Fill and Sign the Truckers New Independent Contractor Agreement Was Form

Appendix B ASSET PURCHASE AGREEMENT Asset Purchase Agreement (“Agreement”) dated as of June 17, 1994, by and among SWIFT TRANSPORTATION CO., INC., a Nevada corporation (“Swift”), SWIFT TRANSPORTATION CO., INC., an Arizona corporation and a wholly-owned subsidiary of Swift (“Swift-Az” and, together with Swift, “Purchaser”), MARK VII, INC., a Missouri corporation formerly known as MNX INCORPORATED (“Mark Vii”), MNX CARRIERS, INC., a Delaware corporation and a wholly-owned subsidiary of MARK VII (“Carriers”), and MISSOURI-NEBRASKA EXPRESS, INC., an Iowa corporation and a wholly-owned subsidiary of Carriers (“Mo-Neb”). Mark VII, Carriers and Mo-Neb are sometimes collectively referred to herein as “Seller”. WITNESSETH: WHEREAS, Seller is engaged in the interstate trucking business throughout the United States; and WHEREAS, Seller desires to sell and Purchaser desires to purchase certain assets of Seller, on the terms and conditions and for the consideration herein described. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants, representations and warranties herein contained, and upon the terms and condit ions hereinafter set forth, the parties hereto agree as follows: ARTICLE I DEFINITIONS For the purposes of this Agreement, unless otherwise provided, the following terms shall have the meanings ascribed to them below: Section 1.1 “Assumed Liabilities” means those operating leases (which the parties acknowledge cannot be prepaid), capitalized leases and other obligat ions set forth on Schedule 1.1. (together with the estimated balances thereon as of June 30, 1994). Section 1.2 “Equipment” means the tractors, trailers and satellite communications units (whether owned or leased) set forth on Schedule 1.1. Section 1.3 “Escrow Agreement” means the agreement governing the placement and disposition of the Deposit (as defined in Section 2.2(c) hereof) by the Escrow Agent in the form of Exhibit A hereto. Section 1.4 “Excluded Assets” means any and all assets of Seller other than the Transferred Assets, including without limitation any and all cash on hand. Section 1.5 “Facility Lease” means the lease to be entered into by and between Mo-Neb and Purchaser, substantially in the form of Exhibit B hereto and consistent with Section 3.1 hereof, relating to Mo-Neb’s terminal facility located in St. Joseph, Missouri. Section 1.6 “GAAP” means generally accepted accounting principles. When referring to Historical Financial Statements (as defined in Section 5.4 here of), GAAP is applied in a manner consistent with Seller’s past practices as reflected in its audited and unaudited financial statements. Section 1.7 “ICC” means the United States Interstate Commerce Commission, or any successor agency. Section 1.8 “Inventory” means those parts, tires, fuel and supplies set forth on Schedule 1.8. Section 1.9 “Judgment” means any final and non-appealable judgment, order, writ, injunction, decree or award of any federal, state or provincial court or governme ntal agency. Section 1.10 “Law” means any law, ordinance, or governmental order, rule or regulation (including, without limitation, all environmental, energy, safety, health, zoning, antidiscrimination, antitrust and wage and hour laws, ordinances, orders, rules or regulations). Section 1.11 “Licenses” means the motor vehicle licenses and registrations affixed to the tractors and trailers that comprise the Equipment. Section 1.12 “Lien” means any mortgage, lien, pledge, security interest, conditional sale agreement, charge, claim, right, condition, restriction or ocher enc umbrance or defect of title specifically relating to a Transferred Asset. Section 1.13 “Prepaid Assets” means the prepaid tractor leases and other prepaid assets set forth on Schedule 1.13. Section 1.14 “Records” means copies of records and other documents in the files of Seller as of the date hereof relating to the Transferred Assets, drivers, and tariffs. Section 1.15 “Transferred Assets” means the Equipment, Inventory, Licenses, Prepaid Assets and Records. ARTICLE II TERMS Section 2.1 Purchase and Sale. Mo-Neb agrees to sell, assign and transfer, or cause to be transferred, to Swift-Az, and Swift-Az agrees to purchase and acquire from Mo- Neb the Transferred Assets and to compensate Seller on the basis of drivers in place wit h Seller on the date hereof in consideration of the Purchase Price and the assumption by Purchaser of t he Assumed Liabilities. Section 2.2 Purchase Price; Assumed Liabilities. (a) Purchase Price. The cash portion of the Purchase Price, as calculated pursuant to this Section 2.2, shall be payable at Closing by wire tra nsfer. The cash portion of the Purchase Price shall equal: (i) $38,781,665; plus (ii) the value of the Inventory, Licenses and Prepaid Assets as set forth on the June 30, 1994 balance sheet of Mo-Neb to be prepared by Mo- Neb in accordance with GAAP, consistently applied (the “Balance Sheet”); minus (iii) the amount of the Assumed Liabilities (A) as of June 30, 1994 as confirmed by the lenders or lessors with respect thereto reduced by $1,271,596, or (B) if in the absence of such confirmation prior to Closing, as set forth on the Balance Sheet) for the purposes of the Closing, but subject to post- Closing adjustment and indemnification for any difference between the Balance Sheet amount and the amount confirmed by the respective lenders and lessors upon receiving confirmation; minus (iv) $380,692 representing the obligation for drivers’ vacation pay assumed by Purchaser under Section 6.3(b). (b) Assumed Liabilities. Purchaser shall discharge and perform when due all obligations, responsibilities, covenants and liabilities, including a ll lease and other payments accruing in accordance with Schedule 1.1, which arise under the Assumed Liabilities and are due from July 1, 1994 until the Closing or earlier termi nation of this Agreement in accordance with its terms (subject to Seller remaining l iable for any accrued interest or operating lease expense with respect to periods prior to July 1, 1994). Purchaser shall assume, and Seller shall be fully and unconditionally released from, the Assumed Liabilities effective upon the Closing; provided that Purchaser shall indemnify seller after Closing from any of the Assumed Liabilities as to which releases are not obtainable from creditors of Seller. (c) Deposit. Purchaser shall deposit $3,000,000 in cash (the “Deposit”) with an escrow agent pursuant to the terms of the Escrow Agreement, such Deposit to be credited against the amount payable in Section 2.2(a)(i) above. The Deposit shall be refunded to Purchaser only in the event this Agreement is terminated pursuant to Section 9.1. Interest earned on the Deposit shall be paid to Purchaser on the Closing Date or any refund of the Deposit to Purchaser in accordance with the preceding sentence.Section 2.3 Excluded Assets . Seller shall retain, and shall not be deemed by this Agreement to have sold, conveyed or transferred to Purchaser, any of the Excluded Assets. Section 2.4 Obligations Not Assumed . Purchaser does not assume, accept or agree to pay any indebtedness, obligations or liabilities of Seller, except those which are expressly required to be assumed, accepted or paid by Purchaser pursuant to this Agreement. Section 2.5 Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at 9:00 a.m. central time on August 31, 1994 at the offices of Shook, Hardy & Bacon P.C., 1200 Main Street, Kansas City, Missouri 64105, or upon the satisfaction or waiver of all conditions to Closing set forth in Article VII or such other time, date and place as mutually agreed between the parties (the “Closing Date”). ARTICLE III FACILITY LEASE Section 3.1 Terminal Facility in St. Joseph, Missouri. Purchaser agrees to sublease from Seller the terminal facility located in St. Joseph, Missouri (the “Facility”) for one year after Closing at a rental rate of $2,000 per month, in accordance with the terms and conditions of the Facility Lease. