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EXHIBIT 1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of December
3, 1999, between LOGISTICS MANAGEMENT, LLC, a limited liability company
organized under the laws of the State of Kentucky (the "PURCHASER"),
PROFESSIONAL TRANSPORTATION GROUP LTD., INC. (the "CORPORATION") and XXXXXX
XXXXX, an individual who is the Chief Executive Officer of the Corporation (the
"SELLER").
A. The Seller desires to sell, and the Purchaser desires to
purchase, upon the terms and conditions stated in this Agreement, 2,500,000
shares of the Seller's Common Stock ("Common Stock Shares") and all of his
options and warrants to purchase securities of the Corporation (collectively,
the "SHARES").
B. The Purchaser desires to lend to Seller and Seller desires to
borrow from Purchaser the sum of $500,000 pursuant to a promissory note in the
form attached as Exhibit A hereto (the "Seller Note").
C. Seller shall use the proceeds from the Note to make a capital
contribution (the "Capital Contribution") to the Corporation.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is acknowledged the Corporation and the Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF SHARES; ISSUANCE OF SELLER NOTE.
(a) Purchase of Shares and Closing. On the date of the Closing,
the Purchaser shall purchase from the Seller and the Seller shall sell to
Purchaser the Shares for an aggregate purchase price of $3,000,000 (the
"Purchase Price"). The Purchase Price shall be paid by the execution and
delivery of a Promissory Note in the form attached as Exhibit B hereto and
cancellation of the Seller Note in accordance with the terms thereof. In
addition to the Purchase Price, the Purchaser shall deliver to the Seller shares
of U.S. Trucking, Inc. in a dollar amount equivalent to any federal or state
income taxes actually incurred by the Seller with respect to collections on the
Promissory Note, but not to exceed $600,000. Such additional consideration shall
be delivered to the Seller within 30 days from the date the Seller furnishes the
Purchaser with a true and complete copy of his tax return(s) reflecting such
taxes.
(b) Closing Date. The Seller shall deliver to Purchaser physical
certificates representing the Shares. Seller shall deliver to Purchaser
certificates or agreements, duly endorsed or otherwise with enforceable
instruments of transfer, for all options and warrants which constitute Shares.
(c) Seller Note. On the date hereof Purchaser shall lend to Seller
and Seller shall borrow from Purchaser the sum of $500,000 pursuant to the
Seller Note.
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2. PURCHASERS' REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Seller and the Corporation
as follows:
(a) Authorization; Enforcement. This Agreement has been duly
authorized and has been validly authorized, executed and delivered on behalf of
Purchaser and is a valid and binding agreement of Purchaser enforceable against
Purchaser in accordance with its terms.
(b) Residency. Purchaser is a resident of the jurisdiction set
forth under Purchaser's name on the Execution Page hereto executed by Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION.
The Corporation represents and warrants to Purchaser as follows:
(a) Organization and Qualification. The Corporation and each of
its subsidiaries is a corporation duly organized and existing in good standing
under the laws of the jurisdiction in which it is incorporated, and has the
requisite corporate power to own its properties and to carry on its business as
now being conducted. The Corporation and each of its subsidiaries is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which its ownership of property or the nature of the
business conducted by it makes such qualification necessary and where the
failure so to qualify would have a Material Adverse Effect. "MATERIAL ADVERSE
EFFECT" means any material adverse effect on (i) the Shares, (ii) the ability of
the Corporation to perform its obligations hereunder or (iii) the business,
operations, properties, prospects or financial condition of the Corporation and
its subsidiaries, taken as a whole.
(b) Stockholder Authorization. Neither the execution, delivery or
performance of this Agreement, nor the consummation by it of the transactions
contemplated hereby or thereby requires any consent, approval or authorization
of the Corporation's stockholders.
(c) No Conflicts. The execution, delivery and performance of this
Agreement, and the consummation by the Corporation of the transactions
contemplated hereby and thereby will not (i) result in a violation of the
Articles of Incorporation or By-laws or (ii) conflict with, or constitute a
default (or an event which, with notice or lapse of time or both, would become a
default) under, or give to others any rights of termination, amendment
(including, without limitation, the triggering of any anti-dilution provisions),
acceleration or cancellation of, any agreement, indenture or instrument to which
the Corporation or any of its subsidiaries is a party, or result in a violation
of any law, rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations and rules or regulations of any
self-regulatory organizations to which either the Corporation or its Shares are
subject) applicable to the Corporation or any of its subsidiaries or by which
any property or asset of the Corporation or any of its subsidiaries is bound or
affected (except, with respect to clause (ii),
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for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations that would not, individually or in the aggregate,
have a Material Adverse Effect).
