EXHIBIT 10
AGREEMENT
This Agreement (this "Agreement") dated August 21, 1998 represents the
agreement of the parties listed below to the matters described herein, subject
only to the Conditions described in Section 2(d) and 8 below:
WHEREAS, the Board of Directors of The Mayflower Corporation plc has
approved this Agreement;
WHEREAS, the Board of Directors of Metrotrans Corporation, a Georgia
corporation (the "Corporation"), has duly approved Sections 3, 4, 7, 8 and 9 of
this Agreement;
WHEREAS, the Board of Directors of the Corporation has duly approved
transactions contemplated by Sections 2 and 5 of this Agreement, solely for the
purpose of approving Mayflower becoming an "interested shareholder" as
contemplated by Section 14-2-1132(a) of the Georgia Business Corporation Code;
and
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Corporation and Mayflower (as defined below) are entering into a Loan
Agreement pursuant to which Mayflower has agreed to lend to the Corporation an
aggregate amount of $15.0 million (the "Loan Agreement").
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged by the parties hereto, the parties hereto hereby agree
as follows:
(1) PARTIES
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The parties to this Agreement are the following:
a. The Mayflower Corporation plc, a United Kingdom corporation, having its
principal offices at Mayflower House, Loudon Road, London, High
Xxxxxxx, Xxxxx XX00 0XX, Xxxxxxx and Mayflower (U.S. Holdings), Inc., a
Delaware corporation (hereinafter "Mayflower");
b. The Corporation, having its principal offices at Suite 220, 000
Xxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxxx 00000, XXX ;
c. Mr. D. Xxxxxxx Xxxxxx, a United States citizen, residing at 000
Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000, XXX (hereinafter "Xx.
Xxxxxx");
d. Ms. Xxxxx X. Xxxxx, a United States citizen, residing at 000 Xxxxxxxxx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, XXX (hereinafter "Xx. Xxxxx" and
together with Xx. Xxxxxx, the "Management Stockholders");
e. Messrs. Xxxxxxxx X. Xxxxxxx (hereinafter "Xx. Xxxxxxx") and M. Xxxx
Xxxx (hereinafter "Xx. Xxxx" and together with Xx. Xxxxxxx, the
"Selling Stockholders"), both United States citizens, residing
respectively at 000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, and 000 Xxxxx
Xxxxx, Xxxxxxxxxxxx, XX 00000, XXX.
From time to time, Messrs. Xxxxxx, Xxxxxxx and Xxxx and Xx. Xxxxx will be
referred to herein collectively as the "Shareholders"
(2) PURCHASE OF SHARES
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a. Each of the Selling Stockholders hereby agrees to sell, transfer,
convey, assign and deliver and Mayflower agrees to purchase from each
of the Selling Stockholders all of the shares of the common stock of
the Corporation (the "Corporation Common Stock") owned by each of the
Selling Stockholders (the "Shares") on the Closing Date provided in
Section 2(c) at a purchase price of $ 15.00 per Share (the "Purchase of
Shares").
b. Each of the Selling Stockholders represents and warrants to Mayflower
that:
1. Such Selling Stockholder is the record and beneficial owner of
825,200 Shares.
2. Such Selling Stockholder has sole power of disposition with respect
to the Shares owned by him.
3. The Shares and the certificates representing such Shares are now,
and the Shares and the certificates representing such Shares, except
as herein provided, at all times prior to the Closing Date will be,
held by such Selling Stockholder, free and clear of all claims,
liens, charges, security interests, proxies, pledges, charges,
equities, options, voting restrictions, rights of first refusal,
voting trusts or agreements, understandings or arrangements and any
other encumbrances of any kind or nature whatsoever (collectively
"Liens"), except liens pursuant to a Pledge Agreement involving
approximately 500,000 of the Shares of each Selling Stockholder in
favor of NationsBank, N.A., which shall be released as a condition
to the closing of the Purchase of Shares. On the Closing Date, upon
delivery of the certificates representing the Shares to Mayflower
and payment by Mayflower of the purchase price, each Selling
Stockholder will deliver to Mayflower and Mayflower will receive,
good, marketable and valid title to the Shares free and clear of any
Liens.
