub or any Subsidiary of Fritz; or
(d) result in the creation or imposition of any Lien
on any material asset of Fritz or Merger Sub or any Subsidiary of Fritz,
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except, with respect to clauses (b), (c) and (d) above, for contraventions,
defaults, losses, Liens and other matters referred to in such clauses that in
the aggregate would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect on Fritz.
SECTION 4.05 CAPITALIZATION OF FRITZ.
(a) The authorized capital stock of Fritz consists of
60,000,000 shares of Fritz Common Stock and 1,000,000 shares of preferred
stock, $.01 par value per share ("Fritz Preferred Stock"). As of January 31,
1995, there were outstanding:
(i) 12,200,614 shares of Fritz Common Stock;
(ii) no shares of Fritz Preferred Stock; and
(iii) employee and director stock options to
purchase an aggregate of 811,098 shares of Fritz Common Stock.
All outstanding shares of Fritz Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable and free from any
preemptive rights. Except as set forth in this Section and as otherwise
contemplated by this Agreement, and except for changes since January 31, 1995
resulting from the exercise of employee and director stock options, there are
outstanding (i) no shares of capital stock or other voting securities of Fritz,
(ii) no securities of Fritz convertible into or exchangeable for shares of
capital stock or voting securities of Fritz and (iii) no options or other
rights to acquire from Fritz, and no obligation of Fritz to issue, any capital
stock, voting securities or securities convertible into or exchangeable for
capital stock or other voting securities of Fritz (the items in clauses (i),
(ii) and (iii) being referred to collectively as the "Fritz Securities").
There are no outstanding obligations of Fritz or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any Fritz Securities. No holder of
Fritz Securities has, as of the date hereof, any contractual right to include
any such securities in any registration statement proposed to be filed by Fritz
under the Securities Act. On or prior to the Effective Date, Fritz expects to
adopt an employee stock purchase plan.
(b) All shares of Fritz Common Stock issued in the
Merger and upon exercise of the Fritz Options referred to in Sections 1.06
shall, upon issuance, be fully paid, validly issued and nonassessable. Fritz
has reserved sufficient shares of Fritz Common Stock for issuance (i) in the
Merger and (ii) upon exercise in full of all Fritz Options, based on the number
of shares of Intertrans Common Stock and the number of Intertrans Options
outstanding on the date hereof.
SECTION 4.06 ORGANIZATION OF MERGER SUB. The authorized capital
stock of Merger Sub consists of 2,400 shares of common stock, par value $10.00
per share, all of which are outstanding. All the issued and outstanding
capital stock of Merger Sub is owned by Fritz. Merger Sub has not conducted
any business prior to the date hereof and has no assets, liabilities or
obligations of any nature other than those incident to its formation and
pursuant to this Agreement.
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SECTION 4.07 SUBSIDIARIES.
(a) Each Subsidiary of Fritz is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers and all material
Governmental Authorizations required to carry on its business as now conducted,
except such Governmental Authorizations the failure of which to have obtained
would not have a Material Adverse Effect on Fritz, and is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the property owned or leased by or the nature of its
activities make such qualification necessary, except for those jurisdictions
where failure to be so qualified would not, individually or in the aggregate,
have a Material Adverse Effect on Fritz. For purposes of this Agreement, (i)
"Subsidiary" means, with respect to any entity, any corporation of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are directly or indirectly owned by such entity, and (ii) "Joint
Venture" means, with respect to any entity, any corporation or organization
(other than such entity and any Subsidiary thereof) of which such entity or any
Subsidiary thereof is, directly or indirectly, the beneficial owner of 40% or
more of any class of equity securities or equivalent profit participation
interest. All Subsidiaries and Joint Ventures material to the business of
Fritz ("Material Fritz Subsidiaries") and their respective jurisdictions of
incorporation or organization and Fritz's ownership interest therein are
identified in the Fritz Disclosure Schedule. Other than its investments in its
Subsidiaries and Joint Ventures, Fritz does not own, directly or indirectly,
any outstanding capital stock or equity interest in any corporation,
partnership, joint venture or other entity.
(b) All of the outstanding capital stock of, or other
ownership interests in, each Material Fritz Subsidiary that is owned by Fritz,
directly or indirectly, is owned by Fritz, directly or indirectly, free and
clear of any material Lien and free of any other material limitation or
restriction on its rights as owner thereof (including any restriction on the
right to vote, sell or otherwise dispose of such capital stock or other
ownership interests), other than those imposed by applicable law. There are no
existing options, calls or commitments of any character relating to the issued
or unissued capital stock or other securities or equity interests
(collectively, "Fritz Subsidiary Securities") of any Material Fritz Subsidiary.
SECTION 4.08 SEC FILINGS.
(a) Fritz has since January 1, 1992 filed all proxy
statements, schedules and reports required to be filed by it with the SEC
pursuant to the Exchange Act.
(b) Fritz has delivered to Intertrans:
(i) its annual reports on Form 10-K for its
fiscal years ended December 31, 1993 and 1992;
(ii) its quarterly report on Form 10-Q for its
fiscal quarter ending March 31, June 30 and September 30, 1994;
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(iii) its proxy or information statements
relating to meetings of, or actions taken without a meeting by, the
stockholders of Fritz held since January 1, 1992; and
(iv) all of its other reports, statements,
schedules and registration statements filed with the SEC since
December 31, 1993.
(c) As of its filing date, no such report or statement
filed pursuant to the Exchange Act contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they
were made, not misleading.
(d) No such registration statement, as amended or
supplemented, if applicable, filed pursuant to the Securities Act, as of the
date such statement or amendment became effective, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading.
SECTION 4.09 FINANCIAL STATEMENTS. The audited consolidated
financial statements Fritz included in its annual reports on Form 10-K and the
unaudited financial statements of Fritz included in its quarterly reports on
Form 10-Q referred to in Section 4.08 present fairly, in conformity with
generally accepted accounting principles applied on a consistent basis (except
as may be indicated in the notes thereto), the consolidated financial position
of Fritz and its consolidated subsidiaries as of the dates thereof and their
consolidated results of operations and cash flows for the periods then ended
(subject to normal year-end adjustments in the case of any interim financial
statements). For purposes of this Agreement, "Fritz Balance Sheet" means the
consolidated balance sheet of Fritz as of September 30, 1994, and the notes
thereto, contained in Fritz's quarterly report on Form 10-Q filed for its
fiscal quarter then ended, and "Fritz Balance Sheet Date" means September 30,
1994.
SECTION 4.10 DISCLOSURE DOCUMENTS. None of the information supplied
or to be supplied by Fritz or Merger Sub for inclusion in the Joint Proxy
Statement and the Registration Statement, will, in the case of the Joint Proxy
Statement, at the time of mailing of the Joint Proxy Statement to stockholders
of Fritz and at the time of the meeting of such stockholders to be held in
connection with the Merger, contain any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading or will, in the case of
the Registration Statement, at the time the Registration Statement becomes
effective under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Registration
Statement and Joint Proxy Statement will comply as to form in all material
respects with the provisions of the Securities Act and Exchange Act,
respectively, and the rules and regulations thereunder, except that no
representation or warranty is made by Fritz with respect to information
supplied by Intertrans for inclusion therein.
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SECTION 4.11 ABSENCE OF CERTAIN CHANGES. Since the Fritz Balance
Sheet Date, and, with respect to the matters referred to in subsection (c),
since January 1, 1993, Fritz and its Subsidiaries have in all material respects
conducted their business in the ordinary course and there has not been:
(a) any Material Adverse Change with respect to Fritz
or any event, occurrence or development of a state of circumstances or facts
known to Fritz which as of the date hereof could reasonably be expected to have
a Material Adverse Effect on Fritz;
(b) any amendment of any material term of any
outstanding Fritz Securities or any Fritz Subsidiary Securities;
(c) any action by Fritz or, to Fritz's knowledge, any
affiliate of Fritz which would preclude the ability of Fritz to account for the
business combination to be effected by the Merger as a "pooling of interests"
under generally accepted accounting principles;
(d) the entering into of any agreement by Fritz or any
person on behalf of Fritz to take any of the foregoing actions.
SECTION 4.12 NO UNDISCLOSED LIABILITIES. There are no liabilities of
Fritz or any of its Subsidiaries of any kind whatsoever that are, individually
or in the aggregate, material to Fritz and its Subsidiaries, taken as a whole,
other than:
(a) liabilities disclosed or provided for in
the Fritz Balance Sheet (including the notes thereto);
(b) liabilities incurred in the ordinary
course of business consistent with past practice since the Fritz
Balance Sheet Date; and
(c) liabilities under this Agreement.
SECTION 4.13 LITIGATION. Other than actions, suits, proceedings,
claims or investigations occurring in the ordinary course of business involving
respective amounts in controversy of less than $40,000 each, there is no
action, suit, proceeding, claim or investigation pending or, to the knowledge
of Fritz, overtly threatened, against Fritz or any of its Subsidiaries or any
of their assets or against or involving any of its officers, directors or
employees in connection with the business or affairs of Fritz, including,
without limitation, any claims for indemnification arising under any agreement
to which Fritz or any of its Subsidiaries is a party, which could, individually
or in the aggregate, have a Material Adverse Effect on Fritz. Fritz is not
subject to or in default with respect to any writ, order, judgment, injunction
or decree which could, individually or in the aggregate, have a Material
Adverse Effect on Fritz.
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SECTION 4.14 TAXES.