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser represents and warrants to Seller, as of the date hereof and as of the commencement of the Management Period, as follows: Section 4.1 Corporate Statue. Swift-Az is a corporation duly organized, validly existing and in good standing under the laws of the State of Arizona, with requisi te corporate power and authority to carry on its business. Swift-Az is wholly- owned by Swift. Swift is a publicly-traded corporation, duly organized, validly existing and in good standing under the laws of the State of Nevada. Section 4.2 Authority. Execution and delivery of this Agreement by Swift and Swift-Az and the consummation and performance of the transactions contemplated he reby have been duly and validly authorized by all necessary corporate and other proceedings. Swi ft and Swift-Az have full right, power and authority to execute and deliver this Agreement, and, upon compliance with the Interstate Commerce Act and the equivalent state l aws and the Hart- Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), to consummate and perform the transactions contemplated hereby. This Agreement has been duly execute d and delivered by Swift and Swift-Az and constitutes a legal, valid and binding obligation e nforceable against each of Swift and Swift-Az in accordance with its terms. Section 4.3 Validity of Contemplated Transaction. Except as set forth on Schedule 4.3, the execution and delivery of this Agreement by Swift and Swift-Az does not violate, conflict with or result in the material breach of any term, condition or provision of (i) any existing Law to which Swift or Swift-Az are subject, (ii) any Judgment which is a pplicable, (iii) their respective Articles of Incorporation or other charter documents or By-Laws or any securities issued, or (iv) any material contract to which Purchaser is a party or by which Purchaser is otherwise bound. Other than as may be required by the Interstate Commerce Ac t or the equivalent state laws or the HSR Act, no authorization, approval or consent of, and no registration, filing or notice to, any governmental agency or authority or any other party to any contract is required in connection with the execution, delivery and performance of this Agreement by Purchaser. ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER Seller represents and warrants to Purchaser, as of the date hereof and as of the commencement of the Management Period, as follows: Section 5.1 Corporate Status. Mo-Neb is a corporation duly organized, validly existing and in good standing under the laws of the State of Iowa, with requisite corporate power and authority to carry on its business as it has been and is now being c onducted and to own, lease and operate its properties used in connection therewith. Mo-Neb is wholly- owned by Carriers, which is wholly-owned by Mark VII. Mo-Neb has no subsidiaries and no entities affiliated through common ownership or otherwise that conduct any business related to that conducted by Mo-Neb, except as set forth on Schedule 5.1. Section 5.2 Authority. Execution and delivery of this Agreement by Mo- Neb, Carriers and Mark VII and the consummation and performance of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate proceedings, subject to the approval of the shareholders of Mark VII. Mo-Neb, Carriers and Mark VII have full right, power and authority to execute and deliver this Agreement, and, upon compliance with the Interstate Commerce Act, the equivalent state laws and the HSR Act, and the receipt of the approval of shareholders of Mark VII, to consummate and perform the transactions contemplated hereby. This Agreement has been duly executed and delivere d by Mo- Neb, Carriers and Mark VII and constitutes the legal, valid and binding obligation of ea ch of them, enforceable against each, in accordance with its terms. Section 5.3 Validity of Contemplated Transactions. Except as set forth on Schedule 5.3, the execution and delivery of this Agreement by Mo-Neb, Carriers and Mark VII does not violate, conflict with or result in the material breach of any term, c ondition or provision of (i) any existing Law to which Mo-Neb, Carriers or Mark VII are subject, (ii) any Judgment to which Mo-Neb or the Transferred Assets is subject, (iii) the Articles of Incorporation or other charter documents or By-Laws of Mo-Neb, Carriers or Mark VII, (iv) any material contract to which Mo-Neb, Carriers or Mark VII are parties or by which any is otherwise bound. Other than as may be required by the Interstate Commerce Act or the equivalent state laws or the HSR Act and other than the approval of the shareholde rs of Mark VII, no authorization, approval or consent of, and no registration, filing, or notice to, any governmental agency or authority or other party to any contract is required in connecti on with the execution, delivery and performance of this Agreement by Mo-Neb, Carriers or Mark VII. Section 5.4 Financial Statements. Mark VII has delivered to Purchaser the audited financial statements of Mark VII as of and for the fiscal year ended Ja nuary 1, 1994, and will deliver by June 20, 1994 the unaudited financial statements of Mo-Neb as of and for the period ended April 30, 1994 (collectively, the “Historical Financial Statements”). The Historical Financial Statements, including all balance sheets, income statements (and st atements of cash flows and retained earnings, to the extent applicable), and all notes thereto, prese nt fairly the assets and liabilities and results of operations of Mark VII on a consolidated basis, as of their date or for the period reflected therein. All Historical Financial Statements have been prepared in accordance with GAAP, consistently applied. Section 5.5 Inventory. Except as set forth on Schedule 5.5, the Inventory was acquired and has been maintained in accordance with the regular business practi ce of Seller and consists of items of a quality usable in the ordinary course of Seller’s business. Section 5.6 Absence of Changes or Events. Except as contemplated by this Agreement or as set forth on Schedule 5.6, since April 30, 1994, Seller has not: (a) sold, assigned or transferred or agreed to sell, assign, or transfer