ASSET PURCHASE AGREEMENT

DATED MAY 1, 2006

AMONG

HGDS ACQUISITION LLC

AND

HUB GROUP DISTRIBUTION SERVICES, LLC

AND

HUB GROUP, INC.

 

 

 

 

TABLE OF CONTENTS

1.	Definitions				1
2.	Basic Transaction				8
	(a)	Purchase and Sale of Assets			8
	(b)	Assumption of Liabilities			8
	(c)	Purchase Price			8
	(d)	Prorations			9
	(e)	Closing			9
	(f)	Deliveries at Closing			9
	(g)	[Intentionally Omitted.]			9
	(h)		Procedures for Acquired Assets not Transferable		9
	(i)	Post-Closing Adjustment to Purchase Price		10
3.	Targets and HUBs Representations and Warranties			11
	(a)	Organization of Target		11
	(b)	Authorization of Transaction		11
	(c)	Noncontravention		11
	(d)	Brokers Fees		12
	(e)	Title to Acquired Assets		12
	(f)	Subsidiaries		12
	(g)	Financial Statements		12
	(h)	Events Subsequent to Most Recent Fiscal Year End		12
	(i)	[Intentionally Omitted.]		13
	(j)	Legal Compliance		13
	(k)	Tax Matters		13
	(l)	Real Property		13
	(m)	Intellectual Property		15
	(n)	Tangible Assets		16
	(o)	Depot Network Provider		16
	(p)	Contracts		16
	(q)	Notes and Accounts Receivable		17
	(r)	Powers of Attorney		17
	(s)	[Intentionally Omitted.]		17
	(t)	Litigation		18
	(u)	Employees		18
	(v)	Employee Benefits		18
	(w)	Guaranties		18
	(x)	Environmental, Health, and Safety Matters		18
	(y)	Business Continuity		19
4.	Buyers Representations and Warranties			19
	(a)	Organization of Buyer		19
	(b)	Authorization of Transaction		19

 

 

i

 

 

 

	(c)	Noncontravention		20
	(d)	Brokers Fees		20
5.	Employee and Employee Benefit Matters			20
	(a)	Employment of Target Employees by Buyer
	(b)	Salaries and Benefits		21
	(c)	General Employee Provisions		21
	(d)	Rollovers		21
6.	Post-Closing Covenants			22
	(a)	General		22
	(b)	Litigation Support		22
	(c)	Transition		22
	(d)	Confidentiality		22
	(e)	Covenant Not to Compete		23
	(f)	Use of Name		23
	(g)	Collection of Accounts Receivable		23
	(h)	Allocation		24
7.	Conditions to Obligation to Close			24
	(a)	Conditions to Buyers Obligation		24
	(b)	Conditions to Targets Obligation		26
8.	Remedies for Breaches of This Agreement			26
	(a)	Survival of Representations and Warranties		26
	(b)	Indemnification Provisions for Buyers Benefit		27
	(c)	Indemnification Provisions for Targets Benefit		27
	(d)	Matters Involving Third Parties		28
	(e)	Determination of Adverse Consequences		29
	(f)	Exclusive Remedy		29
9.	[Intentionally Omitted.]			29
10.	Miscellaneous			29
	(a)	Press Releases and Public Announcements		29
	(b)	No Third-Party Beneficiaries		29
	(c)	Entire Agreement		29
	(d)	Succession and Assignment		29
	(e)	Counterparts		30
	(f)	Headings		30
	(g)	Notices		30
	(h)	Governing Law		30
	(i)	Amendments and Waivers		30
	(j)	Severability		31
	(k)	Expenses		31
	(l)	Construction		31

 

 

ii

 

 

 

 

	(m)	Incorporation of Exhibit and Schedules	31
	(n)	Specific Performance	31
	(o)	Submission to Jurisdiction	32
	(p)	Tax Matters	32
	(q)	[Intentionally Omitted.]	32
	(r)	Bulk Transfer Laws	32
	(s)	Limitation on Warranties	33

 

 

iii

 

 

 

 

ASSET PURCHASE AGREEMENT  

This Asset Purchase Agreement (this Agreement) is entered into as of May 1, 2006, by and among HGDS ACQUISITION LLC, a Delaware limited liability company (Buyer); Hub Group Distribution Services, LLC, an Illinois limited liability company (Target); and Hub Group, Inc., a Delaware corporation (HUB). Buyer, Target, and HUB are referred to collectively herein as the Parties.

Whereas, Target is an indirect wholly-owned subsidiary of HUB.

Whereas, William J. McKenna has served as the President of Target since November 2004 and is a principal investor of Buyer and Kevin Kotche has served as the Chief Financial Officer of Target since April 2004 and will continue in such capacity with Buyer after the consummation of the transactions contemplated herein.

Whereas, Buyer desires to purchase all of Targets right, title and interest in and to certain of Targets assets in return for cash and the Buyers assumption of certain liabilities of Target, upon the terms and subject to the conditions set forth herein.

Now, therefore, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows.

1.

Definitions.

Acquired Assets means all of Targets right, title, and interest in and to all of its assets, including all of its (a) Leased Real Property; (b) tangible personal property (such as machinery, equipment, inventories of raw materials and supplies, manufactured and purchased parts, goods in process and finished goods, furniture, automobiles, trucks, tractors, trailers, tools, jigs, and dies) located at the premises comprising the Leased Real Property and the laptop computers used by the Hired Employees wherever located; (c) Intellectual Property set forth in 3(m) of the Disclosure Schedule (including the printed guide of the source and object code for BUSTER Systems, the trademark and trade name HGDS, and the Internet website(s) and Internet domain names, registrations, and addresses currently used by Target), goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions; (d) leases, subleases, and rights thereunder; (e) agreements, contracts, indentures, mortgages, instruments, Liens, guaranties, other similar arrangements, and rights thereunder; (f) accounts, notes, and other receivables; (g) securities; (h) claims, deposits, prepayments, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment; (i) franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies; (j) books, records, ledgers, files, documents, correspondence, lists, plats, architectural plans, drawings, and specifications, creative materials, advertising and promotional materials, studies, reports, and other printed or written materials; and (k) petty cash not to exceed $500; provided, however, that the Acquired Assets shall not include any of Targets right, title and interest in and to the Excluded Assets.

 

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