(d) SEC Documents, Financial Statements. Since December 31, 1998,
the Corporation has timely filed (within applicable extension periods) all
reports, schedules, forms, statements and other documents required to be filed
by it with the SEC pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") (all of the foregoing and
all exhibits included therein and financial statements and schedules thereto and
documents incorporated by reference therein being hereinafter referred to herein
as the "SEC DOCUMENTS"). The Corporation has delivered to the Purchaser true and
complete copies of the SEC Documents. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act, and the rules and regulations of the United Securities Exchange
Commission (the "SEC") promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. None of the statements made in any such SEC Documents is, or has
been, required to be amended or updated under applicable law (except for such
statements as have been amended or updated in subsequent filings made prior to
the date hereof). As of their respective dates, the financial statements of the
Corporation included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC applicable with respect thereto. Such financial
statements have been prepared in accordance with U.S. generally accepted
accounting principles ("GAAP"), consistently applied, during the periods
involved (except (i) as may be otherwise indicated in such financial statements
or the notes thereto, or (ii) in the case of unaudited interim statements, to
the extent they may not include footnotes or may be condensed or summary
statements), and fairly present in all material respects the consolidated
financial position of the Corporation and its consolidated subsidiaries as of
the dates thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to immaterial year-end audit adjustments). Except as set forth in the financial
statements of the Corporation included in the SEC Documents filed prior to the
date hereof, the Corporation has no liabilities, contingent or otherwise, other
than (i) liabilities incurred in the ordinary course of business subsequent to
the date of such financial statements, (ii) liabilities not required by GAAP to
be disclosed on a balance sheet prepared in accordance with GAAP, and (iii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under GAAP to be reflected in such financial
statements, which liabilities and obligations referred to in clauses (i), (ii)
and (iii), individually or in the aggregate, are not material to the financial
condition or operating results of the Corporation. Neither the Corporation nor
any of its subsidiaries or any of their officers, directors, employees or agents
have provided the Purchaser with any material, nonpublic information.
(e) Absence of Certain Changes. Since December 31, 1998, there has
been no material adverse change and no material adverse development in the
business, properties, operations, financial condition or results of operations
of the Corporation and its subsidiaries, taken as a whole.
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(f) Disclosure. All information relating to or concerning the
Corporation set forth in this Agreement or provided to the Purchaser in
connection with the transactions contemplated hereby is true and correct in all
material respects and the Corporation has not omitted to state any material fact
necessary in order to make the statements made herein or therein, in light of
the circumstances under which they were made, not misleading. No event or
circumstance has occurred or exists with respect to the Corporation or its
subsidiaries or their respective businesses, properties, operations or financial
conditions, which has not been publicly disclosed but, under applicable law,
rule or regulation, would be required to be disclosed by the Corporation in a
registration statement filed on the date hereof by the Corporation under the
Securities Act of 1933 with respect to the primary issuance of the Corporation's
Shares.
(g) No Brokers. Except for a fee of $90,000 payable to Xxxxxxxx
and Xxxxxxxx, LLC, the Corporation has taken no action which would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments by the Purchaser relating to this Agreement or the transactions
contemplated hereby.
3A. Representations and Warranties of the Seller.
The Seller represents and warrants to Purchaser as follows:
(a) Ownership of Shares. The Seller represents and warrants that
the Common Stock Shares constitute at least 55.8% of the issued and outstanding
common stock of the Corporation. The Seller further represents that he owns the
Shares free and clear of all liens, claims and encumbrances of any kind and
nature, has full power and authority to enter into this Agreement and consummate
the transactions contemplated hereby, that, upon transfer of the Shares by
Seller to Purchaser, Purchaser shall have good, valid and marketable title in
and to the Shares, and that the transfer of the Shares by Seller to Purchaser
will not violate any law, rule, regulation, contract, agreement, indenture or
instrument applicable to the Seller or by which the Seller is bound. The Seller
represents and warrants that the Shares have been held by Seller for more than 2
years.
