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EXHIBIT 10.5
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), made and
entered into this 7th day of January, 1999, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
an individual resident of the State of Alabama ("Seller") and ▇▇▇▇ BROS.
TRANSPORTATION, INC., a Delaware corporation ("Purchaser" or the "Company");
W I T N E S S E T H:
WHEREAS, Seller owns an aggregate of 531,114 shares of the
outstanding common stock, $.001 par value per share ("Common Stock") of
Purchaser; and
WHEREAS, Purchaser desires to purchase from Seller and Seller
desires to sell to Purchaser Five Hundred (500,000) shares of Common Stock owned
by Seller (the "Shares");
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
SECTION 1. PURCHASE OF SHARES.
1.1. TRANSFER OF SHARES. On the terms and subject to the
conditions set forth in this Agreement, Seller hereby agrees to sell, assign,
transfer and deliver to Purchaser all of his right, title and interest in and to
the Shares owned by Seller.
1.2. PURCHASE PRICE. On the terms and subject to the
conditions set forth in this Agreement, Purchaser shall pay a total purchase
price (the "Purchase Price") of Three Million Six Hundred Sixty Thousand Dollars
($3,660,000), or $7.32 per share, to Seller in the manner described below.
Purchaser shall pay the Purchase Price to Seller contemporaneously with the
execution and delivery of this Agreement and the Shares.
SECTION 2. PAYMENT OF PURCHASE PRICE.
Upon delivery of the Shares, Purchaser shall pay to Seller the
Purchase Price by delivering to an account or accounts designated by Seller by
wire transfer in immediately available funds. Wire transferred funds shall be
deemed delivered when dispatched by Buyer or its agents over the Federal Funds
Transfer Wire Service and a Federal Funds wire number is obtained in respect
thereof from the Federal Reserve System or its agent.
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SECTION 3. INSTRUMENTS OF CONVEYANCE.
3.1. TRANSFER OF SHARES. Seller shall deliver stock
certificates representing all of his right, title and interest in and to the
Shares, duly endorsed in blank or accompanied by duly executed assignment
documents.
3.2. FURTHER ASSURANCES. Seller shall from time to time at
Purchaser's request and without further consideration execute and deliver to
Purchaser such instruments of transfer, conveyance and assignment in addition to
those delivered pursuant to Section 3.1 hereof as Purchaser shall reasonably
request to transfer, convey and assign more effectively all of his right, title
and interest in and to the Shares to Purchaser.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
4.1. AUTHORIZATION. This Agreement has been duly executed and
delivered by Seller and constitutes the legal, valid and binding agreement of
Seller, enforceable against Seller in accordance with its terms. Seller is not
required to give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
4.2. OWNERSHIP OF SHARES. Seller is the lawful owner of the
Shares, free and clear of any liens, charges, claims, security interests or
other encumbrances of any nature whatsoever. Seller has the full legal right,
power and authority to sell, assign, transfer and deliver his Shares to
Purchaser, free and clear of all liens, charges, claims, security interests or
other encumbrances of any nature whatsoever, and the sale and delivery of the
Shares to Purchaser pursuant to this Agreement will transfer to Purchaser full
and legal title to all of the Shares, free and clear of any lien, encumbrance,
charge, claim, security interest, equity or restriction whatsoever. Seller is
not a party to any option, warrant, purchase right or other contract or
commitment that could require Seller to sell, transfer or otherwise dispose of
any capital stock of Purchaser (other than this Agreement). Seller is not a
party to any voting trust, proxy or other agreement or understanding with
respect to the voting of any capital stock of Purchaser.
4.3. NO VIOLATION. Neither the execution or delivery of this
Agreement nor the consummation by Seller of the transactions contemplated hereby
will (a) constitute a violation of any judgment, decree, order, regulation or
rule of any court or governmental authority or any statute or law or (b)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, or create in any party the right to accelerate, terminate,
modify or cancel any agreement, contract, lease, license, instrument or other
arrangement to which Seller is a party or by which he is bound or to which any
of his assets are subject. No consent, approval or authorization of any third
party is required in connection with the execution, delivery and performance of
this Agreement by Seller.