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4. The Selling Stockholders have the power and authority to execute
this Agreement and to perform the transactions contemplated hereby.
Subject to obtaining the release of NationsBank's Liens, no consent
or approval of any third party is necessary for the execution of
this Agreement by the Selling Stockholders and their performance of
the transactions contemplated hereby, except expiration of the
waiting period under the HSR Act. Subject to obtaining the release
of NationsBank's Liens, the execution of this Agreement by the
Selling Stockholders and their performance of the transactions
contemplated hereby do not violate or conflict with any obligations
of the Selling Stockholders to any third party.
c. The closing of the Purchase of Shares shall take place at the offices
of Xxxx Xxxxxxxx & Xxxxxx XXX, Xxxxxxx, Xxxxxxx at 10:00 A.M., Atlanta,
Georgia time within two (2) business days after the satisfaction of the
conditions set forth in Sections 2(d) and 8 hereof (the "Closing Date")
or at such other place and time as shall be mutually agreed upon by
Mayflower and the Corporation. On the Closing Date, (i) each of the
Selling Stockholders shall deliver his stock certificates to Mayflower
duly endorsed in favor of Mayflower and any other documents necessary
for Mayflower to have new share certificates issued in its name and to
effect the valid transfer of the Shares to Mayflower and (ii) Mayflower
shall pay the purchase price to each Selling Stockholder by wire
transfer of immediately available funds to the account designated by
such Selling Stockholder.
d. The respective obligation of Mayflower and each of the Selling
Stockholders to effect the Purchase of Shares is subject to the
following conditions:
1. Sections 3, 4, 7, 8 and 9 (as applicable) of this Agreement, shall
have been approved by the Board of Directors of the Corporation.
2. Any waiting period applicable to the Purchase of Shares under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended
(the "HSR Act") shall have expired or been terminated. Mayflower
shall be responsible for the filing fee payable under the HSR Act
and all reasonable cost to prepare any such filing.
3. The release by NationsBank of its Liens on the Shares.
4. No injunction or other legal restraint or prohibition prohibiting
the Purchase of Shares shall be in effect.
5. All other conditions contained in Section 8 hereof.
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e. The obligation of Mayflower to effect the Purchase of Shares is
subject to the following additional conditions:
1. The representations and warranties of the Selling Stockholders set
forth herein shall be true and correct as of the Closing Date.
2. The written resignation of the Selling Stockholders as directors of
the Corporation, effective on the close of business on the Closing
Date.
f. Each of the Selling Stockholders shall be liable for, and shall pay
when due, any and all taxes payable by the Selling Stockholders by
reason of the Purchase of Shares (as they relate to each Selling
Stockholder), or attributable to the Selling Stockholders by virtue of
the sale, transfer or delivery of the Shares hereunder. Mayflower
shall be responsible for payment of any transfer tax related to the
Purchase of Shares.
g. The Selling Stockholders shall use their best efforts to cause
NationsBank, N.A. to agree as soon as practicable to release its Liens
on the Shares of the Selling Stockholders on or before the Closing
Date. Mayflower and the Corporation shall make their respective
filings under the HSR Act as soon as practicable following execution of
this Agreement and shall reasonably cooperate with each other to effect
compliance with the HSR Act.