(a) Fritz and each of its Subsidiaries (i) has filed
when due (taking into account extensions) with the appropriate federal, state,
local, foreign and other governmental agencies, all material tax returns,
estimates and reports required to be filed by it, (ii) either paid when due and
payable or established adequate reserves or otherwise accrued on the Fritz
Balance Sheet all material Taxes, and there are no tax deficiencies claimed in
writing by any Taxing authority and received by Fritz that, in the aggregate,
would result in any tax liability in excess of the amount of the reserves or
accruals, and (iii) has or will establish in accordance with its normal
accounting practices and procedures accruals and reserves that, in the
aggregate, are adequate for the payment of all Taxes not yet due and payable
and attributable to any period preceding the Effective Time. The Fritz
Disclosure Schedule sets forth those tax returns of Fritz (or any predecessor
entities) for all periods that currently are the subject of audit by any
federal, state, local or foreign taxing authority.
(b) There are no material taxes, interest, penalties,
assessments or deficiencies claimed in writing by any taxing authority and
received by Fritz or any of its Subsidiaries to be due in respect of any tax
returns filed by Fritz (or any predecessor corporations) or any of its
Subsidiaries. Neither Fritz nor any predecessor corporation, nor any of their
respective Subsidiaries, has executed or filed with the IRS or any other Taxing
authority any agreement or other document extending, or having the effect of
extending, the period of assessment or collection of any Taxes.
(c) Fritz is not a party to or bound by (or will prior
to the Effective Date become a party to or bound by) any Tax indemnity, Tax
sharing or Tax allocation agreement or other similar arrangement which includes
a party other than Fritz and its Subsidiaries. Neither Fritz nor any of its
Subsidiaries has been a member of an affiliated group other than one of which
Fritz was the common parent, or filed or been included in a combined,
consolidated or unitary Tax return other than one filed by Fritz (or a return
for a group consisting solely of its Subsidiaries and predecessors).
SECTION 4.15 EMPLOYEE BENEFIT PLANS; ERISA.
(a) Neither Fritz nor any corporation or other entity
which under Section 4001(b) of ERISA is under common control with Fritz (a
"Fritz ERISA Affiliate") maintains or within the past five years has
maintained, contributed to, or been obligated to contribute to, any Pension
Plan or any Welfare Plan which is subject to ERISA. Each Pension Plan and
Welfare Plan disclosed in the Fritz Disclosure Schedule (which Plans have been
heretofore delivered to Fritz) and maintained by Fritz has been maintained in
all material respects in compliance with their terms and all provisions of
ERISA and the Code (including rules and regulations thereunder) applicable
thereto.
(b) Neither Fritz nor any Fritz ERISA Affiliate
maintains or has maintained or contributed to any Pension Plan that is or was
subject to Section 302 or Title IV of ERISA or Section 412 of the Code. Fritz
has made available to Intertrans, for each Pension Plan which
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is intended to be "qualified" within the meaning of Section 401(a) of the Code,
a copy of the most recent determination letter issued by the IRS to the effect
that each such Plan is so qualified and that each trust created thereunder is
tax exempt under Section 501 of the Code, and Fritz is unaware of any fact or
circumstances that would jeopardize the qualified status of each such Pension
Plan or the tax exempt status of each trust created thereunder.
(c) To the knowledge of Fritz, no Pension Plan or
Welfare Plan is currently subject to an audit or other investigation by the
IRS, the Department of Labor, the Pension Benefit Guaranty Corporation or any
other governmental agency nor are any such Plans subject to any lawsuits or
legal proceedings of any kind or to any material pending disputed claims by
employees or beneficiaries covered under any such Plan or by any other parties.
(d) No "prohibited transaction," as defined in Section
406 of ERISA or Section 4975 of the Code, resulting in liability to Fritz or
any Fritz ERISA Affiliate has occurred with respect to any Pension Plan or
Welfare Plan. Fritz has no knowledge of any breach of fiduciary responsibility
under Part 4 of Title I of ERISA which has resulted in liability of Fritz, any
trustee, administrator or fiduciary of any Pension Plan or Welfare Plan.
(e) Neither Fritz nor any Fritz ERISA Affiliate, since
January 1, 1986, has maintained or contributed to, or been obligated or
required to contribute to, a "Multiemployer Plan," as such term is defined in
Section 4001(a)(3) of ERISA. Neither Fritz nor any Fritz ERISA Affiliate has
either withdrawn, partially or completely, or instituted steps to withdraw,
partially or completely, from any Multiemployer Plan nor has any event occurred
which would enable a Multiemployer Plan to give notice of and demand payment of
any withdrawal liability with respect to Fritz or any Fritz ERISA Affiliate.
(f) With respect to Fritz and each Fritz ERISA
Affiliate, the Fritz Disclosure Schedule correctly identifies each material
agreement, policy, plan or other arrangement, whether written or oral, express
or implied, fixed or contingent, to which Fritz is a party or by which Fritz or
any property or asset of Fritz is bound, which is or relates to a pension,
option, bonus, deferred compensation, retirement, stock purchase,
profit-sharing, severance pay, health, welfare, incentive, vacation, sick
leave, medical disability, hospitalization, life or other insurance or fringe
benefit plan, policy or arrangement.
SECTION 4.16 MATERIAL AGREEMENTS.
(a) The Fritz Disclosure Schedule, together with the
public filings made by Fritz with the SEC (other than Fritz Property Leases, as
hereinafter defined), includes a complete and accurate list of all contracts,
agreements, leases and instruments to which Fritz or any of its Subsidiaries is
a party or by which it or its properties or assets are bound which individually
involve net payments or receipts in excess of $200,000 per annum, inclusive of
contracts entered into with customers and suppliers in the ordinary course of
business, or that pertain to employment or severance benefits for any officer,
director or employee of Fritz, whether written or oral, but exclusive of
contracts, agreements, leases and instruments terminable without penalty
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by Fritz upon 60 days' or less prior written notice to the other party or
parties thereto (the "Material Fritz Agreements").
(b) Neither Fritz nor, to the knowledge of Fritz, any
other party is in default under any Material Fritz Agreement and no event has
occurred which (after notice or lapse of time or both) would become a breach or
default under, or would permit modification, cancellation, acceleration or
termination of any Material Fritz Agreement or result in the creation of any
security interest upon, or any person obtaining any right to acquire, any
properties, assets or rights of Fritz which, in any such case, has had or would
reasonably be expected to have a Material Adverse Effect on Fritz.
(c) To the knowledge of Fritz, each such Material
Fritz Agreement is in full force and effect and is valid and legally binding
and there are no material unresolved disputes involving or with respect to any
Material Fritz Agreement. No party to a Material Fritz Agreement has advised
Fritz that it intends either to terminate a Material Fritz Agreement or to
refuse to renew a Material Fritz Agreement upon the expiration of the term
thereof.
(d) Fritz is not in violation of, or in default with
respect to, any term of its Certificate of Incorporation or Bylaws.
SECTION 4.17 PROPERTIES. To the knowledge of Fritz, all leases of
real property to which Fritz is a party or by which it is bound ("Fritz
Property Leases") which are material to the business of Fritz and its
Subsidiaries taken as a whole are in full force and effect. To the knowledge
of Fritz, there exists no default under such leases, nor any event which with
notice or lapse of time or both would constitute a default thereunder by Fritz
or any of its Subsidiaries, which default would have a Material Adverse Effect
on Fritz. All of the properties and assets owned by Fritz and each of its
Subsidiaries are owned by each of them, respectively, free and clear of any
Lien, except for Liens which do not have a Material Adverse Effect on Fritz.
Fritz and its Subsidiaries have good and marketable title subject to no Liens,
other than those permitted under this Section 4.17, to all of the properties
and assets necessary for the conduct of their business other than to the extent
that the failure to have such title would not have a Material Adverse Effect on
Fritz.
SECTION 4.18 ENVIRONMENTAL MATTERS.
(a) To the knowledge of Fritz, no notice,
notification, demand, request for information, citation, summons, complaint or
order has been received, no complaint has been filed, no penalty has been
assessed and no investigation or review is pending, or to Fritz's knowledge,
has been threatened by any governmental entity or other party with respect to
any (i) alleged violation by Fritz or any of its Subsidiaries of any
Environmental Law, (ii) alleged failure by Fritz or any such Subsidiary to have
any environmental permit, certificate, license, approval, registration or
authorization required in connection with the conduct of its business or (iii)
Regulated Activity.
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(b) To the knowledge of Fritz, neither Fritz nor any
of its Subsidiaries has any material Environmental Liabilities and there has
been no release of Hazardous Substances into the environment by Fritz or any
such Subsidiary or with respect to any of their respective properties which has
had, or would be reasonably expected to have, a Material Adverse Effect on
Fritz.
SECTION 4.19 LABOR MATTERS. Except as set forth in the Fritz
Disclosure Schedule, neither Fritz nor any of its Subsidiaries is a party to
any collective bargaining agreement or other labor union contract applicable to
persons employed by Fritz or any such Subsidiary, nor do the executive officers
of Fritz know of any activities or proceedings of any labor union to organize
any such employees.
SECTION 4.20 COMPLIANCE WITH LAWS. Except for violations which do
not have and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Fritz, neither Fritz nor any of its
Subsidiaries is in violation of, or has violated, any applicable provisions of
any laws, statutes, ordinances or regulations or any term of any judgment,
decree, injunction or order binding against it.
SECTION 4.21 TRADEMARKS, TRADENAMES, ETC. Fritz owns or possesses
all intellectual property, patents, trademarks, tradenames, servicemarks,
copyrights and licenses, and all rights with respect to the foregoing,
necessary for the conduct of its business as now conducted, without any known
conflict with the rights of others.
SECTION 4.22 FINDERS' FEES. Except for Morgan Stanley & Co.