4.4. BROKERS AND FINDERS' FEES. Neither the Seller nor anyone
acting on his behalf has done anything to cause or incur any liability to any
party for any brokers' or finders' fees or the like in connection with this
Agreement or any transaction contemplated hereby.
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4.5. INVESTMENT. Seller (a) is a sophisticated investor with
knowledge and experience in business and financial matters; and (b) has had
access to such information, including financial information, of Purchaser as he
has desired in order to evaluate the transactions contemplated hereby and has
been given the opportunity to ask questions of and receive answers from
Purchaser and its representatives concerning Purchaser and to obtain any
additional information that Purchaser possesses or can reasonably obtain that is
necessary to verify the accuracy of the information furnished by Purchaser in
connection herewith.
4.6. DISCLOSURE. No representations or warranties by Seller
contained in this Agreement, and no statement, certificate, instrument or other
writing furnished or to be furnished by Seller to Purchaser pursuant to the
provisions hereof or in connection with the transactions contemplated hereby
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading.
SECTION 5. REPRESENTATIONS AND WARRANTIES BY PURCHASER.
Purchaser represents and warrants to Seller as follows:
5.1. PURCHASER'S EXISTENCE, POWER AND GOOD STANDING. Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Purchaser is duly qualified to do business as a
foreign corporation and is in good standing in Alabama.
5.2. AUTHORIZATION. This Agreement and its execution, delivery
and performance have been duly authorized by all necessary corporate action on
the part of Purchaser and are within its corporate power. This Agreement has
been duly executed and delivered by Purchaser and constitutes the legal, valid
and binding agreement of Purchaser, enforceable against Purchaser in accordance
with its terms.
5.3. SEC REPORTS. Since January 1, 1998, Purchaser has filed
with the Securities and Exchange Commission (the "Commission") all forms,
reports and documents required to be filed by it pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") (the "SEC Filings"), each of which, as
of its respective filing date, complied in all material respects with all
applicable requirements of the Exchange Act. None of the SEC Filings as of the
respective dates on which they were filed with the Commission 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. Since
September 30,1998, the most recent period for which the Purchaser has filed a
Quarterly Report under the Exchange Act, Purchaser has conducted its business in
the ordinary course and there has not been any change or changes that,
individually or in the aggregate, would have a material adverse effect on the
financial condition of the Purchaser.
5.4. BROKERS' AND FINDERS' FEES. Neither Purchaser nor anyone
acting on its behalf has done anything to cause or incur any liability to any
party for any brokers' or finders' fees or the like in connection with this
Agreement or any transaction contemplated hereby.
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5.5. NO VIOLATION. Neither the execution or delivery of this
Agreement nor the consummation by Purchaser of the transactions contemplated
hereby will (a) constitute a violation of any judgment, decree, order,
regulation or rule of any court or governmental authority or any statute or law
or (b) conflict with, result in a breach of, constitute a default under, result
in the acceleration of, or create in any party the right to accelerate,
terminate, modify or cancel any agreement, contract, lease, license, instrument
or other arrangement to which Purchaser is a party or by which it is bound or to
which any of its assets are subject. No consent, approval or authorization of
any third party is required in connection with the execution, delivery and
performance of this Agreement by Purchaser.
SECTION 6. COVENANTS OF SELLER.
For a period of two years from the date of this Agreement,
except in accordance with the terms of a specific written request from the
Company, Seller covenants that neither it nor any of its representatives, will
(A) propose or publicly announce or otherwise disclose an intent to propose, or
enter into or agree to enter into, singly or with any other person or directly
or indirectly, (i) any form of business combination, acquisition, or other
transaction relating to the Company or any majority-owned affiliate thereof,
(ii) any form of restructuring, recapitalization or similar transaction with
respect to the Company or any such affiliate, or (iii) any demand, request or
proposal to amend, waive or terminate any provision of this Agreement, or (B)
(i) acquire, or offer, propose or agree to acquire, by purchase or otherwise,
any securities whether debt or equity (the "Securities") of the Company,
including any indirect or direct options or other rights to acquire any such
Securities, (ii) make, or in any way participate in, any solicitation of proxies
with respect to any Securities (including by the execution of action by written
consent), become a participant in any election contest with respect to the
Company, seek to influence any person with respect to any Securities or demand a
copy of the Company's list of its stockholders or other books and records, (iii)
participate in or encourage the formation of any partnership, syndicate, or
other group which owns or seeks or offers to acquire beneficial ownership of any
Securities or which seeks to effect control of the Company or for the purpose of
circumventing any provision of this Agreement, or (iv) otherwise act, alone or
in concert with others (including by providing financing for another person), to
seek or to offer to control or influence, in any manner, the management, Board
of Directors, or policies of the Company.