any of the Transferred Assets or any interest therein; (b) created, incurred, assumed or guaranteed any indebtedness for money borrowed or any other indebtedness or obligation of any nature (absolute or contingent) which is secured by the Transferred Assets, or mortgaged, pledged or subjected to any lien, the Transferred Assets, or agreed to do any of the foregoing; or (c) suffered any damage, destruction or loss, whether or not covered by insurance, or purchased fuel for trucks in transit at levels below Mo-Neb’s practice preceding April 30, 1994 which adversely affects the Transferred Assets or fuel in trucks. Section 5.7 Condition; Title of Transferred Assets. (a) Except as set forth on Schedule 5.7(a), the Transferred Assets and the Temporary Tractors (as defined in Section 6.2(d)) are in good repair and condition and adequate for the ordinary course of operation of Mo-Neb’s business as presently conducted and no person other than Mo-Neb owns any Transferred Assets. (b) Subject to the Assumed Liabilities, Mo-Neb has good title to all of the Transferred Assets owned by it, free and clear of all Liens, except (i) Liens for c urrent taxes not yet due and payable, and (ii) those Liens disclosed on Schedule 5.7(b). Section 5.8 Tax Matters. Except as set forth on Schedule 5.8, Seller has filed, within the time and in the manner prescribed by law, all material t ax returns and reports required to be filed by it with respect to the Business (as defined herein) or the T ransferred Assets and has paid all taxes shown to be due thereon. Section 5.9 Litigation. Except as set forth on Schedule 5.9, there is no action, suit, claim or proceeding pending against or, to Seller’s knowledge, threatened a gainst Seller that, if adversely determined, would adversely affect the Transferred Assets or the Closing. Section 5.10 Operating Rights. Mo-Neb has proper Interstate Commerce commission and intrastate authority to operate its business as its business is present ly being conducted and operated, and copies of such intrastate authorities are attached heret o as Exhibit C. There is no action pending with any regulatory body concerning Mo-Neb’s operating authorities. Section 5.11 Drivers; Employees. Seller has in place on the date of this Agreement 875 drivers. Except as contemplated by this Agreement or as set forth on Schedul e 5.11, there are no collective bargaining agreements, plans, or polices which would give rise to any severance, termination, change-in-control, or other similar payment to Seller’s e mployees as a result of the consummation of this Agreement. Seller has taken no action in re spect of its employees that would require notice (or if any action requiring notice has occurred, notice has been given) or create liability under the Worker Adjustment and Retraining Notificati on Act, or any state counterpart. Except as set forth on Schedule 5.11, Seller has not laid off or fi red any employees. Section 5.12 Compliance With Laws. Except as set forth on Schedule 5.12: (a) Mo-Neb has owned, leased or used all of the Transferred Assets in compliance in all material respects with all applicable laws; (b) No Judgment creating a material Lien on any of the Transferred Assets is unsatisfied against Seller and Seller is not subject to any stipulat ion, order, consent or decree which has or may create any such Lien which materially affects the Transferred Assets; (c) Seller possesses all material permits, licenses, franchises, and other approvals of governmental authorities (“Permits’) required to operate the Transferred Assets and such Permits are in full force and effect and no proceeding is pending or threatened to revoke or limit any Permit, and Seller is operating in materi al compliance with all Permits; (d) The Facility has been operated by Mo-Neb in material compliance with all Laws; and (e) Seller has not caused any hazardous or toxic substances, as defined under any environmental Law, to be spilled or disposed of on the Facility property. All fuel tanks on such property do not leak and are in compliance with all Laws. Seller has not received notice from any regulatory authority of any events, practices, or incidents which pertain to a violation of any Law.Section 5.13 Leases. All tractor and trailer leases which are Assumed Liabilities are in full force and effect, enforceable according to their te rms (assuming each such lease is enforceable against the other party to such lease) and Seller is not in default under any of the material terms or provisions thereof. Other than the Assumed Liabilities there are no Agreements that would restrict the use of the tractors and trailers by Purchaser. Section 5.14 Insurance. Schedule 5.14 lists all insurance policies covering the Transferred Assets and Mo-Neb’s employees. All such policies are in full force and effect and all premiums have been paid when due. Section 5.15 Prepaid Leases. The prepaid licenses and leases that comprise a part of the Prepaid Assets consist of expenses that were incurred in the ordinary course of Seller’s business consistent with past practice, and are valued at cost except to t he extent reduced through monthly amortization. ARTICLE VI COVENANTS Section 6.1 Conduct of Mo-Neb Pending the Closing. Seller agrees that from the date hereof and prior to July 1, 1994 or earlier termination of this Agreement, Mo-Neb will not take any action which would render untrue any representation contained in Section 5.6. Section 6.2 Use of Transferred Assets by Purchaser Pending Closing. (a) From July 1, 1994 until the earliest of the Closing or the earlier termination of this Agreement in accordance with its terms (the “Management Period”), Seller shall delegate to the Purchaser the right to “Manage” the Transferred Asse ts and the Temporary Tractors (as defined herein) and the business related thereto (the “Business”); provided, however, that, with respect to Equipment or drivers described in the third sentence of Section 6.2(d), the Management Period shall commence upon the call for new instructions described in such sentence. In accordance with Purchaser’s right to Manage the Transferred Assets and the Temporary Tractors and the Business, all intercompany agreements between Mark VII and Mo-Neb shall be terminated upon the commencement of the Management Period; provided, however, that any brokerage commissions owed by Mo-Neb to Mark VII for freight hauled after the commencement of the Management Period shall be paid by Purchaser to Mark VII. Any subsequent agreements entered into by Purchaser on behalf of Mo-Neb necessary to operate the Transferred Assets and the Business shall not restrict or obligate, in any way, Mo-Neb subsequent to the Management Period. The term “Manage” shall mean the right and responsibility of Purchaser to: (i) hold, operate, and manage in all respects the Transferred Assets; (ii) repair and maintain the Equipment (and Inventory to the extent not used) in the same condition in which they were received, normal wear and tear excepted; (iii) receive and retain all revenues, income, earnings and profits generated by the operation of the