Incorporated (the "Fritz Financial Advisor"), whose fees in the amount
previously disclosed in writing to Intertrans will be paid by Fritz, there is
no investment banker, broker, finder or other intermediary which has been
retained by or is authorized to act on behalf of Fritz or any of its
Subsidiaries who is entitled to any fee or commission from Fritz or any of its
affiliates upon consummation of the transactions contemplated by this
Agreement.
SECTION 4.23 OPINION OF FINANCIAL ADVISOR. Fritz has received the
opinion of the Fritz Financial Advisor to the effect that, as of the date
hereof, the Exchange Ratio is fair, from a financial point of view, to Fritz.
ARTICLE V
COVENANTS OF INTERTRANS
From the date hereof until the occurrence of the earlier of (i) the
Effective Time or (ii) termination of this Agreement pursuant to Section 9.01
hereof, Intertrans agrees that:
SECTION 5.01 CONDUCT OF INTERTRANS. Intertrans and its Subsidiaries
shall in all material respects conduct their business in the ordinary course.
Without limiting the generality of the
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foregoing, from the date hereof until the Effective Time, except as
contemplated hereby or previously disclosed by Intertrans to Fritz in writing,
without the prior written consent of Fritz:
(a) Intertrans will not adopt or propose any change in
its Articles of Incorporation or Bylaws;
(b) Intertrans will not enter into or amend any
employment agreements (oral or written) or increase the compensation payable or
to become payable by it to any of its officers, directors, or consultants over
the amount payable as of January 31, 1995, or increase the compensation payable
to any other employees (other than (A) increases in the ordinary course of
business which are not in the aggregate material to Intertrans, or (B) pursuant
to plans disclosed in Intertrans Disclosure Schedule), or adopt or amend any
employee benefit plan or arrangement (oral or written); or
(c) Except pursuant to the exercise of Intertrans
Options, Intertrans will not issue any Intertrans Securities;
(d) Intertrans will keep in full force and effect its
existing directors' and officers' liability insurance and will not modify or
reduce the coverage thereunder;
(e) Other than the payment of dividends in accordance
with its existing dividend policy, which policy is consistent with Intertrans'
past practice, Intertrans will not pay any dividend or make any other
distribution to holders of its capital stock nor will Intertrans or any of its
Subsidiaries redeem or otherwise acquire any Intertrans Securities;
(f) Intertrans will not, directly or indirectly,
dispose of or acquire any material properties or assets except in the ordinary
course of business;
(g) Intertrans will not incur any additional
indebtedness for borrowed money in excess of $100,000 in the aggregate, except
pursuant to existing arrangements which have been disclosed to Fritz prior to
the date hereof;
(h) Other than as expressly provided in the Intertrans
Stock Option Plans, Intertrans will not amend or change the period of
exercisability or accelerate the exercisability of any outstanding options or
warrants to acquire shares of capital stock, or accelerate, amend or change the
vesting period of any outstanding restricted stock;
(i) Except as may be permitted by Sections 5.02, 5.04
and 9.01 of this Agreement, Intertrans will not knowingly enter into any
transaction that would require the Joint Proxy Statement to be delayed or
recirculated under circumstances which would in the reasonable judgment of
Fritz delay the occurrence of the Effective Date beyond the date specified in
Section 9.01(iii); and
(j) Intertrans will not, and will not permit any of
its Subsidiaries to, agree or commit to do any of the foregoing.
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SECTION 5.02 SHAREHOLDERS' MEETING; PROXY MATERIAL. Intertrans shall
cause a meeting of its shareholders to be duly called and held as soon as
reasonably practicable following the effectiveness of the Registration
Statement for the purpose of voting on the approval and adoption of this
Agreement and the Merger. The Board of Directors of Intertrans shall, subject
to their fiduciary duties exercised in a manner consistent with the terms of
Section 5.04, recommend approval and adoption of this Agreement and the Merger
by Intertrans' shareholders. In connection with such meeting, Intertrans:
(a) will, together with Fritz and Merger Sub, promptly
prepare and file with the SEC, will use all reasonable efforts to have cleared
by the SEC and will thereafter mail to its shareholders as promptly as
practicable the Joint Proxy Statement and all other proxy materials for such
meeting;
(b) will use all reasonable efforts to obtain the
necessary approvals by its shareholders of this Agreement and the transactions
contemplated hereby; and
(c) will otherwise comply with all legal requirements
applicable to such meeting.
SECTION 5.03 ACCESS TO FINANCIAL AND OPERATION INFORMATION.
Intertrans will give Fritz, its counsel, financial advisors, auditors and other
authorized representatives reasonable access during normal business hours to
the offices, properties, books and records of Intertrans and its Subsidiaries
will furnish to Fritz, its counsel, financial advisors, auditors and other
authorized representatives such financial and operating data as such persons
may reasonably request and will instruct Intertrans' employees, counsel and
financial advisors to cooperate with Fritz in its investigation of the business
of Intertrans and its Subsidiaries and in the planning for the combination of
the businesses of Intertrans and Fritz following the consummation of the
Merger; provided that no investigation pursuant to this Section shall affect
any representation or warranty given by Intertrans to Fritz hereunder. In
addition, following public announcement of this Agreement, Intertrans will
cooperate in arranging joint meetings among representatives of Intertrans and
Fritz and persons with whom Intertrans maintains business relationships. All
requests for information made pursuant to this Section shall be directed to the
Chief Financial Officer of Intertrans or such person as may be designated by
him. All information obtained pursuant to this Section 5.03 shall be governed
by the Confidentiality Agreement dated January 23, 1995 between Fritz and
Intertrans (the "Confidentiality Agreement").
SECTION 5.04 OTHER OFFERS.
(a) Intertrans and its Subsidiaries will not, and will
use their best efforts to cause their respective officers, directors, employees
or other agents not to, directly or indirectly, (i) take any action to solicit,
initiate or encourage any Acquisition Proposal (as hereinafter defined), or
(ii) subject to the fiduciary duties of the Board of Directors under applicable
law as advised by counsel to Intertrans, engage in negotiations with, or
disclose any nonpublic information relating to Intertrans or any of its
Subsidiaries or afford access to the properties, books or records of Intertrans
or any of its Subsidiaries to, any person or entity that may be
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considering making, or has made, an Acquisition Proposal. To the extent that
Intertrans or its Subsidiaries or any of their respective officers, directors,
employees or other agents are currently involved in any discussions with
respect to any Acquisition Proposal or contemplated or proposed Acquisition
Proposal, Intertrans and its Subsidiaries shall terminate, and shall use their
best efforts to cause their respective officers, directors, employees or other
agents to terminate, such discussions immediately. The term "Acquisition
Proposal" as used herein means any offer or proposal for, or any indication of
interest in, a merger or other business combination involving Intertrans or any
of its Subsidiaries or the acquisition of any equity interest in, or a
substantial portion of the assets of, Intertrans or any of its Subsidiaries,
other than the transactions contemplated by this Agreement.
(b) Subject to the following sentence, the Board of
Directors of Intertrans shall not (i) withdraw or modify, or propose to
withdraw or modify, in a manner adverse to Fritz, the approval or
recommendation by such Board of Directors of this Agreement, the Merger or the
other transactions contemplated hereby, (ii) approve or recommend, or propose
to approve or recommend, any Acquisition Proposal (other than an Acquisition
Proposal made by Fritz or an affiliate of Fritz) or (iii) approve or authorize
Intertrans' entering into any agreement with respect to any Acquisition
Proposal. Notwithstanding the foregoing, in the event the Board of Directors
of Intertrans receives an Acquisition Proposal that, in the exercise of its
fiduciary obligations (as determined in good faith by the Board of Directors
based on the advice of outside counsel), it determines to be a Superior
Proposal (as defined below), the Board of Directors may (subject to the
following sentences) withdraw or adversely modify its approval or
recommendation of this Agreement, the Merger and the other transactions
contemplated hereby and approve or recommend any such Superior Proposal, or
approve or authorize Intertrans' entering into an agreement with respect to
such Superior Proposal, in each case at any time after the fourth business day
following notice to Fritz (a "Notice of Superior Proposal") advising Fritz that
the Board of Directors has received a Superior Proposal, specifying the
material terms of the structure of such Superior Proposal. Intertrans may take
any of the foregoing actions pursuant to the preceding sentence only if an
Acquisition Proposal that was a Superior Proposal at the time of delivery of a
Notice of Superior Proposal continues to be a Superior Proposal in light of any
improved transaction proposed by Fritz prior to the expiration of the four
business day period specified in the preceding sentence. For purposes of this
Agreement, a "Superior Proposal" means any bona fide Acquisition Proposal to
acquire, directly or indirectly, a material equity interest in or a material
amount of voting securities or assets of Intertrans or any of its subsidiaries
for consideration consisting of cash and/or securities, and otherwise on terms
which the Board of Directors of Intertrans determines in its good faith
reasonable judgment (based on the advice of a financial advisor of nationally
recognized reputation) to provide greater aggregate value to Intertrans'
shareholders than the transactions contemplated by this Agreement (or otherwise
proposed by Fritz as contemplated above).
(c) In addition to the procedures provided for in
subsection (b) above, Intertrans will (i) promptly notify Fritz after receipt
of any Acquisition Proposal or any inquiries indicating that any person is
considering making or wishes to make an Acquisition Proposal, identifying in
such notice the person making or considering making such Acquisition Proposal,
(ii) promptly notify Fritz after receipt of any request for nonpublic
information relating to
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Intertrans or any of its Subsidiaries or for access to the properties, books or
records of Intertrans or any of its Subsidiaries by any person or entity that
may be considering making, or has made, an Acquisition Proposal, identifying in
such notice the person making such request and (iii) keep Fritz advised in a
timely manner of the status and principal terms of any such Acquisition
Proposal, indication or request.