SECTION 7. CERTAIN ADDITIONAL COVENANTS.
7.1. TAXES. Seller shall pay any stamp, transfer, real
property or other similar taxes attributable to the consummation of the
transactions contemplated by this Agreement.
7.2. EXPENSES. Except as provided in Section 7.1 hereof, each
party hereto shall bear the legal, accounting and other expenses incurred by
such party in connection with this Agreement.
7.3. FURTHER ASSURANCES. From time to time, upon request of
any party to this Agreement to any other party or parties and without further
consideration, the party or parties to whom the request was made shall execute,
acknowledge and deliver all such other instruments and
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shall take all such other action as may be requested to confirm or perfect or
otherwise carry out the intent and purposes of this Agreement.
7.4. DISCLOSURES. Except as may be required by law or the
rules of any stock exchange, no party hereto shall publicly disclose any aspect
of the Agreement.
SECTION 8. INDEMNIFICATION.
Each party hereto shall indemnify, defend and hold the other
harmless from and against any and all claims and losses, costs, damages and
expenses (including reasonable attorneys' fees and expenses) incurred by such
party, directly or indirectly, caused by, resulting from or arising out of any
misrepresentation by, or breach of any covenant or warranty of, the other
contained in this Agreement.
SECTION 9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made or undertaken by or on
behalf of any party hereto shall survive the execution of this Agreement and
continue in perpetuity; provided, however, that no party shall be liable to
another party hereto with respect to any claims, suits or proceedings arising
from a breach of a representation or warranty set forth in this Agreement
brought by a third party against such party after ninety (90) days after the
expiration of the applicable statute of limitations.
SECTION 10. MISCELLANEOUS.
10.1. BINDING EFFECT. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
successors and assigns.
10.2. GOVERNING LAW. This Agreement shall be deemed to be made
in, and in any and all respects shall be interpreted, construed and governed by
and in accordance with, the domestic laws of the State of Alabama, without
giving effect to any choice or conflict of law provision or rules that would
cause the application of the laws of any other jurisdiction.
10.3. AMENDMENT AND MODIFICATION. The parties hereto, by
mutual agreement in writing approved on behalf of Purchaser by its Board of
Directors or its officers authorized by its Board of Directors, and approved by
Seller, may amend, modify and supplement this Agreement in any respect.
10.4. NOTICES. All notices, requests, demands or other
communications required or permitted hereunder shall be sufficiently given if
delivered in person or sent by registered or certified mail, postage prepaid,
addressed:
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(a) If to Seller, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Johnston, Hinesley, Flowers & ▇▇▇▇▇▇▇, P.C.
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
(b) If to Purchaser, to:
▇▇▇▇ Bros. Transportation, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
or to such other person or address as shall be furnished in writing by any party
to the other prior to the giving of applicable notice or communication, and such
notice or communication shall be deemed to have been given when delivered in
person or five (5) business days after being so mailed.
10.5. HEADINGS. The section and paragraph headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
10.6. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
10.7. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
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10.8. ASSIGNMENT. No party hereto may assign either this
Agreement or any of his or its rights, interests, or obligations hereunder
without the prior written consent of the other party hereto.
10.9. CONSTRUCTION. Seller, on the one hand, and Purchaser, on
the other hand, have participated jointly in the negotiation and drafting of
this Agreement. In the event any ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by such parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
▇▇▇▇ BROS. TRANSPORTATION, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Chief Executive Officer
SELLER:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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