(3) BOARD OF DIRECTORS AND MANAGEMENT OF THE CORPORATION AND REPRESENTATIONS
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AND WARRANTIES
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a. In connection with the Purchase of Shares, the Selling Stockholders
shall submit their resignations from the Board of Directors of the
Corporation, effective the close of business on the Closing Date. The
remaining Directors and the Directors appointed by those Directors
immediately thereafter in accordance with the following provisions of
this section 3(a), other than the Mayflower nominees, shall be referred
to herein as the "Non-Mayflower Directors." The remaining Directors
shall be the "Continuing Directors." The Non-Mayflower Directors shall
convene a meeting of the Board of Directors and increase the number of
Directors from six to eight. The Non-Mayflower Directors shall fill the
four vacancies so created with three nominees whose names and
biographical information shall be submitted by Mayflower and one
nominee selected by the Non-Mayflower Directors. Each year thereafter
in connection with the Annual Meeting of Shareholders or any other
meeting of Shareholders at which directors are nominated or elected,
the Non-Mayflower Directors shall nominate five Directors and Mayflower
shall nominate three Directors to fill the Board of Directors of the
Corporation. In the event any Non-Mayflower Director ceases to serve as
a Director of the Corporation, whether as a result of his resignation,
removal or otherwise, his successor shall be named by majority vote of
the remaining Non-Mayflower Directors, to serve until the next
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annual meeting of stockholders of the Corporation, and the successor
shall thereafter be treated as a Non-Mayflower Director for all
purposes of this Agreement; provided that any successor to a Continuing
Director may be elected only upon the recommendation of such successor
by a majority of the remaining Continuing Directors. In the event any
Director nominated by Mayflower ceases to serve as a Director of the
Corporation, whether as a result of his resignation, removal or
otherwise, his successor shall be named by majority vote of the
remaining Directors who were nominated by Mayflower, to serve until the
next annual meeting of stockholders of the Corporation. The size of the
Board of Directors shall not be expanded without approval of the Non-
Mayflower Directors and Mayflower Directors. The Bylaws of the
Corporation shall be amended to provide for the constituency of the
Board of Directors as herein provided, which bylaw provision may be
changed only by vote of a majority of the Directors, including a
majority of the Non-Mayflower Directors, the consent of which will not
be unreasonably withheld.
b. Xx. Xxxxxx shall continue to serve as Chairman and Chief Executive
Officer of the Corporation, for the period of and subject to the terms
of his employment agreement with the Corporation, as amended as of the
Closing Date. The foregoing is not intended to, and shall not be
construed to, change any of the obligations under the employment
agreement or create any obligations of Mayflower with respect to the
employment agreement. As soon as practicable after the date hereof but
in any event no later than the Closing Date, Mayflower will enter into
a separate agreement with Xx. Xxxxxx and Xx. Xxxxx, which will contain
a non-competition provision effective following exercise of the Put or
the Call set forth in Section 5 hereof in consideration for the payment
of $1,500,000.00 to Xx. Xxxxxx and $500,000.00 for Xx. Xxxxx. After the
Put described in Section (5) below has been exercised by Xx. Xxxxxx or
Xx. Xxxxx, as the case may be, and the consideration for the Put option
paid, such agreement shall restrict Xx. Xxxxxx and Xx. Xxxxx from
engaging in the activities specified in paragraph 6 of their respective
employment agreements for a period of five years from the date of
exercise of the Put or Call, as the case may be, and shall otherwise be
in a form reasonably satisfactory to Mayflower, Xx. Xxxxxx and Xx.
Xxxxx. The cash consideration payable under such agreements shall be
payable in three (3) equal annual payments beginning on the date the
Put is exercised.
c. Mayflower, Xx. Xxxxxx and Xx. Xxxxx each agree to vote their shares at
any meeting of the stockholders of the Corporation or in any written
consent in lieu thereof to maintain the composition and membership of
the Board of Directors of the Corporation as provided in section 3(a)
above.
d. Mayflower represents that neither it nor any of its directors, officers
or affiliates either individually or as a Group (as defined in Section
13(d) of the
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Securities Exchange Act of 1934, as amended) own, of record or
beneficially, or have the right to purchase any shares of the
Corporation Common Stock, other than pursuant to this Agreement.
Mayflower shall vote its shares of Corporation Common Stock in
accordance with the vote of the majority of the Board of Directors with
respect to all matters presented to a vote of the shareholders;
provided, however, Mayflower may vote its shares of Corporation Common
Stock as it shall determine on any of the following matters, should any
such matter be presented to a vote of shareholders:
(i) a proposal to transfer, lease or sell substantially all of the
assets of the corporation;
(ii) a merger, combination or amalgamation of the corporation with any
unaffiliated entity;
(iii) a recapitalization of the corporation, including specifically the
creation of a new class of shares of the corporation;
(iv) an increase in the authorized stock of the corporation;
(v) any stock splits or stock dividends;
(vi) any change in the independent auditors of the corporation.