SECTION 5.05 MAINTENANCE OF BUSINESS. Intertrans will use its
reasonable best efforts to carry on its business, keep available the services
of its officers and employees and preserve its relationships with those of its
customers, agents, suppliers, licensors and others having business
relationships with it that are material to its business in substantially the
same manner as it has prior to the date hereof. If Intertrans becomes aware of
a material deterioration or facts which are likely to result in a material
deterioration in the relationship with any material customer, supplier,
licensor or others having business relationships with it, it will promptly
bring such information to the attention of the Fritz in writing.
SECTION 5.06 COMPLIANCE WITH OBLIGATIONS. Intertrans and its
Subsidiaries shall each use its reasonable best efforts to comply in all
material respects with (i) all applicable federal, state, local and foreign
laws, rules and regulations, (ii) all material agreements and obligations,
including its respective articles of incorporation and bylaws, by which it, its
properties or its assets may be bound, and (iii) all decrees, orders, writs,
injunctions, judgments, statutes, rules and regulations applicable to
Intertrans and its Subsidiaries and their respective properties or assets.
SECTION 5.07 NOTICES OF CERTAIN EVENTS. Intertrans shall, upon
obtaining knowledge of any of the following, promptly notify Fritz of:
(a) any notice or other communication from any person
alleging that the consent of such person is or may be required in connection
with the Merger;
(b) any notice or other communication from any
governmental or regulatory agency or authority in connection with the Merger;
and
(c) any actions, suits, claims, investigations or
other judicial proceedings commenced or threatened against Intertrans or any of
its Subsidiaries which, if pending on the date of this Agreement, would have
been required to have been disclosed pursuant to Section 3.12 or which relate
to the consummation of the Merger.
SECTION 5.08 CONFIDENTIALITY. Intertrans agrees that the
Confidentiality Agreement shall remain in full force and effect at all times
prior to the Effective Time and after any termination of this Agreement, and
Intertrans agrees to comply with the terms of such agreement.
SECTION 5.09 COMPLIANCE WITH THE SECURITIES ACT. Intertrans shall
use its reasonable best efforts to cause each person who is an "affiliate," as
that term is used in paragraphs (c) and (d) of Rule 145 under the Securities
Act, of Intertrans to deliver to Fritz on or prior to the
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Effective Date an Affiliates Agreement in substantially the form attached
hereto as Exhibit 5.09 (an "Affiliates Agreement").
ARTICLE VI
COVENANTS OF FRITZ AND MERGER SUB
From the date hereof until the occurrence of the earlier of (i) the
Effective Time or (ii) termination of this Agreement pursuant to Section 9.01
hereof, Fritz and Merger Sub agree that:
SECTION 6.01 CONDUCT OF FRITZ. Fritz and its Subsidiaries shall in
all material respects conduct their business in the ordinary course. Without
limiting the generality of the foregoing, from the date hereof until the
Effective Time, except as contemplated hereby or previously disclosed by Fritz
to Intertrans in writing, without the prior written consent of Intertrans:
(a) Fritz will not adopt or propose any change in its
Certificate of Incorporation or Bylaws;
(b) Fritz will not take any action that would result
in a failure to maintain the trading of Fritz Common Stock on Nasdaq without
causing such stock to be listed for trading on a national securities exchange
at or prior to the termination of its trading on Nasdaq;
(c) Except pursuant to the exercise of options
described in Section 4.05, except the granting of stock options in the ordinary
course of business consistent with past practice, and except pursuant to the
employee stock purchase plan contemplated by Section 4.05, Fritz will not issue
any Fritz Securities;
(d) Except as may be permitted by Sections 6.02 and
9.01, Fritz will not knowingly enter into any transaction that would require
the Joint Proxy Statement to be delayed or recirculated under circumstances
which would in the reasonable judgment of Intertrans delay the occurrence of
the Effective Date beyond the date specified in Section 9.01(iii); and
(e) Fritz will not, and will not permit any of its
Subsidiaries to, agree or commit to do any of the foregoing.
SECTION 6.02 STOCKHOLDERS' MEETING; PROXY MATERIAL; REGISTRATION
STATEMENT.
(a) Fritz shall promptly prepare and file with the SEC
under the Securities Act the Registration Statement and shall use all
reasonable efforts to cause the Registration Statement to be declared effective
as promptly as practicable. Fritz shall take any action required to be taken
under foreign or state securities or "blue sky" laws in connection with the
issuance of Fritz Common Stock in the Merger.
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(b) Fritz shall cause a meeting of its stockholders to
be duly called and held as soon as reasonably practicable following the
effectiveness of the Registration Statement for the purpose of voting on the
approval of the issuance of Fritz Common Stock in connection with the Merger.
The Board of Directors of Fritz shall, subject to their fiduciary duties,
recommend approval and adoption of such matters by Fritz's stockholders. In
connection with such meeting, Fritz:
(i) will, together with Merger Sub and
Intertrans, promptly prepare and file with the SEC, will use all
reasonable efforts to have cleared by the SEC and will thereafter mail
to its stockholders as promptly as practicable the Joint Proxy
Statement and all other proxy materials for such meeting;
(ii) will use all reasonable efforts to obtain
the necessary approvals by its stockholders of this Agreement and the
transactions contemplated hereby; and
(iii) will otherwise comply with all legal
requirements applicable to such meeting.
SECTION 6.03 ACCESS TO FINANCIAL AND OPERATION INFORMATION. Fritz
will give Intertrans, its counsel, financial advisors, auditors and other
authorized representatives reasonable access during normal business hours to
the offices, properties, books and records of Fritz and its Subsidiaries will
furnish to Intertrans, its counsel, financial advisors, auditors and other
authorized representatives such financial and operating data as such persons
may reasonably request and will instruct the Fritz's employees, counsel and
financial advisors to cooperate with Intertrans in its investigation of the
business of Fritz and its Subsidiaries and in the planning for the combination
of the businesses of Intertrans and Fritz following the consummation of the
Merger; provided that no investigation pursuant to this Section shall affect
any representation or warranty given by Fritz to Intertrans hereunder. In
addition, following public announcement of this Agreement, Fritz will cooperate
in arranging joint meetings among representatives of Fritz and Intertrans and
persons with whom Fritz maintains business relationships. All requests for
information made pursuant to this Section shall be directed to the Chief
Financial Officer of Fritz or such person as may be designated by him. All
information obtained pursuant to this Section 6.03 shall be governed by the
Confidentiality Agreement.
SECTION 6.04 MAINTENANCE OF BUSINESS. Fritz will use its reasonable
best efforts to carry on its business, keep available the services of its
officers and employees and preserve its relationships with those of its
customers, suppliers, licensors and others having business relationships with
it that are material to its business in substantially the same manner as it has
prior to the date hereof. If Fritz becomes aware of a material deterioration
or facts which are likely to result in a material deterioration in the
relationship with any material customer, supplier, licensor or others having
business relationships with it, it will promptly bring such information to the
attention of Intertrans in writing.
SECTION 6.05 COMPLIANCE WITH OBLIGATIONS. Fritz and its Subsidiaries
shall each use its reasonable best efforts to comply in all material respects
with (i) all applicable federal, state,
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local and foreign laws, rules and regulations, (ii) all material agreements and
obligations, including its respective certificate or articles of incorporation
and bylaws, by which it, its properties or its assets may be bound, and (iii)
all decrees, orders, writs, injunctions, judgments, statutes, rules and
regulations applicable to Fritz and its Subsidiaries and their respective
properties or assets.
SECTION 6.06 NOTICES OF CERTAIN EVENTS. Fritz shall, upon obtaining
knowledge of any of the following, promptly notify Intertrans of:
(a) any notice or other communication from any person
alleging that the consent of such person is or may be required in connection
with the Merger;
(b) any notice or other communication from any
governmental or regulatory agency or authority in connection with the Merger;
and
(c) any actions, suits, claims, investigations or
other judicial proceedings commenced or threatened against Fritz or any of its
Subsidiaries which, if pending on the date of this Agreement, would have been
required to have been disclosed pursuant to Section 4.13 or which relate to the
consummation of the Merger.
SECTION 6.07 CONFIDENTIALITY. Fritz agrees that the Confidentiality
Agreement shall remain in full force and effect at all times prior to the
Effective Time and after any termination of this Agreement, and Fritz agrees to
comply with the terms of such agreement.
SECTION 6.08 OBLIGATIONS OF MERGER SUB. Fritz will take all action
necessary to cause Merger Sub to perform its obligations under this Agreement
and to consummate the Merger on the terms and conditions set forth in this
Agreement. Merger Sub will not issue any shares of its capital stock, any
securities convertible into or exchangeable for its capital stock, or any
option, warrant or other right to acquire its capital stock to any person or
entity other than Fritz or a wholly owned Subsidiary of Fritz. Merger Sub
shall not incur any indebtedness or liabilities of any kind except pursuant to
this Agreement.
SECTION 6.09 NOTICE TO AFFILIATES. Fritz shall, at least 30 days
prior to the Effective Date, cause to be delivered to each person Fritz
believes to be an "affiliate," as that term is used in paragraphs (c) and (d)
of Rule 145 under the Securities Act, of Fritz a notice informing such persons
of restrictions on transfer resulting from the Merger being accounted for as a
pooling of interests in accordance with generally accepted accounting
principles and all published rules, regulations and policies of the SEC.
36.