Transferred Assets or by the operation of other rolling stock by the drivers; (iv) receive all benefits and discharge all obligations (including principal, interest and other amounts) due on or with respect to the Assumed Liabilities; (v) manage, oversee, employ and terminate all employees currently or during the Management Period employed by Mo-Neb and make such changes in duty assignments as Purchaser shall reasonably deem desirable; (vi) pay to all drivers and other employees of Mo-Neb utilized by Purchaser all amounts due and arising from services during the Management Period, whether in the form of wages, per diem, advances, or otherwise, and withhold taxes and make proper deposits; (vii) pay all trade payables and other liabilities arising during the Management Period; (viii) bear all risk of loss with respect to the Transferred Assets, with any insurance proceeds received by Purchaser as a result of loss or damage to any of the Transferred Assets being promptly delivered to Seller to hold as a deposit pending Closing with Seller refunding any such insurance proceeds to Purchaser upon Closing or retaining such deposit in the event the Closing does not occur;(ix) maintain, at Purchaser’s expense, either (A) Seller’s insurance coverage on the Transferred Assets in the amounts presently carried by Seller, and Seller and Purchaser shall jointly arrange for Purchaser to be named as an additional insured on all such insurance policies, or (B) obtain comparable coverages under Purchaser’s insurance policies and arrange for Seller to be named as an additional insured and in either case all such policies shall contain a waiver of subrogation of any Claims that may be brought against Seller; and(x) take all other action necessary in Purchaser’s reasonable discretion to manage and operate the Transferred Assets during the Management Period. (b) (i) Purchaser agrees that, while managing the Transferred Assets during the Management Period, it shall return such of the leased Freightliner tractors on which the leases expire, in accordance with the leases covering such tractors. Purchaser shall pay costs of transporting the tractors to the turn-in locations, and Seller shall pay in accordance with Section 6.7(b) all costs of repair, tire and parts replacement, and, repairing, and returning such tractors to the lessor, and other liabilities owed to the lessor relating to such tractors, unle ss such costs or liabilities arose (1) as a result of Purchaser’s negligence or misconduct during the Management Period or (2) prior to commencement of the Management Period and were settled between the parties hereto pursuant to procedures established under this Agreement. (ii) Purchaser shall take delivery and purchase (or lease) from Freightliner, at Purchaser’s expense and for its own account, the 100 model year 1995 Freightliner tractors scheduled for delivery to Seller in August. Such tractors shall remain Purchaser’s regardless of the closing or termination of the transactions contemplated by this Agreement.(iii) Except as provided in Section 6.2(b)(i), Purchaser shall not sell, assign, or otherwise dispose of, or permit the imposition of any Lien on the Equipment during the Management Period. Purchaser shall not acquire any capital assets on behalf of Seller during the Management Period. Purchaser may acquire parts, tires, fuel, and other Inventory and non-capital assets of a character required for operation of the Business in the ordinary course, consistent with Seller’s prior practices. (c) In consideration of the rights granted in Section 6.2(a) and the earnings and profits, if any, generated by the Transferred Assets and drivers, Purchaser shall pay to Seller $100 per month on the last day of each month during the Management Period or at Purchaser’s election, at the Closing. In addition, if the transactions contemplated by this Agreement are not consummated, Purchaser shall reimburse Seller for any after-tax operating loss during the Management Period. Purchaser shall be entitled to withdraw and retain cash or other liquid assets equivalent to all profits generated by the Transferred Assets and Business during the Management Period as its fee, regardless of whether the transactions contemplated by this Agreement are consummated, and shall leave in Mo-Neb, if the Closing does not occur, cash or other current assets equivalent to any accounts payable accrued or due and owing upon termination of the Management Period. (d) Seller has represented that the Equipment to be turned over to Purchaser at the commencement of the Management Period includes 549 tractors and 1,827 trailers and that Mo-Neb has approximately 150 tractors that are not part of the Transferred Assets (the “Temporary Tractors”). For purposes of this Section 6.2, the term “Transferred Assets” shall apply mutatis, mutandis to “Temporary Tractors.” At the commencement of the Management Period, Seller shall identify the locations of al l Equipment and certify whether such Equipment is available for dispatch. Any Equipment that is being used by Seller for the delivery of goods on July 1, l994 shall remain in the use, and under the control, of Seller until the completion of the delivery of such goods and the call for new instructions by such driver. For each tractor or trailer that i s not available, identified by location and certified as available for dispatch, whe ther out-of- service, under Seller’s load, unlocated or otherwise, Seller shall pay to Purchaser a fee for the use of such tractors of $66 per day per tractor-trailer and $10 per day per separate trailer for the number of days that any tractor-trailer or separate trailer is una vailable for use by Purchaser. (e) Seller shall have no rights to make commitments or take any action on behalf of Mo-Neb that would affect the operation of the Transferred Assets or Business during the Management Period. The rights granted Purchaser during the Management Period are irrevocable, and the parties acknowledge that Purchaser would not have entered into this Agreement absent such irrevocable rights. (f) Except as otherwise provided in this Agreement, any liability that arises from facts or events that span all or part of the Management Period and a period when Seller operated Mo-Neb shall be prorated based upon the relative responsibility of Purchaser and Seller for the liability. As an example, in case of a fuel tax audit that results in liability for a period including the Management Period, Purchaser shall be liable for an amount equal to the ratio of the amount of fuel used in the Management Period bears to the total amount of fuel used in the audit period, and Seller shall be li able for the balance. Purchaser shall indemnify, defend and hold harmless Seller against liabiliti es for which Purchaser is responsible under this paragraph and Seller shall indemnify, defend and hold harmless Purchaser against liabilities for which Seller is responsible under this paragraph. (g) In the event that this Agreement is terminated, the Management Period shall terminate and Purchaser shall return, as of the date of termination of thi s