(vii) any proposal to the shareholders, which would result in the
dissolution and/or liquidation of the corporation.
Neither Mayflower nor any affiliate of Mayflower shall call a meeting of
the shareholders of the Corporation for the purpose of submitting a
proposal to the shareholders to accomplish any of the matters listed in
(i) through (vii) above. Neither Mayflower nor any affiliate of
Mayflower will call, attempt to call or solicit consents to call a
special meeting of shareholders of the Corporation. Neither Mayflower
nor any affiliate of Mayflower shall solicit the vote or consent of any
stockholder of the Corporation for any purpose other than has been
approved by a majority vote of the Board of Directors of the Corporation
or that is inconsistent with provisions of this Agreement.
e. The rights and obligations of Mayflower under this Section 3 shall
terminate forty-five (45) days after results of operations are published
by the Corporation for the period ended on December 31, 2002, on the
date that the "Put" contained in Section 5 hereof is consummated by Xx.
Xxxxxx, or the Call is exercised as to Xx. Xxxxxx as a result of his
termination from employment with the Company, whichever event shall
first occur.
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f. Upon the acquisition of Xx. Xxxxxx'x shares of Corporation Common Stock
by Mayflower, whether as a result of the Put or Call described in
Paragraph (5) below or otherwise, Xx. Xxxxxx and the other Non-Mayflower
Directors shall tender their resignations effective immediately or upon
acceptance by Mayflower.
g. The Corporation's dividend policy will not be changed without
concurrence of the Mayflower Directors, which concurrence will not be
unreasonably withheld.
h. Representations and Warranties of Stockholders. The Management
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Stockholders hereby represent and warrant to Mayflower as follows:
1. Organization; Authorization; Validity of Agreement. Each
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Management Stockholder has the legal capacity to execute and deliver this
Agreement and to consummate the transactions contemplated by this Agreement.
This Agreement has been duly executed and delivered by such Management
Stockholder and constitutes a valid and binding obligation of such Management
Stockholder enforceable against such Management Stockholder in accordance with
its terms.
2. Consents and Approvals; No Violations. The execution and delivery
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of this Agreement does not and the performance of this Agreement by such
Management Stockholder will not (a) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) or result in the creation of any Lien on any
property or assets of such Management Stockholder under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, lease, permit, franchise,
agreement or other instrument or obligation of any kind to which such Management
Stockholder is a party or by which such Management Stockholder or any of its
properties or assets is bound or affected or (b) conflict with or violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to such Management Stockholder or any of its properties or assets.
3. Ownership of Shares.
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Except for the rights accruing to a brokerage house with regard to 51,000
shares of Corporation Common Stock held by Xx. Xxxxx in a margin account (the
"Xxxxx Margin Shares"),
(a) Such Management Stockholder is the record and beneficial owner of
that number of shares of Corporation Common Stock set forth opposite such
Management Stockholder's name on Exhibit A attached hereto (the "Existing
Shares," and together with any other shares of Corporation Common Stock
subsequently acquired by such Management Stockholder in compliance with
this Agreement, the "Management Shares").
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(b) On the date hereof, the Existing Shares constitute all of the
outstanding shares of Corporation Common Stock owned of record and/or
beneficially by such Management Stockholder and all Stock Options held by
such Management Stockholder.
(c) Such Management Stockholder has sole power of disposition with
respect to all of the Existing Shares owned by such Management Stockholder
and sole voting power with respect to the matters set forth herein and sole
power to demand dissenter's or appraisal rights, in each case with respect
to all of the Existing Shares owned by it with no restrictions on such
rights, subject to applicable federal and state securities laws and the
terms of this Agreement.