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ARTICLE VII
COVENANTS OF FRITZ AND INTERTRANS
From the date hereof until the occurrence of the earlier of (i) the
Effective Time or (ii) termination of this Agreement pursuant to Section 9.01
hereof, Intertrans and Fritz agree that:
SECTION 7.01 ADVICE OF CHANGES. Each party will promptly advise each
other party in writing (i) of any event known to its executive officers
occurring subsequent to the date of this Agreement that would render any
representation or warranty of such party contained in this Agreement, if made
on or as of the date of such event or the Effective Date, untrue, inaccurate or
misleading in any material respect and (ii) of any Material Adverse Change in
the business condition of the party.
SECTION 7.02 REGULATORY APPROVALS. Each party shall execute and
file, or join in the execution and filing of, any application or other document
that may be necessary in order to obtain the authorization, approval or consent
of any governmental body, federal, state, local or foreign, which may be
reasonably required, or that the other company may reasonably request, in
connection with the consummation of the Merger. Each party shall use its
reasonable best efforts to obtain all such authorizations, approvals and
consents.
SECTION 7.03 ACTIONS CONTRARY TO STATED INTENT. No party hereto
shall, from or after the date hereof and either before or after the Effective
Time, take any action that would prevent the Merger from qualifying as a
reorganization under Section 368(a) of the Code or prevent the business
combination to be effected by the Merger from being accounted for as a "pooling
of interests" under generally accepted accounting principles. Each of Fritz
and Intertrans shall use its reasonable best efforts to cause its affiliates
not to take any action that would preclude the ability of Fritz to account for
the business combination to be effected by the Merger as a "pooling of
interests."
SECTION 7.04 CERTAIN FILINGS. Intertrans and Fritz shall cooperate
with one another:
(a) in connection with the preparation, filing and
causing to become effective or clearance, as applicable of the Joint Proxy
Statement and the Registration Statement and in connection with the
registration or qualification of, or ascertaining the availability of or
obtaining appropriate exemptions from registration or qualification with
respect to, the Fritz Common Stock issued in connection with the Merger covered
by the Registration Statement under applicable state securities or "blue sky"
laws;
(b) in connection with the preparation of any filing
required by the HSR Act;
(c) in determining whether any action by or in respect
of, or filing with, any governmental body, agency or official, or authority is
required, or any actions, consents,
37.
<PAGE> 43
approvals or waivers are required to be obtained from parties to any material
contracts, in connection with the consummation of the transactions contemplated
by this Agreement; and
(d) in seeking any such actions, consents, approvals
or waivers or making any such filings, furnishing information required in
connection therewith or with the Joint Proxy Statement or the Registration
Statement and seeking timely to obtain any such actions, consents, approvals or
waivers.
SECTION 7.05 COMMUNICATIONS. Neither Intertrans nor Fritz will
furnish any written communication to its stockholders or to the public
generally if the subject matter thereof relates to the transactions
contemplated by this Agreement without the prior approval of the other of them
as to the content thereof, which approval shall not be unreasonably withheld;
provided that the foregoing shall not be deemed to prohibit any disclosure
required by any applicable law.
SECTION 7.06 SATISFACTION OF CONDITIONS PRECEDENT. Fritz and
Intertrans will each use its reasonable best efforts to satisfy or cause to be
satisfied all the conditions precedent that are set forth in Article VIII, as
applicable to each of them, and to cause the transactions contemplated by this
Agreement to be consummated, and, without limiting the generality of the
foregoing, to obtain all material consents and authorizations of third parties
and to make all filings with, and give all notices to, third parties that may
be necessary or reasonably required on its part in order to effect the
transactions contemplated hereby.
SECTION 7.07 STOCKHOLDERS' MEETING DATES. The parties agree that
they will use their reasonable best efforts to cause their respective
stockholder meetings referred to in Sections 5.02 and 6.02(b) to be held on the
same day. Such stockholder meetings shall be convened 40 days following the
date on which the Registration Statement shall be declared effective by the
SEC, unless otherwise mutually agreed by the parties hereto.
ARTICLE VIII
CONDITIONS TO THE MERGER
SECTION 8.01 CONDITIONS TO OBLIGATIONS OF FRITZ AND MERGER SUB. The
obligations of Fritz and Merger Sub hereunder are subject to the fulfillment or
satisfaction, on and as of the Effective Date, of each of the following
conditions (any one or more of which may be waived by Fritz, but only in a
writing signed by Fritz):
(a) Accuracy of Representations and Warranties. The
representations and warranties of Intertrans contained in Article III (other
than representations and warranties regarding litigation or other proceedings
connected with the Merger, which shall be governed solely by the standard set
forth in Section 8.03(e)) shall be true and accurate in all material respects
on and as of the Effective Date with the same force and effect as if they had
been made on the Effective Date (except to the extent a representation or
warranty speaks specifically as of an earlier date) and Intertrans shall have
provided Fritz with a certificate executed by the
38.
<PAGE> 44
President and the Chief Financial Officer of Intertrans, dated as of the
Effective Date, to such effect.
(b) Covenants. Intertrans shall have performed and
complied with all of its covenants contained in Articles V and VII in all
material respects on or before the Effective Date, and Fritz shall receive a
certificate to such effect signed by Intertrans' President and Chief Financial
Officer.
(c) No Material Adverse Change. Except as set forth
in the Intertrans Disclosure Schedule, there shall have been no Material
Adverse Change in Intertrans since the Intertrans Balance Sheet Date.
(d) Affiliates Agreements. Fritz shall have received
from each person or entity who may be deemed pursuant to Section 5.09 to be an
affiliate of Intertrans a duly executed Affiliates Agreement, and such
Affiliates Agreements shall remain in full force and effect.
(e) Consents. All written consents, assignments,
waivers or authorizations, other than Governmental Authorizations, that are
required as a result of the Merger for the continuation in full force and
effect of any material contracts or leases of Intertrans shall have been
obtained.
(f) Tax-Free Reorganization. Fritz shall have
received a written opinion from its counsel to the effect that the Merger will
constitute a reorganization within the meaning of Section 368 of the Code. In
preparing such opinion, counsel may rely on (and to the extent reasonably
required, the parties and Intertrans' shareholders shall make) reasonable
representations related thereto.
SECTION 8.02 CONDITIONS TO OBLIGATIONS OF INTERTRANS. Intertrans'
obligations hereunder are subject to the fulfillment or satisfaction, on and as
of the Effective Date, of each of the following conditions (any one or more of
which may be waived by Intertrans, but only in a writing signed by Intertrans):
(a) Accuracy of Representations and Warranties. The
representations and warranties of Fritz set forth in Article IV (other than
representations and warranties regarding litigation or other proceedings
connected with the Merger, which shall be governed solely by the standard set
forth in Section 8.03(e)) shall be true and accurate in all material respects
on and as of the Effective Date with the same force and effect as if they had
been made on the Effective Date (except to the extent a representation or
warranty speaks specifically as of an earlier date and except for changes
contemplated by this Agreement) and Fritz shall have provided Intertrans with a
certificate executed by the President and the Chief Financial Officer of Fritz,
dated as of the Effective Date, to such effect.
(b) Covenants. Fritz shall have performed and
complied with all of its covenants contained in Section 2.03 and Articles VI
and VII in all material respects on or before
39.
<PAGE> 45
the Effective Date, and Intertrans shall receive a certificate to such effect
signed by Fritz's President and Chief Financial Officer.
(c) No Material Adverse Change. Except as set forth
in the Fritz Disclosure Schedule, there shall have been no Material Adverse
Change in Fritz since the Fritz Balance Sheet Date.
(d) Tax-Free Reorganization. Intertrans shall have
received a written opinion from its counsel to the effect that the Merger will
constitute a reorganization within the meaning of Section 368 of the Code. In
preparing such opinion, counsel may rely on (and to the extent reasonably
required, the parties and Intertrans' shareholders shall make) reasonable
representations related thereto.
SECTION 8.03 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of Intertrans and Fritz hereunder are subject to the fulfillment,
on and as of the Effective Date, of each of the following conditions (any one
or more of which may be waived by such parties, but only in a writing signed by
such parties):
(a) Stockholder Approval. Fritz's stockholders shall
have duly approved the issuance of Fritz Common Stock in connection with the
Merger, and Intertrans' shareholders shall have duly approved this Agreement,
the Articles of Merger and the Merger, all in accordance with applicable laws
and regulatory requirements.
(b) Registration Statement. The Registration
Statement shall have become effective under the Securities Act and shall not be
the subject of any stop order or proceedings seeking a stop order, and the
Joint Proxy Statement shall on the Effective Date not be subject to any
proceedings commenced or threatened by the SEC.
(c) Opinion of Accountants. Fritz and Intertrans
shall have received an opinion from KPMG Peat Marwick, in form reasonably
satisfactory to Fritz and Intertrans (and generally in accordance with
Statement of Auditing Standards No. 50), to the effect that the business
combination to be effected by the Merger would be properly accounted for as a
pooling of interests in accordance with generally accepted accounting
principles and all published rules, regulations and policies of the SEC.
(d) Illegality or Legal Constraint. No statute, rule,
regulation, executive order, decree, injunction or restraining order shall have
been enacted, promulgated or enforced (and not repealed, superseded or
otherwise made inapplicable) by any court or governmental authority which
prohibits the consummation of the Merger (each party agreeing to use its
reasonable best efforts to have any such order, decree or injunction lifted).
(e) Governmental Authorizations. There shall have
been obtained any and all Governmental Authorizations, permits, approvals and
consents of securities or "blue sky" commissions of any jurisdiction and of any
other governmental body or agency, that may reasonably be deemed necessary so
that the consummation of the Merger will be in compliance
40.
<PAGE> 46
with applicable laws, the failure to comply with which would have a Material
Adverse Effect on Fritz, Intertrans or the Surviving Corporation or would be
reasonably likely to subject any of Fritz, Merger Sub, Intertrans or any of
their respective directors or officers to substantial penalties or criminal
liability.