4. COVENANTS.
(a) Reporting Status. So long as the Purchaser beneficially owns
any of the Shares, the Corporation shall timely file all reports required to be
filed with the SEC pursuant to the Exchange Act, and the Corporation shall not
terminate its status as an issuer required to file reports under the Exchange
Act even if the Exchange Act or the rules and regulations thereunder would
permit such termination.
(b) Use of Proceeds. The proceeds from the Capital Contribution
shall be used by the Corporation for working capital.
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(c) Expenses. Except as otherwise provided herein, each party
hereto shall be responsible for its own expenses incurred in connection with the
negotiation, preparation, execution, delivery and performance of this Agreement
and the other agreements to be executed in connection herewith.
(d) Board Rights. The Corporation and Seller agree to take all
action necessary, if a Demand (as defined in Section 3 of the Note) is made by
Purchasers, to nominate and elect to the Board of Directors of the Corporation,
nominees selected by the Purchaser which nominees shall constitute not less than
a majority of the number of directors on the Board of Directors of the
Corporation immediately following such action. The action taken by the
Corporation and the Seller may include, but is not limited to, calling a special
meeting of the Corporation's shareholders to nominate and elect the directors
selected by the Purchaser. In connection with such action Seller shall vote any
shares of Common Stock owned or controlled by Seller in favor of the nominees
appointed by Purchaser. Such action will occur not later than two days after a
Demand is made provided that the Note has not been satisfied prior to such date.
5. TRANSFER AGENT INSTRUCTIONS.
(a) The Corporation shall instruct its transfer agent to issue
certificates, registered in the name of the Purchaser or its nominee, for the
Shares in such amounts as specified from time to time by such Purchaser.
(b) If the Purchaser provides the Corporation and the transfer
agent with an opinion of counsel, which opinion of counsel shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions, to the effect that the Shares to be sold or transferred may be
sold or transferred pursuant to an exemption from registration, or the Purchaser
provides the Corporation with reasonable assurances that such Shares may be sold
under Rule 144(k), the Corporation shall permit the transfer of the Shares and
instruct its transfer agent to issue one or more certificates in such name and
in such denominations as specified by the Purchaser.
6. GOVERNING LAW; MISCELLANEOUS.
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(a) Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to principles of choice of law or conflicts of laws that would defer to
the substantive law of another jurisdiction. The Corporation irrevocably
consents to the jurisdiction of the United States federal courts and the state
courts located in the State of New York in any suit or proceeding based on or
arising under this Agreement and irrevocably agrees that any and all claims
arising out of this Agreement or related to the transactions contemplated by
this Agreement shall be determined exclusively in such courts. The Corporation
irrevocably waives the defense of an inconvenient forum to the maintenance of
such suit or proceeding. The Corporation further agrees that service of process
mailed by first class mail shall be deemed in every respect effective service of
process in any such suit or proceeding. Nothing herein shall affect the right of
the Purchaser to serve process in any other manner permitted by law. The
Corporation agrees that a final non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
(b) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
(c) Headings. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction chosen by the Purchaser.
(e) Entire Agreement; Amendments. This Agreement and the
instruments referenced herein contain the entire understanding of the Purchaser,
the Corporation, their affiliates and persons acting on their behalf with
respect to the matters covered herein and therein and, except as specifically
set forth herein or therein, neither the Corporation nor the Purchaser makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived other than by an instrument in
writing signed by the party to be charged with enforcement. Amended by the
parties whose rights are affected herein.
(f) Notices. Any notices required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier or by confirmed
facsimile, and shall be effective upon receipt or refusal of receipt, if
delivered personally or by courier or confirmed facsimile, in each case
addressed to a party. The address for such communications shall be:
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LOGISTICS MANAGEMENT, LLC PROFESSIONAL TRANSPORTATION
00000 Xxxxxxxxxx Xxxxxx, Xxxxx 0 GROUP LTD., INC.
Louisville, KY 0000 Xxxxxxxx Xxxxxx, Xxxxx X-000
Telecopy: (000) 000-0000 Xxxxxxxx, XX. 00000
Attn: Xxxxxxx Xxxx Attn: Xxxxxx Xxxxx
Each party shall provide notice to the other parties of any change in
address.
