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EXHIBIT 10.3
FIRST AMENDMENT TO
ACQUISITION AGREEMENT, EMPLOYMENT AGREEMENT
AND COVENANT NOT TO COMPETE
THIS FIRST AMENDMENT TO ACQUISITION AGREEMENT, EMPLOYMENT AGREEMENT AND
COVENANT NOT TO COMPETE (this "Amendment"), made this 17 day of March, 2000, by
and among ▇▇▇▇ BROS. TRANSPORTATION INC., a Delaware corporation (hereinafter
referred to as "▇▇▇▇"), ▇▇▇▇▇▇▇ TRANSPORT, INC., (formerly known as W. T.
Acquisition Corp.), an Alabama corporation (hereinafter referred to as "▇▇▇▇
Sub"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇") (▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ are hereinafter sometimes collectively referred to as the
"Shareholders").
W I T N E S S E T H:
WHEREAS, ▇▇▇▇, ▇▇▇▇ Sub and the Shareholders (together with ▇▇▇▇▇▇▇
Transport, Inc., which was merged into ▇▇▇▇ Sub) entered into an Acquisition
Agreement, dated October 8, 1997 (the "Acquisition Agreement"); and
WHEREAS, ▇▇▇▇, ▇▇▇▇ Sub and ▇▇▇▇▇▇▇ entered into a Covenant Not to
Compete, erroneously dated as of December 8, 1998 (the "▇▇▇▇▇▇▇ Noncompete
Agreement"); and
WHEREAS, ▇▇▇▇, ▇▇▇▇ Sub and ▇▇▇▇▇▇ entered into a Covenant Not to
Compete, erroneously dated as of December 8, 1998 (the "▇▇▇▇▇▇ Noncompete
Agreement", the ▇▇▇▇▇▇▇ Noncompete Agreement and the ▇▇▇▇▇▇ Noncompete Agreement
are hereinafter collectively referred to as the "Noncompete Agreements"); and
WHEREAS, ▇▇▇▇ and ▇▇▇▇▇▇▇ entered into an Employment Agreement, dated
as of December 8, 1997 (the "▇▇▇▇▇▇▇ Employment Agreement"); and
WHEREAS, ▇▇▇▇, ▇▇▇▇ Sub and the Shareholders desire to amend the
Acquisition Agreement, the Noncompete Agreements and the ▇▇▇▇▇▇▇ Employment
Agreement to correct certain typographical errors contained therein and to
modify certain terms and conditions contained therein, all as more particularly
set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, agreements, representations, warranties and covenants hereinafter set
forth, and the sum of ten dollars and other good and valuable consideration, the
receipt and sufficiency of which is hereby specifically agreed to and
acknowledged, the Acquisition Agreement, Noncompete Agreements and ▇▇▇▇▇▇▇
Employment Agreement are each hereby amended as follows:
1. AMENDMENT TO ACQUISITION AGREEMENT. Section 4.5.1. of the
Acquisition Agreement is hereby amended by deleting said Section in its entirety
and substituting in lieu thereof a new 4.5.1 reading as follows:
"4.5.1 For a period of one (1) year from the Closing Date (the
"Restricted Period"), the shares of ▇▇▇▇ Common Stock held by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ shall not be voluntarily or involuntarily transferred,
assigned, sold or conveyed and the certificates representing such
shares shall bear a legend to that effect. The words "transfer, assign,
sell or convey" as used in this Section 4.5.1 shall include the grant
of any proxy, the establishment of any voting
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trust or any sale, hypothecation, pledge, assignment or other
conveyance, with or without consideration or incidence of ownership or
title as to any share of ▇▇▇▇ Common Stock owned of record or
beneficially by the Shareholder, regardless of whether record or
beneficial title to such shares is thereby transferred. After the
Restricted Period, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may not, during any one calendar
quarter, voluntarily or involuntarily transfer, assign, sell or convey
a number of shares of ▇▇▇▇ Common Stock which is greater than one
percent (1%) of the number of shares of ▇▇▇▇ Common Stock outstanding
at the beginning of such calendar quarter. In the event that ▇▇▇▇▇▇
▇▇▇▇▇▇▇ sells shares of ▇▇▇▇ Common Stock on the open market during the
ten (10) calendar quarters immediately following the second anniversary
of the Closing Date at a per share price which is less than $6.50 per
share (the "Per Share Minimum Price") (as the same may be adjusted
pursuant to Section 2.1.4 hereof), ▇▇▇▇ shall pay to ▇▇▇▇▇▇▇ the
difference between the Per Share Minimum Price and the per share price
at which such shares were sold on the open market, such payment to be
made within ten (10) days after ▇▇▇▇▇▇▇ transmits to ▇▇▇▇ confirmation
of such sale. Notwithstanding anything to the contrary contained in
this Agreement, in the event ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ elects to sell shares of
▇▇▇▇ Common Stock on the open market during the ten (10) calendar
quarters immediately following the second anniversary of the Closing
Date at a price that is less than the Per Share Minimum Price, then
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ must first deliver written notice thereof, in the form
of Exhibit 4.5.1(a) attached hereto (an "Offer Notice"), to the Chief
Financial Officer of the Company in order to provide the Company a
right of first refusal on the following terms and conditions:
(a) The Offer Notice must contain a full description of
the proposed sale of ▇▇▇▇ Common Stock by ▇▇▇▇▇▇
▇▇▇▇▇▇▇, including, without limitation, the number of
shares of to be sold (the "Affected Shares"), the
proposed price per share of the ▇▇▇▇ Common Stock,
terms of payment for the Affected Shares and the
proposed date of such sale. An Offer Notice shall
constitute ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ binding agreement to sell
all of the Affected Shares to the Company on the
terms and conditions specified therein.