(f) HSR Act. The waiting period (and any extension
thereof) applicable to the consummation of the Merger under the HSR Act shall
have expired or been terminated.
ARTICLE IX
TERMINATION OF AGREEMENT
SECTION 9.01 TERMINATION. In addition to those termination rights
provided for in Sections 1.02(b)(iv) and (v) hereof, this Agreement may be
terminated at any time prior to the Effective Time whether before or after the
approval by the stockholders of Intertrans or Fritz:
(i) by mutual consent of the Boards of
Directors of Fritz, Merger Sub and Intertrans;
(ii) by Fritz or Intertrans, if, at the meeting
of Intertrans shareholders (including any adjournment or postponement
thereof) called pursuant to Section 5.02 hereof, the requisite vote of
the shareholders of Intertrans shall not have been obtained;
(iii) by Fritz or Intertrans, if the Effective
Date shall not have occurred on or before July 31, 1995; provided that
the right to terminate this Agreement pursuant to this clause (iii)
shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the significant cause of, or
resulted in, the failure of the Effective Date to occur on or before
such date;
(iv) by Fritz, if it is not in material breach
of its obligations under this Agreement and if any person or entity
other than Fritz or any of Fritz's affiliates shall purchase forty
percent (40%) or more of the outstanding shares of Intertrans Common
Stock;
(v) by Fritz or Intertrans, if, at the meeting
of Fritz stockholders (including any adjournment or postponement
thereof) called pursuant to Section 6.02(b) hereof, the requisite vote
of stockholders of Fritz shall not have been obtained;
(vi) by Fritz, if it is not in material breach
of its obligations under this Agreement and if the Board of Directors
of Intertrans shall have: (A) withdrawn or adversely modified its
recommendation of the Merger; or (B) recommended or approved any
acceptance by Intertrans' stockholders of any Acquisition Proposal
(other than an Acquisition Proposal made by Fritz or an affiliate of
Fritz);
41.
<PAGE> 47
(vii) by Fritz, if it is not in material breach
of its obligations under this Agreement, and if (A) there has been a
breach by Intertrans of any of its representations and warranties
hereunder such that Section 8.01(a) will not be satisfied or (B) there
has been a material breach on the part of Intertrans of any of its
covenants or agreements contained in this Agreement such that Section
8.01(b) will not be satisfied, and, in both case (A) and case (B),
such breach has not been promptly cured after notice to Intertrans;
(viii) by Intertrans, if it is not in material
breach of its obligations under this Agreement, and if (A) there has
been a breach by Fritz or Merger Sub of any of their respective
representations and warranties hereunder such that Section 8.02(a)
will not be satisfied or (B) there has been a material breach on the
part of Fritz or Merger Sub of any of their respective covenants or
agreements contained in this Agreement such that Section 8.02(b) will
not be satisfied, and, in both case (A) and case (B), such breach has
not been promptly cured after notice to Fritz and Merger Sub; or
(ix) by Intertrans, if the Board of Directors
shall have entered into a definitive agreement with respect to a
Superior Proposal in compliance with the procedures set forth in
Section 5.04.
SECTION 9.02 EFFECT OF TERMINATION. In the event of termination of
this Agreement by either Fritz or Intertrans as provided in Section 9.01
hereof, this Agreement shall forthwith become void (except as set forth in
Sections 10.02 and 10.03) and there shall be no liability on the part of Fritz,
Merger Sub or Intertrans or their respective officers or directors, except for
the liability of any party then in breach of its obligations under this
Agreement and except for any breach of a party's obligations under those
surviving provisions referred to in Sections 10.02 and 10.03.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 FURTHER ASSURANCES. Each party agrees to cooperate
fully with the other parties and to execute such further instruments, documents
and agreements and to give such further written assurances as may be reasonably
requested by any other party to better evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
SECTION 10.02 FEES AND EXPENSES.
(a) Except as set forth in subsection (b) below, each
party shall bear its own fees and expenses, including counsel fees and fees of
brokers and investment bankers contracted by such party, in connection with the
transaction contemplated hereby.
42.
<PAGE> 48
(b) Notwithstanding the terms of subsection (a) above,
the following payments shall be made in connection with the termination of this
Agreement pursuant to Section 9.01:
(i) If (A) this Agreement shall be terminated
by either Fritz or Intertrans in the circumstances contemplated by
Section 9.01(ii), and (B) prior to the time of the Intertrans
shareholder meeting called pursuant to Section 5.02 an Acquisition
Proposal (other than an Acquisition Proposal made by Fritz or one of
its affiliates) shall have been received by Intertrans, then, at the
time of such termination, Intertrans shall pay to Fritz in immediately
available funds an amount equal to $3,000,000, and, furthermore, if
following such termination (C) the principal transaction contemplated
by any Acquisition Proposal (other than an Acquisition Proposal made
by Fritz or one of its affiliates) shall have been consummated within
12 months of the date on which this Agreement shall have been
terminated (the "Termination Date"), then, concurrently with the
consummation of such transaction, Intertrans shall pay to Fritz in
immediately available funds an additional amount equal to $4,500,000;
(ii) If (A) this Agreement shall be terminated
by either Fritz or Intertrans in the circumstances contemplated by
Section 9.01(ii), and (B) prior to the time of the Intertrans
shareholder meeting called pursuant to Section 5.02 no Acquisition
Proposal (other than an Acquisition Proposal made by Fritz or one of
its affiliates) shall have been received by Intertrans, and following
such termination (C) a definitive agreement relating to any
Acquisition Proposal (other than an Acquisition Proposal made by Fritz
or one of its affiliates) shall have been entered into by Intertrans
or one of its affiliates within six months of the Termination Date,
and (D) the principal transaction contemplated by such definitive
agreement shall have been consummated within 12 months of the
Termination Date, then, concurrently with the consummation of such
transaction, Intertrans shall pay to Fritz in immediately available
funds an amount equal to $7,500,000;
(iii) If (A) this Agreement shall be terminated
by either Fritz or Intertrans in the circumstances contemplated by
Section 9.01(iii) or by Fritz in the circumstances contemplated by
Sections 9.01(iv) or (vii), and (B) the principal transaction
contemplated by any Acquisition Proposal (other than an Acquisition
Proposal made by Fritz or one of its affiliates) shall have been
consummated within nine months of the Termination Date, whether or not
such Acquisition Proposal shall have been received by Intertrans at
the Termination Date, then, concurrently with the consummation of such
transaction, Intertrans shall pay to Fritz in immediately available
funds an additional amount equal to $7,500,000;
(iv) If (A) this Agreement shall be terminated
by Fritz in the circumstances contemplated by Section 9.01(vi) or by
Intertrans in the circumstances contemplated by Section 9.01(ix),
then, at the time of such termination, Intertrans shall pay to Fritz
in immediately available funds an amount equal to $3,000,000, and,
furthermore, if following such termination (B) the principal
transaction contemplated by
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<PAGE> 49
any Acquisition Proposal (other than an Acquisition Proposal made by
Fritz or one of its affiliates) shall have been consummated within 12
months of the Termination Date, whether or not such Acquisition
Proposal shall have been received by Intertrans at the Termination
Date, then, concurrently with the consummation of such transaction,
Intertrans shall pay to Fritz in immediately available funds an
additional amount equal to $4,500,000;
(v) If (A) this Agreement shall be terminated
by Fritz or Intertrans in the circumstances contemplated by Section
9.01(v), and (B) at the time of such termination Intertrans is not in
material breach of its obligations under this Agreement, and (C) at
the time of such termination the Board of Directors of Intertrans
shall not have (x) withdrawn or adversely modified its recommendation
of the Merger or (y) recommended or approved any acceptance by
Intertrans' stockholders of any Acquisition Proposal (other than an
Acquisition Proposal made by Fritz or an affiliate of Fritz), then, at
the time of such termination, Fritz shall pay to Intertrans in
immediately available funds an additional amount equal to $2,500,000.
SECTION 10.03 SURVIVAL. The agreements of Intertrans, Fritz and
Merger Sub contained in Articles I and X and Section 2.03 shall survive the
consummation of the Merger. The agreements of Intertrans, Fritz and Merger Sub
contained in Sections 5.08, 6.07, 9.02 and 10.02 shall survive the termination
of this Agreement. All other representations, warranties, agreements and
covenants in this Agreement shall be deemed to be conditions to the Merger and
shall not survive the consummation of the Merger or the termination of this
Agreement.
SECTION 10.04 NOTICES. Whenever any party hereto desires or is
required to give any notice, demand, or request with respect to this Agreement,
each such communication shall be in writing and shall be effective only if it
is delivered by personal service or mailed, United States registered or
certified mail, postage prepaid, or sent by prepaid overnight courier or
confirmed telecopier, addressed as follows:
Fritz and Merger Sub:
Fritz Companies, Inc.
706 Mission Street
San Francisco, CA 94103
Telecopy: (415) 904-8326
Attention: Jan C. Raymond, Esq.
Senior Vice President and General Counsel
44.
<PAGE> 50
With copy to:
Brobeck, Phleger & Harrison
One Market Plaza
Spear Street Tower
San Francisco, CA 94105
Telecopy: (415) 442-1010
Attention: Ronald B. Moskovitz, Esq.
Intertrans:
Intertrans Corporation
125 E. John Carpenter Freeway
Suite 900
Irving, TX 75062
Telecopy: (214) 830-8869
Attention: John Witt
Chief Financial Officer
With copy to:
Intertrans Corporation
125 E. John Carpenter Freeway
Suite 900
Irving, TX 75062
Telecopy: (214) 830-8869
Attention: Brett Campbell, Esq.