(g) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns. Except
as provided herein or therein, the Corporation shall not assign this Agreement.
(h) Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
(i) Survival. The representations, warranties, agreements and
covenants of the Corporation set forth in Sections 3, 4, 5 and 6 hereof shall
survive the Closing notwithstanding any investigation conducted by or on behalf
of any Purchaser until the date on which Purchaser no longer own any Shares.
None of the representations and warranties made by the Corporation herein shall
act as a waiver of any rights or remedies a Purchaser may have under applicable
federal or state Securities laws. The Corporation shall indemnify and hold
harmless each Purchaser and each of such Purchaser's officers, directors,
employees, partners, members, agents and affiliates for all losses or damages
arising as a result of or related to any breach or alleged breach by the
Corporation of any of its representations or covenants set forth herein,
including advancement of reasonable expenses as they are incurred.
(j) Publicity. The Corporation and the Purchaser shall have the
right to review before issuance any press releases, SEC or NASDAQ filings, or
any other public statements with respect to the transactions contemplated
hereby; provided, however, that the Corporation shall be entitled, without the
prior review of the Purchaser, to make any press release or SEC or NASDAQ
filings with respect to such transactions as is required by applicable law and
regulations (although the Purchaser shall be consulted by the Corporation in
connection with any such press release and filing prior to its release and shall
be provided with a copy thereof).
(k) Further Assurances. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(l) Joint Participation in Drafting. Each party to this Agreement
has participated in the negotiation and drafting of this Agreement. As such, the
language used herein and therein shall be
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deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party to
this Agreement.
(m) Equitable Relief. The Corporation acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to the Purchaser
by vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Corporation acknowledges that the remedy at law for a breach of
its obligations hereunder (including, but not limited to, its obligations
pursuant to Section 5 hereof) will be inadequate and agrees, in the event of a
breach or threatened breach by the Corporation of the provisions of this
Agreement (including, but not limited to, its obligations pursuant to Section 5
hereof), that the Purchaser shall be entitled, in addition to all other
available remedies, to an injunction restraining any breach and requiring
immediate issuance and transfer of the Shares, without the necessity of showing
economic loss and without any bond or other security being required.
7. AGREEMENT CONTINGENT.
This Agreement and the undertakings contemplated herein are expressly
conditioned upon its approval by SouthTrust Bank, N.A.
8. INDEMNIFICATION OF SELLER'S GUARANTIES.
Purchaser agrees that in the event it consummates the purchase of
Seller's Shares as contemplated herein, it shall use its reasonable best efforts
to cause Seller to be removed from any and all liability he may have as
guarantor for obligations of the Corporation or its subsidiaries. Furthermore,
Purchaser agrees on behalf of itself, its predecessors in interest, successors
and assigns to indemnify, reimburse, compensate, defend and hold the Seller
harmless from and against any and all demands, claims, actions or causes of
action, assessments, liabilities, losses, damages, costs and expenses
(including, without limitation, interest, penalties and reasonable attorneys'
fees, disbursements and expenses) which are asserted against the Seller in
connection with any of such guaranties.
9. NO MATERIAL ADVERSE CHANGE.
During the 31-day period beginning with the date of execution of this
Agreement (or such other period upon which the parties mutually agree in
writing) there shall occur no material adverse change in the financial condition
or the operation of the Corporation (or any of its affiliates) which adversely
affects the conduct of the Corporation's business (and the business of its
affiliates) as currently conducted, specifically including, without limitation:
changes in personnel except in the ordinary course of business, the relocation
of the Corporation's offices or personnel or substantial changes in the assets
of the Corporation, without the prior written consent of the Seller.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first above written.
PROFESSIONAL TRANSPORTATION LOGISTICS MANAGEMENT, LLC
GROUP LTD., INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
-------------------------- ------------------------
Name: Name: Xxxxx X. Xxxxxx
Title: Title: Manager
XXXXXX XXXXX
/s/ Xxxxxx X. Xxxxx
------------------------------------------
ADDRESS: c/o PROFESSIONAL TRANSPORTATION
GROUP LTD., INC.
0000 Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxxx, XX. 00000
Attn: Xxxxxx Xxxxx