(b) If the Company elects to purchase all, and not less
than all, of the Affected Shares from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
the Company shall have until 5 p.m. Clayton, Alabama
time on the first business day following the
Company's receipt of the Offer Notice (the "Offer
Deadline") to deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in writing,
notice of its election to so purchase the Affected
Shares (the "Company Acceptance"). Upon such election
by the Company, the Company shall purchase, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall sell, of the Affected Shares to
the Company upon the terms and conditions contained
in the Offer Notice within three (3) business days
following ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ receipt of the Company
Acceptance. At the closing, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall
deliver to the Company his confirmation that he has
transferred the Affected Shares free and clear of any
and all pledges, liens, claims, security interests or
other encumbrances (other than restrictions imposed
by this Agreement or applicable securities laws) and
the Company shall pay to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ the
consideration set forth in the Offer Notice in
accordance with the terms described therein, as well
as any additional payments in connection with the Per
Share Minimum Price contemplated by the first
paragraph of this Section 4.5.1.
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(c) If the Company fails to provide ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ notice
of its election to purchase or not to purchase the
Affected Shares on or before the Offer Deadline, or
if the Company notifies ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ that it has
elected not to purchase the Affected Shares, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ shall be free to sell the Affected Shares on
the open market in strict accordance with the terms
set forth in the Offer Notice at any time within
ninety (90) days after the Offer Deadline (the
"Transfer Period Termination Date"). In the event
that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ does not sell or otherwise
dispose of all of such Affected Shares in the manner
set forth in the immediately preceding sentence prior
to the Transfer Period Termination Date, the right of
first refusal provided for in this Section 4.5.1
shall continue to be applicable to any subsequent
sale or transfer of such Affected Shares.
2. AMENDMENTS TO NONCOMPETE AGREEMENTS. Solely in order to correct an
unintended typographical error contained therein, the date of each Noncompete
Agreement appearing on the first and second lines of the Noncompete Agreements
(below the titles thereof) shall be changed from "8th day of December 1998" to
"8th day of December, 1997" to correctly reflect the date on which each of these
Noncompete Agreements was executed.
3. AMENDMENTS TO ▇▇▇▇▇▇▇ EMPLOYMENT AGREEMENT.
(a) Solely to correct an unintended typographical error
contained therein, and to accurately reflect the actual intent of the parties
thereto, Section 2 of the ▇▇▇▇▇▇▇ Employment Agreement is hereby amended by
deleting the last clause of the first sentence thereof, which reads as follows:
"which duties shall include acting as Chairman of the Board of
▇▇▇▇."
and substituting in lieu thereof the following clause:
"which duties shall include acting as Chairman of the Board of
▇▇▇▇▇▇▇."
(b) Solely to correct an unintended typographical error
contained therein, Section 7(d) of the ▇▇▇▇▇▇▇ Employment Agreement is hereby
amended by deleting the bracket symbols ("[" and "]") immediately preceding and
immediately following sub-clause (ii) therein.
4. NO OTHER MODIFICATIONS. Except to the extent expressly amended
herein, all terms and conditions of the Acquisition Agreement, Noncompete
Agreements and ▇▇▇▇▇▇▇ Employment Agreement are hereby affirmed and shall remain
in full force and effect.
5. GOVERNING LAW. This Amendment shall be governed by and construed and
interpreted in accordance with, the laws of the State of Alabama without giving
effect to any conflict or choice of laws principles.
6. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has executed or caused this
Amendment to be executed on its behalf, all on the day and year first above
written.
▇▇▇▇ BROS. TRANSPORTATION INC.
"▇▇▇▇"
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: CFO
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▇▇▇▇▇▇▇ TRANSPORT, INC.
"▇▇▇▇ Sub"
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Chairman
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SHAREHOLDERS
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
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EXHIBIT 4.5.1
FORM OF OFFER NOTICE
▇▇▇▇ Bros. Transportation, Inc. VIA FAX:_____________________
32 ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Pursuant to Section 4.5.1 of the Acquisition Agreement, this is to
provide notice that the undersigned proposes to sell in the open market during
the next _______ days (not to exceed 90 days), ____________ shares of ▇▇▇▇
Common Stock at a proposed price per share of not less than $____________ for
______________ (state terms of sale, i.e., cash, credit, etc.). Please advise if
you wish to exercise your right of first refusal to purchase pursuant to Section
4.5.1 of the Acquisition Agreement.
As used herein, all defined terms shall have the same meaning as found
in that certain Acquisition Agreement between and among ▇▇▇▇, ▇▇▇▇ Sub, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, dated October 8, 1997.
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