General Counsel
Such communications shall be effective when they are
received by the addressee thereof. Any party may change its address for such
communications by giving notice thereof to the other parties in conformity with
this Section.
SECTION 10.05 GOVERNING LAWS. The corporate law of the States of
Texas and California shall govern all issues concerning the Merger. The laws
of the State of Delaware (irrespective of its choice of law principles) shall
govern all other issues concerning the validity of this Agreement, the
construction of its terms, and the interpretation and enforcement of the rights
and duties of the parties.
SECTION 10.06 BINDING UPON SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Agreement and the provisions hereof shall be binding upon each of the parties,
their permitted successors and assigns. This Agreement may not be assigned by
any party without the prior consent of the other; provided, however, that Fritz
shall be permitted at any time prior to the Effective Time to cause the
assignment of Merger Sub's rights and obligations under this Agreement to
another
45.
<PAGE> 51
wholly owned Subsidiary of Fritz (without in any way relieving Fritz of its
obligations under this Agreement with respect to Merger Sub or the Merger).
SECTION 10.07 SEVERABILITY. If any provision of this Agreement, or
the application thereof, shall for any reason or to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to other persons or circumstances shall continue in full force and
effect and in no way be affected, impaired or invalidated.
SECTION 10.08 ENTIRE AGREEMENT. This Agreement, together with the
Confidentiality Agreement, and the other agreements and instruments referenced
herein constitute the entire understanding and agreement of the parties with
respect to the subject matter hereof and supersede all prior and
contemporaneous agreements or understandings, inducements or conditions,
express or implied, written or oral, between the parties with respect hereto.
SECTION 10.09 OTHER REMEDIES. Except as otherwise provided herein,
any and all remedies herein expressly conferred upon a party shall be deemed
cumulative with and not exclusive of any other remedy conferred hereby or by
law on such party, and the exercise of any one remedy shall not preclude the
exercise of any other.
SECTION 10.10 AMENDMENT AND WAIVERS. Any term or provision of this
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a writing signed by the party to be
bound thereby. The waiver by a party of any breach hereof or default in the
performance hereof shall not be deemed to constitute a waiver of any other
default or any succeeding breach or default, unless such waiver so expressly
states. At any time before or after approval of this Agreement and the Merger
by the shareholders of Intertrans and prior to the Effective Time, this
Agreement may be amended or supplemented by Intertrans or Fritz with respect to
any of the terms contained in this Agreement, except that following approval by
the shareholders of Intertrans there shall be no amendment or change to the
provisions hereof with respect to the Exchange Ratio without further approval
by the shareholders of Intertrans, and no other amendment shall be made which
by law requires further approval by such shareholders without such further
approval.
SECTION 10.11 NO WAIVER. The failure of any party to enforce any of
the provisions hereof shall not be construed to be a waiver of the right of
such party thereafter to enforce such provisions.
SECTION 10.12 CONSTRUCTION OF AGREEMENT. A reference to an Article,
Section or an Exhibit shall mean an Article of, a Section in, or Exhibit to,
this Agreement unless otherwise explicitly set forth. The titles and headings
herein are for reference purposes only and shall not in any manner limit the
construction of this Agreement which shall be considered as a whole. The words
"include," "includes" and "including" when used herein shall be deemed in each
case to be followed by the words "without limitation."
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SECTION 10.13 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original as against any party
whose signature appears thereon and all of which together shall constitute one
and the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the paries reflected hereon as signatories.
47.
<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FRITZ COMPANIES, INC.
By /s/ Lynn C. Fritz
------------------------
Name: Lynn C. Fritz
Title: President
FRITZ AIR FREIGHT
By /s/ Lynn C. Fritz
------------------------
Name: Lynn C. Fritz
Title: President
INTERTRANS CORPORATION
By /s/ Sam N. Wilson
------------------------
Name: Sam N. Wilson
Title: Chief Executive Officer
48.
<PAGE> 54
Exhibit 1.01
ARTICLES OF MERGER
MERGING
FRITZ AIR FREIGHT
INTO
INTERTRANS CORPORATION
Pursuant to the provisions of the Texas Business Corporation Act, the
foreign corporation and the domestic corporation herein named do hereby adopt
the following Articles of Merger for the purpose of merging the foreign
corporation with and into the domestic corporation.
1. The names of the constituent corporations are Fritz Air
Freight, which is a corporation organized under the laws of the State of
California, and Intertrans Corporation, which is a corporation organized under
the laws of the State of Texas.
2. Intertrans Corporation shall be the surviving corporation
under its present name pursuant to the terms of the Texas Business Corporation
Act.
3. A plan of merger (the "Plan") was approved and adopted by the
shareholders of each of the undersigned corporations in the manner prescribed
by the laws of their respective jurisdictions of incorporation. A copy of the
Plan, which sets forth, inter alia, the manner in which the exchange,
classification or cancellation of issued shares of the undersigned corporations
shall be effected, is attached hereto as Exhibit A.
4. As to each of the undersigned corporations, (a) the
designation and the number of shares of each class outstanding and (b) the
number of votes to which such shares are entitled, are as follows:
<TABLE>
<CAPTION>
DESIGNATION OF NUMBER OF NUMBER OF
CLASS SHARES VOTES
----- ------ -----
<S> <C>
Intertrans Corporation Common
Fritz Air Freight Common
</TABLE>
5. As to Intertrans Corporation, the total number of shares of
Common Stock (and the total number of votes associated therewith) voted for and
against the Plan, respectively, and as to Fritz Air Freight, the total number
of shares of Common Stock (and the total number of votes associated therewith)
voted for and against the Plan, respectively, are as follows:
1.
<PAGE> 55
<TABLE>
<CAPTION>
Designation Number of Number of Number of
of Class Shares Votes For Votes Against
-------- ------ --------- -------------
<S> <C>
Intertrans Corporation Common
Fritz Air Freight Common
</TABLE>
Executed on ____________, 1995
Intertrans Corporation
By: __________________________________
Name:
Title:
Fritz Air Freight
By: __________________________________
Name:
Title:
<PAGE> 56
Exhibit A
PLAN OF MERGER
THIS PLAN OF MERGER is dated _____________, 1995 by and
between Intertrans Corporation, a Texas corporation ("Intertrans"), and Fritz
Air Freight, a California corporation ("Merger Corporation").
RECITALS
WHEREAS, the shareholders of Intertrans (each individually a
"Shareholder" and collectively, the "Shareholders") own in the aggregate
_________ shares of Common Stock, no par value (the "Intertrans Common Stock")
of Intertrans, constituting all of the outstanding capital stock of Intertrans;
WHEREAS, Intertrans is a corporation duly organized and
existing under the laws of the State of Texas;
WHEREAS, Merger Corporation is a corporation duly organized
and existing under the laws of the State of California, with authorized capital
stock of 2,400 shares of common stock, $10.00 par value per share, all of which
immediately prior to the Effective Time, as defined in Section 2 hereof, will
be issued and outstanding and held by Fritz Companies, Inc., a Delaware
corporation ("Fritz"); and
WHEREAS, Intertrans and Merger Corporation deem it advisable
to merge Merger Corporation with and into Intertrans pursuant to Section 368(a)
of the Internal Revenue Code of 1986, as amended, upon the terms and conditions
hereinafter set forth (the "Merger").
NOW THEREFORE, in consideration of the foregoing, Intertrans
and Merger Corporation hereby adopt this Plan of Merger:
1. THE MERGER. In accordance with the provisions of
this Plan of Merger, the Texas Business Corporation Act (the "TBCA") and the
California General Corporation Law (the "CGCL"), at the Effective Time, Merger
Corporation shall be merged with and into Intertrans, which shall be the
surviving corporation (hereinafter sometimes the "Surviving Corporation"), and
the Surviving Corporation shall thereupon (a) be a wholly owned subsidiary of
Fritz, (b) continue its corporate existence under the laws of the State of
Texas, (c) retain its present name, (d) succeed to all rights, assets,
liabilities and obligations of Merger Corporation in accordance with and as
more particularly set forth in this Plan of Merger and pursuant to the TBCA.
At the Effective Time, the separate existence of Merger Corporation shall
cease.
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<PAGE> 57
2. ARTICLES OF MERGER; EFFECTIVE TIME. At the closing
of the Merger, the parties hereto shall cause the Merger to be consummated by
the execution and filing of Articles of Merger (the "Articles of Merger") with
the Secretary of State of the States of Texas and California, together with the
appropriate fees and franchise taxes, in accordance with the provisions of the
TBCA and the CGCL. The Merger shall become effective upon the issuance of a
Certificate of Merger by the Secretary of State of the State of Texas (the
"Effective Time").
3. CAPITALIZATION. The number of authorized shares of
the capital stock of the Surviving Corporation shall be 25,000,000 shares,
consisting of 23,000,000 shares of common stock, no par value, and 2,000,000
shares of preferred stock, $10.00 par value per share.
4. ARTICLES OF INCORPORATION. At the Effective Time,
the Articles of Incorporation of Intertrans, as in effect immediately prior to
the Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation amended as follows:
[Insert amendments to Articles of Incorporation]
5. BYLAWS. At the Effective Time, the Bylaws of
Intertrans, as in effect immediately prior to the Effective Time, shall be the
Bylaws of the Surviving Corporation amended as follows:
[Insert amendments to Bylaws]
6. DIRECTORS AND OFFICERS. At the Effective Time (a)
each of the officers of Intertrans immediately prior to the Effective Time
shall be an officer of the Surviving Corporation, in the same capacity or
capacities, to serve until his successor shall have been duly appointed and
qualified and (b) each director of Intertrans shall cease to hold such
position, and the directors of Merger Corporation immediately prior to the
Effective Time shall be the directors of Surviving Corporation, each of whom
shall hold such position until his successor shall have been elected and
qualified to serve, or otherwise as provided in the Articles of Incorporation
or Bylaws of the Surviving Corporation.