4. No Encumbrances. Except for the Xxxxx Margin Shares, the Existing
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Shares and the certificates representing such shares are now, and the
Existing Shares and the certificates representing such Existing Shares at
all times during the term hereof will be, held by such Management
Stockholder, free and clear of all Liens. On the Put/Call Closing Date (as
defined herein), upon delivery of the certificates representing the
Management Shares to Mayflower, and payment by Mayflower of the purchase
price, the Management Stockholders will deliver to Mayflower and Mayflower
will receive, good, marketable and valid title to the Management Shares,
free and clear of any Liens.
i. Representations and Warranties of Mayflower. Mayflower hereby
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represents and warrants to the Stockholders as follows:
1. Organization; Authorization; Validity of Agreement. Mayflower is a
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corporation duly organized, validly existing and in good standing under the laws
of Delaware or the United Kingdom, as the case may be, and has the corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement by
Mayflower and the consummation by Mayflower of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Mayflower and no other corporate proceedings on the part of Mayflower are
necessary to authorize this Agreement or any of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Mayflower and
constitutes a valid and binding obligation of Mayflower enforceable against
Mayflower in accordance with its terms.
2. Consents and Approvals; No Violations. The execution and delivery
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of this Agreement do not and the performance of this Agreement by Mayflower will
not (a) conflict with, violate or result in any breach of the certificate of
incorporation or by-laws of Mayflower, (b) result in a violation or breach of,
or constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) or result in the creation of any Lien on any
property or assets of Mayflower under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, lease, permit, franchise, agreement or other
instrument or obligation of any kind to which Mayflower is a party or by which
Mayflower or any of its properties or assets is bound or affected or (c)
conflict with or violate any order, writ, injunction, decree, judgment, statute,
rule or regulation applicable to
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Mayflower or any of its properties or assets. Except as provided in the
Agreement, no consent, approval, order or authorization of, or registration,
declaration or filing with, or notice to, any state, federal or foreign public
body or authority is required by or with respect to Mayflower in connection with
the execution and delivery of this Agreement by Mayflower or the consummation by
Mayflower of the transactions contemplated hereby.
(4) MAYFLOWER LOAN
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a. On the date hereof, Mayflower and the Corporation shall enter into a
mutually acceptable Loan Agreement providing for Mayflower or an
affiliate of Mayflower to lend up to US $15 Million Dollars (the
"Loan") to the Corporation for a term of five years, with principal due
at the end of the term. The Loan will be subordinated to the
Corporation's indebtedness to NationsBank pursuant to the terms of the
Credit Agreement in effect between the Corporation and NationsBank (the
"Credit Agreement"). The Loan will bear interest, payable quarterly on
the outstanding principal balance, at a rate of 0.5% above the rate
paid by the Corporation to NationsBank pursuant to the Credit
Agreement. The proceeds of the Loan shall be used to provide working
capital and to fund capital expenditures pursuant to a business plan
approved by the Board of Directors of the Corporation. The Loan
Agreement shall provide for a system of cash calls by which the
Corporation's management will be able to draw down the Loan. The Loan
shall be evidenced by a promissory note in favor of Mayflower or its
affiliate.
b. If Xx. Xxxxxx exercises his right to require Mayflower to purchase his
Shares pursuant to Section 5 below, or Mayflower exercises the call
pursuant to Section 5, Mayflower or its affiliate may thereafter have
the right to convert the unpaid principal and interest of the Loan into
common stock of the Corporation. The price per share for such
conversion shall be the average of the closing bid and asked prices for
the Corporation's common stock reported on the Nasdaq National Market
for the twenty (20) trading days immediately prior to the date of
Mayflower's or its affiliate's exercise of its conversion rights or the
appraised fair value determined by an independent appraiser if the
Common Stock is not traded on a trading market.