Agreement (the “Termination Date”), the operation of the Transferred Assets to the control of Seller and Purchaser shall be deemed to have made to Seller the representations and warranties set forth in Article V hereof, other than Sections 5.1 through 5.4, as of the Termination Date for the period from the commencement of the Management Period through the Termination Date; provided, that in the representation contained in Section 5.6 “April 30, 1994” shall be replaced with “July 1, 1994” and Purchaser shall not make the representation concerning the number of drivers contained in the first sentence of Section 5.11. Section 6.3 Benefits. (a) Drivers and employees of Mo-Neb as of commencement of the Management Period shall accrue vacation from the date of commencement of the Management Period without regard to any minimum employment period requirements. (b) (i) Purchaser shall assume all accrued vacation and shall be responsible for payment of vacation pay to each driver after commencement of the Management Period and, if the Closing occurs, after Closing. (ii) On July 15, 1994, Seller shall pay accrued vacation pay as of June 30, 1994 to all non-driver employees of Mo-Neb. (iii) Seller shall pay one week of vacation pay for each year of service to each non-driver employee of Mo-Neb who remains in the employ of Mo-Neb for the full term of the transition period assigned to such employee by Purchaser (which transition period shall be assigned within 60 days after commencement of the Management Period and which shall in no event extend beyond December 31, 1994) and who is not ultimately hired by Purchaser. Seller shall not make such payment to any non-driver employee who does not remain employed for the relevant transition period unless such transition period is terminated at the direction of Purchaser prior to its full term. (c) Purchaser shall pay, 60 days after the Closing Date (the “Payment Date”), a bonus of $250 to each driver in place of Seller as of the date hereof who i s employed by Purchaser on the Payment Date. Section 6.4 Approval of Shareholders and Directors. Mo-Neb, Carriers and Mark Vii shall use best efforts to obtain all necessary approvals of their respective share holders and directors, as required by the laws of each of their states of incorporation, Articl es of Incorporation and By-Laws, for the purpose of voting on the adoption and approval of this Agreement and all related agreements. The Board of Directors of Mark VII shall recommend that shareholders vote for the transaction contemplated hereby, subject to their fiduciary dut ies in the event of a bona fide third party offer that the Board determines is superior to the tra nsaction described herein. In the event that (i) the Board of Directors of Mark VII changes it recommendation to a recommendation that shareholders vote against the transaction contemplated hereby, (ii) the transaction contemplated hereby is not approved by shareholders and (iii) this Agreement is terminated, Seller will pay Purchaser $1,000,000 as a reimburse ment for expenses incurred by Purchaser. The members of the Board of Directors of Mark VII have entered into the Voting Agreement with Swift dated of even date herewith. Section 6.5 Publicity and Filings. Swift and Mark VII may issue such press releases or file such documents with the Securities and Exchange Commission as sha ll be recommended by their respective counsel and shall endeavor to provide the other with an opportunity to review such press releases or filings prior to issuance or filing thereof. Section 6.6 HSR Act. As soon as practicable after the execution of this Agreement, the parties, individually or jointly, shall cause to be properly filed with the Federal Trade Commission and the Department of Justice, the notification required by the HSR Ac t and regulations thereunder. The parties shall cooperate with each other in the timel y preparation and filing of such forms, and shall request early termination of the waiting period. Section 6.7 Equipment. (a) None of the Equipment (except scheduled turn-ins on leased Equipment) will be disposed of by Seller, prior to the Closing. (b) Purchaser and Seller shall conduct a review of the Equipment on or about June 30, 1994 to determine whether the Equipment satisfies as of such date (i) the good repair and condition warranty contained in Section 5.7 (a) or (ii) the te rms of the leases to which the Equipment is subject relating to road-worthiness, tire condition and body damage upon turn-in of such Equipment. Any repairs under $2,500 required to have the Equipment satisfy such warranty or lease terms shall be made by Purchaser at the cost of parts plus the flat labor rate of $34 per hour for the number of hours designated for such repair in Purchaser’s repair and maintenance manual, a copy of which has previously been furnished to Seller. At Closing, Seller shall pay Purchaser the amount of such repair expense per tractor in excess of the deductible amount provided for in the relevant lease. For Equipment requiring repairs greater than $2,500, Seller shall arrange for such repairs at its own expense. (c) Pursuant to the Equipment review contemplated by Section 6.7(b), Purchaser and Seller shall determine the average mileage per tractor for trac tors acquired during the same calendar month, as of June 30, 1994. In the event that the sum of (iii) such mileage per tractor plus (iv) the product of (A) 11,000 miles times (B) the number of months remaining on the lease for such tractor, exceeds the total mileage all owed under such lease for the full term thereof, Seller shall pay to Purchaser at Closi ng the product of (x) the number of such excess miles times (y) the per mile excess mileage penalty, if any, under the applicable lease. Section 6.8 Equipment Registration. Seller will not renew the licenses or registrations of, or purchase new license plates for, any of its tractors or trailers which are Equipment between the date hereof and the Closing. Section 6.9 Operating Authorities; Temporary Lease. As soon as practicable after the date hereof, Purchaser may petition the ICC to approve or e xempt temporary common management and control (and, in its discretion any other governmental agency or authority having jurisdiction, to approve or exempt the permanent transfer of intrastate opera ting authorities of Mo-Neb to Purchaser and to approve or exempt temporary transfer of all intrastate operating authorities pending final determination of the permanent transfer applicati on and of all intrastate operating authorities pending Closing). Seller shall use its best efforts t o assist Purchaser in obtaining any such exemptions or approvals. Section 6.10 Noncompetition. During the Management Period and for a period of five years from Closing, Mark VII shall not haul “Traffic of Mo-Neb” in trucks operated under Mark VII operating authority (not including brokerage authority). “Traffic of Mo-Neb” shall mean the intercity trucking business for 23 of the 25 largest accounts of Mo-Neb for the 12-month period prior to Closing (as listed on Schedule 6.10) that was hauled by Mo-Neb