7. CAPITAL STOCK OF MERGER CORPORATION. Each share of
common stock of Merger Corporation validly issued and outstanding immediately
prior to the Effective Time shall, at the Effective Time and by virtue of the
Merger thereupon, be converted into and become one share of Intertrans Common
Stock. Each share of such Intertrans Common Stock issued pursuant to this
Section 7 shall be validly issued, fully paid and nonassessable.
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<PAGE> 58
8. CAPITAL STOCK OF INTERTRANS. Each and every share of
Intertrans Common Stock issued and outstanding immediately prior to the
Effective Time (except for stock owned directly or indirectly by Intertrans, a
subsidiary of Intertrans, Fritz or a subsidiary of Fritz and except for shares
held by Shareholders who have validly exercised dissenters' rights under the
TBCA) shall be converted as of the Effective Time into the right to receive
______ of a share of common stock, par value $.01 per share of Fritz (the
"Fritz Common Stock"). At the Effective Time each outstanding option to
purchase Intertrans Common Stock shall pertain to and apply to Fritz Common
Stock which a holder of the number of underlying shares of Intertrans Common
Stock would have been entitled pursuant to the Merger.
9. SHAREHOLDER APPROVAL. This Plan of Merger shall be
submitted to the shareholders of Intertrans for their approval or rejection
pursuant to the TBCA and to the shareholder of Merger Corporation for their
approval or rejection pursuant to the CGCL. In the event that such shareholder
approval is obtained by both Intertrans and Merger Corporation, Intertrans and
Merger Corporation hereby agree that they will cause to be executed and filed
and/or recorded any document or documents prescribed by the laws of the States
of Texas and California, and that they will cause to be performed all necessary
acts required by such states and elsewhere to effectuate the Merger.
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<PAGE> 59
Exhibit 1.01
ARTICLES OF MERGER
MERGING
FRITZ AIR FREIGHT
INTO
INTERTRANS CORPORATION
Pursuant to the provisions of the Texas Business Corporation Act, the
foreign corporation and the domestic corporation herein named do hereby adopt
the following Articles of Merger for the purpose of merging the foreign
corporation with and into the domestic corporation.
1. The names of the constituent corporations are Fritz Air
Freight, which is a corporation organized under the laws of the State of
California, and Intertrans Corporation, which is a corporation organized under
the laws of the State of Texas.
2. Intertrans Corporation shall be the surviving corporation
under its present name pursuant to the terms of the Texas Business Corporation
Act.
3. A plan of merger (the "Plan") was approved and adopted by the
shareholders of each of the undersigned corporations in the manner prescribed
by the laws of their respective jurisdictions of incorporation. A copy of the
Plan, which sets forth, inter alia, the manner in which the exchange,
classification or cancellation of issued shares of the undersigned corporations
shall be effected, is attached hereto as Exhibit A.
4. As to each of the undersigned corporations, (a) the
designation and the number of shares of each class outstanding and (b) the
number of votes to which such shares are entitled, are as follows:
<TABLE>
<CAPTION>
DESIGNATION OF NUMBER OF NUMBER OF
CLASS SHARES VOTES
----- ------ -----
<S> <C>
Intertrans Corporation Common
Fritz Air Freight Common
</TABLE>
5. As to Intertrans Corporation, the total number of shares of
Common Stock (and the total number of votes associated therewith) voted for and
against the Plan, respectively, and
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<PAGE> 60
as to Fritz Air Freight, the total number of shares of Common Stock (and the
total number of votes associated therewith) voted for and against the Plan,
respectively, are as follows:
<TABLE>
<CAPTION>
Designation Number of Number of Number of
of Class Shares Votes For Votes Against
-------- ------ --------- -------------
<S> <C>
Intertrans Corporation Common
Fritz Air Freight Common
</TABLE>
Executed on ____________, 1995
Intertrans Corporation
By: __________________________________
Name:
Title:
Fritz Air Freight
By: __________________________________
Name:
Title:
<PAGE> 61
Exhibit A
PLAN OF MERGER
THIS PLAN OF MERGER is dated _____________, 1995 by and
between Intertrans Corporation, a Texas corporation ("Intertrans"), and Fritz
Air Freight, a California corporation ("Merger Corporation").
RECITALS
WHEREAS, the shareholders of Intertrans (each individually a
"Shareholder" and collectively, the "Shareholders") own in the aggregate
_________ shares of Common Stock, no par value (the "Intertrans Common Stock")
of Intertrans, constituting all of the outstanding capital stock of Intertrans;
WHEREAS, Intertrans is a corporation duly organized and
existing under the laws of the State of Texas;
WHEREAS, Merger Corporation is a corporation duly organized
and existing under the laws of the State of California, with authorized capital
stock of 2,400 shares of common stock, $10.00 par value per share, all of which
immediately prior to the Effective Time, as defined in Section 2 hereof, will
be issued and outstanding and held by Fritz Companies, Inc., a Delaware
corporation ("Fritz"); and
WHEREAS, Intertrans and Merger Corporation deem it advisable
to merge Merger Corporation with and into Intertrans pursuant to Section 368(a)
of the Internal Revenue Code of 1986, as amended, upon the terms and conditions
hereinafter set forth (the "Merger").
NOW THEREFORE, in consideration of the foregoing, Intertrans
and Merger Corporation hereby adopt this Plan of Merger:
1. THE MERGER. In accordance with the provisions of
this Plan of Merger, the Texas Business Corporation Act (the "TBCA") and the
California General Corporation Law (the "CGCL"), at the Effective Time, Merger
Corporation shall be merged with and into Intertrans, which shall be the
surviving corporation (hereinafter sometimes the "Surviving Corporation"), and
the Surviving Corporation shall thereupon (a) be a wholly owned subsidiary of
Fritz, (b) continue its corporate existence under the laws of the State of
Texas, (c) retain its present name, (d) succeed to all rights, assets,
liabilities and obligations of Merger Corporation in accordance with and as
more particularly set forth in this Plan of Merger and pursuant to the TBCA.
At the Effective Time, the separate existence of Merger Corporation shall
cease.
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<PAGE> 62
2. ARTICLES OF MERGER; EFFECTIVE TIME. At the closing
of the Merger, the parties hereto shall cause the Merger to be consummated by
the execution and filing of Articles of Merger (the "Articles of Merger") with
the Secretary of State of the States of Texas and California, together with the
appropriate fees and franchise taxes, in accordance with the provisions of the
TBCA and the CGCL. The Merger shall become effective upon the issuance of a
Certificate of Merger by the Secretary of State of the State of Texas (the
"Effective Time").
3. CAPITALIZATION. The number of authorized shares of
the capital stock of the Surviving Corporation shall be 25,000,000 shares,
consisting of 23,000,000 shares of common stock, no par value, and 2,000,000
shares of preferred stock, $10.00 par value per share.
4. ARTICLES OF INCORPORATION. At the Effective Time,
the Articles of Incorporation of Intertrans, as in effect immediately prior to
the Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation amended as follows:
[Insert amendments to Articles of Incorporation]
5. BYLAWS. At the Effective Time, the Bylaws of
Intertrans, as in effect immediately prior to the Effective Time, shall be the
Bylaws of the Surviving Corporation amended as follows:
[Insert amendments to Bylaws]
6. DIRECTORS AND OFFICERS. At the Effective Time (a)
each of the officers of Intertrans immediately prior to the Effective Time
shall be an officer of the Surviving Corporation, in the same capacity or
capacities, to serve until his successor shall have been duly appointed and
qualified and (b) each director of Intertrans shall cease to hold such
position, and the directors of Merger Corporation immediately prior to the
Effective Time shall be the directors of Surviving Corporation, each of whom
shall hold such position until his successor shall have been elected and
qualified to serve, or otherwise as provided in the Articles of Incorporation
or Bylaws of the Surviving Corporation.
7. CAPITAL STOCK OF MERGER CORPORATION. Each share of
common stock of Merger Corporation validly issued and outstanding immediately
prior to the Effective Time shall, at the Effective Time and by virtue of the
Merger thereupon, be converted into and become one share of Intertrans Common
Stock. Each share of such Intertrans Common Stock issued pursuant to this
Section 7 shall be validly issued, fully paid and nonassessable.
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<PAGE> 63
8. CAPITAL STOCK OF INTERTRANS. Each and every share of
Intertrans Common Stock issued and outstanding immediately prior to the
Effective Time (except for stock owned directly or indirectly by Intertrans, a
subsidiary of Intertrans, Fritz or a subsidiary of Fritz and except for shares
held by Shareholders who have validly exercised dissenters' rights under the
TBCA) shall be converted as of the Effective Time into the right to receive
______ of a share of common stock, par value $.01 per share of Fritz (the
"Fritz Common Stock"). At the Effective Time each outstanding option to
purchase Intertrans Common Stock shall pertain to and apply to Fritz Common
Stock which a holder of the number of underlying shares of Intertrans Common
Stock would have been entitled pursuant to the Merger.
9. SHAREHOLDER APPROVAL. This Plan of Merger shall be
submitted to the shareholders of Intertrans for their approval or rejection
pursuant to the TBCA and to the shareholder of Merger Corporation for their
approval or rejection pursuant to the CGCL. In the event that such shareholder
approval is obtained by both Intertrans and Merger Corporation, Intertrans and
Merger Corporation hereby agree that they will cause to be executed and filed
and/or recorded any document or documents prescribed by the laws of the States
of Texas and California, and that they will cause to be performed all necessary
acts required by such states and elsewhere to effectuate the Merger.
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