(5) PUT RIGHTS
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a. Xx. Xxxxxx and Xx. Xxxxx shall have the right, commencing December 31,
2000 and expiring forty-five (45) days after results of operations are
published by the Corporation for the period ending December 31, 2002
(the "Option Term"), to tender all, but not less than all, of either of
their Management Shares (the "Put") to Mayflower in accordance with the
provisions set forth in this Agreement. During the Option Term, the Put
may be exercised at the election of Xx. Xxxxxx or Xx. Xxxxx by giving
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notice of exercise to Mayflower at any time that is at least 20 days
but not more than 45 days after the Corporation has made a public
announcement of its quarterly or annual earnings for the fiscal quarter
immediately preceding such exercise. If the Put is exercised, Mayflower
shall be required to purchase the Management Shares at the average of
the closing bid and asked prices reported on the Nasdaq National Market
for the twenty (20) trading days immediately prior to the date the
notice of exercise is given, provided, however, that the purchase price
shall not exceed US $40.00 per Management Share and provided further
that the purchase price shall be no less than $10.00 per Management
Share for the period from December 31, 2000 to December 31, 2001; no
less than $12.50 per Management Share for the period from January 1,
2002 to September 30, 2002; and, not less than $15.00 per Management
Share for the period from October 1, 2002 to December 31, 2002.
Mayflower shall have the option to pay the purchase price in cash or,
with the consent of Xx. Xxxxxx or Xx. Xxxxx, in Mayflower publicly
traded stock having a value equivalent to the purchase price.
b. Notwithstanding the foregoing, the Put may be exercised at any time
prior to the expiration of the Option Term by Xx. Xxxxxx and/or Xx.
Xxxxx, or by their legal representative, in the event that his or her
employment with the Corporation should terminate because of death or
disability, as defined in Xx. Xxxxxx'x employment agreement. In any
such event, the purchase price for the Put shall be $15.00 per
Management Share or the average of the closing bid and asked prices
reported on the Nasdaq National Market (or other primary exchange or
inter-dealer quotation system on which the Corporation Common Stock is
then listed or traded) the twenty (20) trading days immediately prior
to the date of exercise of the Put, whichever amount is higher. Xx.
Xxxxx shall have the right, prior to the expiration of the Option Term,
to exercise the Put at any time on or after the date of death or
disability of Xx. Xxxxxx.
c. In the event that the Option Term expires without Xx. Xxxxxx and Xx.
Xxxxx, or either of them, having exercised the Put, or Xx. Xxxxxx or
Xx. Xxxxx voluntarily terminates their employment with the Corporation,
or a Management Stockholder's employment with the Corporation is
terminated for "Cause" (as defined below), Mayflower shall have the
right to purchase (the "Call"), at any time prior to December 31, 2004,
all of the Management Shares owned by each of Xx. Xxxxxx and Xx. Xxxxx
at a purchase price of US $15.00 per Management Share, in accordance
with the provisions set forth in this Agreement. The Call shall be
exercised by written notice from Mayflower, accompanied by a tender of
the aggregate purchase price. Xx. Xxxxxx and Xx. Xxxxx shall
immediately deliver all of their share certificates duly endorsed for
transfer to Mayflower. For purposes of this subsection, termination of
employment for "Cause" shall mean termination as a result of Xx. Xxxxxx
or Xx. Xxxxx, as the case may be, being convicted of, or the subject of
an indictment by a governmental authority within the United States for,
a felony.
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d. Transfers by Operation of Law. In the event that prior to the
-----------------------------
expiration of the Option Term a Management Stockholder (i) files a
voluntary petition under any bankruptcy or insolvency law or a petition
for the appointment of a receiver or makes an assignment for the
benefit of creditors, or (ii) is subjected involuntarily to such a
petition or assignment or to an attachment or other legal or equitable
interest with respect to its Existing Shares, and such involuntary
petition or assignment or attachment is not discharged within 30 days
after its date, or (iii) is subject to a transfer of Existing Shares by
operation of law, Mayflower shall have the right, at any time from the
date of such event to the date 60 days after the date the Corporation
receives written notice from the Management Stockholder of such event,
to elect to purchase all of the Management Shares which are owned by
said Management Stockholder, at the higher of the prices provided in
Sections 5(a) and 5(c) hereof in accordance with the terms provided in
this Agreement.