company-owned trucks operated under Mo-Neb’s operating authority on or during the 12-month period prior to the commencement of the Management Period. Seller shall not, for a peri od of three years from the Closing Date, employ or solicit the employment of any drivers who were drivers of Mo-Neb on the date hereof (other than Mo-Neb’s employment of drivers after the date hereof and through the Management Period). Seller shall not directly or indirectly, except through Mark VII activities not prohibited hereby, operate a truckload transportation fleet (i) of over 100 tractors in intercity freight for a period of one year from the Closing Date or (ii ) of over 200 tractors in intercity freight during the one-year period ending on the second anniversary of the Closing Date. The parties deem the restrictions contained in this Section 6.10 are reasonable and necessary to transfer to Purchaser the benefits of this Agreement. However, if a court of competent jurisdiction determines that such restrictions are unreasonable, the restric tions shall be reduced by the court to a reasonable level and enforced in accordance therewith. In the event of a breach of this Section 6.10, Purchaser shall be entitled to injunctive relief as we ll as any other available legal or equitable remedies. Section 6.11 Drivers. (a) Drivers of Mo-Neb who agree at Closing to become drivers of Purchaser will have 90 days after Closing to elect to be compensated by Purchaser pursuant to the parameters of Purchaser’s pay scale or pursuant to the parameters of Mo- Neb’s pay scale (including guaranty), and to be compensated under Mo-Neb’s pay scale pending such decision. (b) Drivers of Mo-Neb who agree at Closing to become drivers of Purchaser shall have the right to continue their current team arrangements for one year following the Closing Date. (c) Purchaser represents that it is the Purchaser’s policy to permit each of its drivers to retain an assigned truck. Section 6.12 Sales, Use and Transfer Taxes. Purchaser shall be responsible for and pay sales, use and transfer taxes, if any, payable to any governmental entity in connection with the transactions contemplated by this Agreement or the other agreements or instrum ents referred to in this Agreement, except as specifically otherwise provided herein. Section 6.13 Bulk Sales Laws. Seller agrees to comply with any and all bulk sales laws and issue any stop orders in connection therewith, that may be applic able to the transactions contemplated by this Agreement or, in the alternative, to indemnify Purcha ser against any claims resulting from Seller’s failure to comply with any such bulk sales laws. Section 6.14 Use of Name. As soon as practicable after the Closing Date, Purchaser will delete the names “MNX Incorporated,” “Missouri-Nebraska Express, Inc.” and “Mo-Neb”, or any portions or variations thereof or logos, trademarks or tradestyles associated therewith, from the Transferred Assets and will refrain from using any of the foregoing in the conduct of Purchaser’s business. Section 6.15 Release of Seller. Purchaser shall use its best efforts to obtain the unconditional release of Seller effective as of the Closing from any and all Assumed Liabilities. In the event that any such release is not obtainable from a credit or of Seller, and notwithstanding Purchaser’s obligation to indemnify Seller with respect thereto, Seller shall have the right to require Purchaser to prepay such Assumed Liability, provided that in such case Seller shall bear any prepayment penalty required by such creditor to be paid in connection therewith. Section 6.16 St. Joseph Terminal Facility. As soon as practicable after the date hereof, Seller shall cause a Phase I environmental audit to be conducted of the Facility. If such audit recommends that a Phase II environmental audit be conducted of the Facility and Seller and Purchaser determine that such action is appropriate, such action shall be taken by or at the direction of Seller. Seller shall be responsible for and shall indemnify and hold Purchaser harmless against any Claims (as defined in Secti on 8.1) arising out of or otherwise in respect of any findings contained in the audit conducted by Seller. As soon as practicable after Purchaser vacates the Facility in a ccordance with the terms of the Facility Lease or otherwise, Purchaser shall cause a Phase I environmental audi t to be conducted of the Facility (or an update of the Phase I audit conducted by Seller pursuant to this Section 6.16, if determined to be appropriate by Seller and Purchaser). If such audit recommends that a Phase II environmental audit be conducted of the Facility and Seller and Purc haser determine that such action is appropriate, such action shall be taken by or at the direction of Purchaser. Purchaser shall be responsible for and shall indemnify and hold Seller harmless against any Claims (as defined in Section 8.1) arising out of or otherwise in respect of any findings contained in the audit conducted by Purchaser that are different from those containe d in the audit conducted by Seller. Section 6.17 Federal Highway Use Tax. Purchaser shall pay the federal highway use tax relating to Mo-Neb for the fiscal year beginning July 1, 1994; provided, however, that in the event of a Termination Date, Seller shall pay Purchaser the pro rated amount of such tax for the portion of the fiscal year remaining after the Termination Date. Section 6.18 Parts Inventory. Replacement parts and tires that are included in the Inventory but that are not used in the normal operation of the Business (for example, International Harvestor parts) shall be identified by Purchaser and repurchased by Seller within three months following the Closing. ARTICLE VII CLOSING CONDITIONS Section 7.1 Conditions to Each Party’s Obligations to Effect the Transactions Contemplated Hereby. The respective obligations of each party to effect the transactions contemplated hereby shall be subject to the fulfillment at or prior t o the Closing Date of the following conditions: (a) Neither Seller nor Purchaser shall be subject to any injunction of a court of competent jurisdiction which permanently prevents or prohibits the Closing; provided, however, that in order for a party to invoke such condition to Closing, such party must have used reasonable efforts to prevent the issuance of such injunction; and (b) Each of Seller and Purchaser and any other person (as defined in the HSR Act) required in connection with the transactions contemplated hereby to fi le a Notification and Report Form for Certain Mergers and Acquisitions with the Department of Justice and the FTC pursuant to the HSR Act shall have made such filing and all applicable waiting periods with respect to each such filing (including any extensions thereof) shall have expired or been terminated. Section 7.2 Conditions Precedent to the Obligation of Seller. In addition to the requirements of Section 7.1, the obligations of Seller under this Agreement are subject to the fulfillment of all of the following conditions precedent at or prior to Closing: (a) Seller shall have received a favorable opinion from a reputable investment banking firm to the fairness, from a financial point of view, of the consideration to be received by Seller pursuant to this Agreement based upon information available to the Board of Directors of Mark VII as of the date hereof, and Mark VII shall have engaged an investment banking firm within ten days after the date hereof for the purpose of rendering the opinion contemplated by Section 7.2(a) hereof.(b) Seller shall not have received a bona fide indication of interest from a third party relating to the possible acquisition of the Transferred Assets that the Board of Directors of Mark VII determines is superior to the transaction contemplated hereby; (c) The transactions contemplated by this Agreement shall have been approved by the shareholders of Mark VII; (d) Seller shall have been fully and unconditionally released or indemnified by Purchaser from any and all of the Assumed Liabilities; and (e) Purchaser shall have executed and delivered a counterpart of the Facility Lease. ARTICLE VIII INDEMNIFICATION Section 8.1 Indemnification by Seller. Each of Mark VII, Carriers and Mo-Neb, jointly and severally, shall indemnify, defend and hold Purchaser harmless from and against any and all claims, causes of action, suits, judgments, taxes, losses, dam ages, deficiencies, obligations, costs and expenses (including, without limitation, interest, pena lties, reasonable attorneys’ fees and costs), direct or indirect, fixed, contingent or otherwise (“Claims”), arising out of or otherwise in respect of (i) the breach of any representation, warranty, covenant or agreement of Seller contained in this Agreement; (ii) any liabi lities of Mo- Neb which exist at or as of the commencement of the Management Period or which ari se after the commencement of the Management Period but which are based upon or arise from any act, omission, transaction, circumstance, sale of goods or services, state of facts or other condition by or with respect to Mo-Neb which occurred or exist ed on or before the commencement of the Management Period, whether or not then known, due or payable, except to the extent included in the Assumed Liabilities; or (iii) any act, omission, transaction, circumstance, sale of goods or services, state of facts or other condition by or with respect to Mo-Neb which occurred or existed after the Termination Date, if any (other than to the extent that the subject matter of clause (ii) of Section 8.2 results in Clai ms after the Termination Date). The indemnification undertaken by Mark VII, Carriers and Mo-Neb, jointly and severall y is and shall be absolute, unconditional, and irrevocable and, except as set forth herein, sha ll not be subject to any right of set-off or counterclaim. Section 8.2 Indemnification by Purchaser. Each of Swift and Swift-Az, jointly and severally, shall indemnify, defend and hold Seller harmless from and against any and all Claims arising out of or otherwise in respect of (i) the breach of any represent ation, warranty, covenant or agreement of Purchaser contained in this Agreement, (ii) the operation of the Business or ownership of the Transferred Assets, or any liability or obligation of any person or entity (other than Seller) utilized by Purchaser to Manage, on or after commencement of the Management Period and to the Termination Date, if any, or (iii) during the Management Period and from and after the Closing any of the Assumed Liabilities (regardless of whether Sell er waives release of such Assumed Liabilities in order to permit the Closing to occur). The indemnification undertaken by Swift and Swift-Az, jointly and severally, shall be absolute, unconditional and irrevocable and shall not be subject to any right of set-off or counterclaim. Section 8.3 Indemnification Procedures. A party seeking indemnification under Section 8.1 or 8.2 (the “Indemnified Party”) agrees to give prompt written notice t o the party against whom indemnification is sought (the “Indemnifying Party’) of the assertion of any Claim or commencement of any proceeding in respect of which indemnification ma y be sought. The Indemnifying Party may, at its expense, assume the defense of any Claim or proceeding in respect of which indemnification is sought hereunder, and take all steps to settle or de feat any such Claims, and to employ counsel to contest any such Claims; provided, however, that t he Indemnifying Party shall reasonably consider the advice of the Indemnified Party as to the defense of such Claims. The Indemnified Party shall have the right to participate at its own expense in such defense, but the control of such litigation or settlement shall rema in with the Indemnifying Party. The Indemnified Party shall provide all reasonable cooperation in connection with any such defense. If a party from whom indemnification is sought elects not to undertake the defense thereof or does not do so in a timely fashion, the Indemnified Party shal l be entitled to control the defense or settlement of such claim or proceeding and shall be entitled to indemnity with respect thereof. Section 8.4 Limitation of Liability. The parties’ obligation to indemnify against any Claims shall be subject to the limitations set forth below: (a) No indemnification of Claims shall be required to be made by a party under Section 8.1 or 8.2 unless an individual Claim is greater than $250 or the aggregate amount of all individual Claims under $250 exceeds $10,000. In the event that the aggregate amount of all individual Claims under $250 exceeds $10,000, indemnification shall be made by a party only to the extent that the aggregate amount of such Claims exceeds $10,000. Anything to the contrary notwithstanding, Seller shall indemnify Purchaser from the first dollar on all Claims relating to the condition of Equipment. (b) A party shall be obligated to indemnify only for a Claim if the indemnified party has given the indemnifying party written notice thereof promptly aft er becoming aware of the facts or circumstances relating to such Claim. Any written notice delivered by the indemnified party to the indemnifying party pursuant to this paragraph (b) shall set forth with reasonable specificity the basis of the Claim and a reasonable estimate of the amount thereof. (c) Any Claim made by the indemnified party shall be computed net of any insurance coverage with respect thereto which reduces the indemnified party’s losses or damages that would otherwise be sustained. (d) Anything in this Agreement to the contrary notwithstanding, no director, officer or employee of an indemnifying party shall have any liability roan indemnified party as a result of the breach of any agreement, representation or warrant y of an indemnifying party contained herein or as a result of his or her signing any document or instrument to be delivered hereunder. ARTICLE IX MISCELLANEOUS Section 9.1 Termination. (a) Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated (i) by mutual consent of all parties hereto, (ii) by either party if by October 31, 1994, the Securities and Exchange Commission shall have cleared the proxy statement of Mark VII relating to the Mark VII shareholders’ meeting contemplated by Section 6.4 and such meeting shall not have been held within 30 days after the mailing of such proxy statement or (iii) by either party if the Closing shall not have occurred by December 31, 1994. (b) Seller may terminate this Agreement if any of the conditions to Closing contained in Section 7.2 shall not have been satisfied or waived prior to the Closing. (c) In the event of termination of this Agreement as provided above, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto, provided, however, nothing in this Section 9.1 shall relieve any party from liability for any breach of this Agreement. Section 9.2 Costs and Expenses; Brokers’ Fees. Each party to this Agreement shall bear its own expenses incurred in connection with the negotiati on and execution of this Agreement and the Closing. Each party represents that it has not employed a broker or finder in connection with this Agreement, and any party through which a broker or finder cl aims any fee, commission, or payment resulting from or arising out of the negotiation or executi on of this Agreement or the consummation of the transactions contemplated hereby agrees to indemnify, defend and hold the other harmless from and against any claim. Section 9.3 Survival of Representations, and Warranties. Unless otherwise specifically provided herein, the representations and warranties of the partie s hereto contained in this Agreement or in any certificate or other writing delivered pursuant he reto or in connection herewith shall survive the Closing through the third anniversary of the Closing Date. Notwithstanding the preceding sentence, any representation or warranty in respect of which indemnity may be sought under Section 8.1 or 8.2 and the indemnity provided for in Section 8.3 shall survive the time at which it would otherwise terminate pursuant to the preceding sentence, if notice of the inaccuracy or breach thereof giving rise to such right to indemnit y shall have been given in good faith to the party against whom such indemnity may be sought prior to suc h time. Section 9.4 Complete Agreement, etc. All Schedules and Exhibits referred to herein are intended to be and hereby are specifically made a part of this Agreement. This Agreement sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby. It shall not be amended or modified except by writt en instrument duly executed by each of the parties hereto. Any and all previous agreement s and understandings between or among the parties regarding the subject hereof whether written or oral, are superseded by this Agreement. Section 9.5 Assignment and Binding Effect. This Agreement may not be assigned prior to the Closing by any party hereto without the prior written consent of the other parties. Subject to the foregoing, all of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of any party. Section 9.6 Waiver. Any term or provision of this Agreement may be waived at any time by the party entitled to the benefit thereof by a writte n instrument duly executed by such party. Section 9.7 Notices. Any notice, request, demand, waiver, consent, approval or other communication which is required or permitted hereunder shall be i n writing and shall be deemed given only if delivered personally or sent by telegram or by certi fied mail, postage prepaid, and sent by telecopier as follows: If to Purchaser: Mr. Jerry C. Moyes, President Swift Transportation Co., Inc. 5601 W. Mohave Phoenix, Arizona 85031 Telecopy: (602) 352-6308 With a required copy to:Earl H. Scudder, Jr. Esq. Scudder Law Firm P.C. 411 S. 13th Street, Suite 200 Lincoln, Nebraska 68508 Telecopy: (402) 435-4239 If to Seller: Mr. J. Michael Head, President Mark VII, Inc. 10100 N.W. Executive Hills Boulevard Suite 200 Kansas City, Missouri 64153 Telecopy: (816) 891-7373 With a required copy to: Randall B. Sunberg, Esq. Shook, Hardy & Bacon P.C. One Kansas City Place 1200 Main Street Kansas City, Missouri 64105-2118 Telecopy: (816) 421-5547 or to such other address as the addressee may have specified in a notice duly given to t he sender as provided herein. Such notice, request, demand, waiver, consent, approval or other communication will be deemed to have been given as of the date so personal ly delivered, telegraphed or deposited in the mail and telefaxed. Section 9.8 Cooperation. Subject to the terms and conditions herein provided, the parties hereto shall use their best efforts to take, or cause to be take n, such action, to execute and deliver, or cause to be executed and delivered, such additional doc uments and instruments and to do, or cause to be done, all things necessary, proper or advisable under the provisions of this Agreement and under applicable law to consummate and make effec tive the transactions contemplated by this Agreement. Section 9.9 Governing Law. This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the State of Missouri, without givi ng effect to the choice of law provisions thereof. Section 9.10 Headings. Gender and Person. All section headings contained in this Agreement are for convenience and reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. Words used herein, regardless of the number and gender specifically used, shall be deemed a nd construed to include any other number, singular or plural, and any other gender, masculine , feminine, or neuter, as the context requires. Any reference to a “person” herein shall include an individual, firm, corporation, partnership, trust, governmental authority or any other entity. Section 9.11 Severability. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such i nvalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, any such invalidity or unenforceability in any jurisdiction shall not invalida te or render unenforceable such provision in any other Jurisdiction. Section 9.12 Counterparts. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. Section 9.13 No Solicitations. Subject to the second sentence of this Section 9.13, Seller undertakes and agrees that between the date of execution of this Agreeme nt and the earlier of the termination hereof or the Closing Date, Seller will not initiate any discussions with any other prospective purchaser of the Transferred Assets. Seller shall be permitted, pursuant to its fiduciary duties to its shareholders, to conduct discussions with third parties who initia te such discussions or otherwise indicate an interest in acquiring any part of the Transferred Assets. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first written. SWIFT TRANSPORTATION CO., INC.,a Nevada corporation By: ___________________________________ William F. Riley III,Executive Vice President SWIFT TRANSPORTATION CO., INC., an Arizona corporation By: ___________________________________ William F. Riley, III,Executive Vice President KARK VII, INC. By: ___________________________________ J. Michael Head, President MNX CARRIERS, INC. By: ___________________________________ Howard Petersen, President MISSOURI-NEBRASKA EXPRESS, INC. By: ___________________________________ Howard Petersen, President