e. Transfers in Violation of Agreement. If any transfer of Management
-----------------------------------
Shares is made or attempted contrary to the provisions of this
Agreement, Mayflower shall have the right to purchase such Management
Shares from the owner thereof or his transferee at any time before or
after the transfer, at the lower of the prices provided in Sections
5(a) or 5(c) hereof. In any such case, if any Management Stockholder
whose Management Shares are purchased by Mayflower pursuant to the
provisions of this Agreement fails to tender certificates for such
Management Shares for transfer to Mayflower as required by Section 5 of
this Agreement, Mayflower may deposit the purchase price for such
Management Shares with any bank or trust company doing business within
50 miles of the Corporation's principal office, for the account of such
Management Stockholder, to be held by such bank or trust company until
withdrawn by such Management Stockholder. Upon such deposit by
Mayflower of such amount and upon notice to the Management Stockholder
who was required to sell the Management Shares to be sold pursuant to
this Agreement shall at such time be deemed to have been sold,
assigned, transferred and conveyed to Mayflower, such Management
Stockholder shall have no further rights thereto and the Corporation
shall record such transfer in its stock transfer book. In addition to
the foregoing remedy and any other legal or equitable remedies which it
may have, Mayflower may enforce its rights by actions for specific
performance, for judgment for specific acts or for vesting of title (
in each case to the extent permitted by law), and may refuse to
recognize any transferee of such Management Shares as one of its
stockholders for any purpose, including without limitation for purposes
of dividend and voting rights, until all applicable provisions of this
Agreement have been complied with.
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f. Stop Transfer. Each Management Stockholder agrees with and covenants to
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Mayflower that it shall not request that the Corporation register the
transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of the Management Shares other than the Xxxxx
Margin Shares. Within two Business Days of the date hereof and the
receipt of any Management Shares, the Corporation will direct the
Corporation's transfer agent to place stop transfer order instructions
with respect to the Management Shares and will notify such transfer
agent that this Agreement places restrictions on the Management Shares.
g. Payment of Purchase Price. The purchase price for any Shares being
-------------------------
purchased and sold pursuant to the provisions of Sections 5 and 6 of
this Agreement shall be paid at the Put/Call Closing (as hereinafter
defined) of the purchase and sale of such Management Shares.
h. Closing. The closing (the "Put/Call Closing") of the purchase and sale
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of any Management Shares pursuant to Sections 5 or 6 hereof shall take
place at the offices of Long Xxxxxxxx & Xxxxxx LLP in Atlanta, Georgia
at 10:00 a.m. (Georgia time) on the fifth (5th) business day following
the date the Put Notice or the Call Notice is given or such other time
as may be agreed upon by the Management Stockholders and Mayflower. At
the Closing, the certificate(s) representing the Management Shares
being purchased and sold pursuant hereto shall be delivered by or on
behalf of the Management Stockholder, in proper form for transfer,
accompanied by stock powers duly executed in blank (and with all
requisite stock transfer stamps and such supporting instruments, if
any, as then may be required to effect transfer of registration)
against delivery of a check payable to the Management Stockholder in
the amount of the purchase price or delivery of certificates
representing shares of Mayflower stock deliverable in payment of the
purchase price, as applicable.
i. Refusal to Deliver Certificates. If the Management Stockholder refuses
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to deliver the certificates representing any of its Management Shares
to be sold hereunder in connection with the exercise of the Put,
Mayflower shall not be obligated to proceed with the Put/Call Closing.
If the Management Stockholder refuses to deliver the certificates
representing any of its Management Shares to be sold hereunder in
connection with the exercise of the Call, Mayflower may, in addition to
all other remedies it may have, deposit the purchase price for such
Management Shares with any bank or trust company doing business within
50 miles of Mayflower's principal office, for the account of such
Management Stockholder, to be held by such bank or trust company until
withdrawn by such Management Stockholder. Upon such deposit by
Mayflower of such amount and upon notice to the Management Stockholder
who was required to sell, the Management Shares to be sold pursuant to
this Agreement shall at such time be deemed to have been sold,
assigned, transferred and conveyed to Mayflower, such Management
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Stockholder shall have no further rights thereto and the Corporation
shall record such transfer in its stock transfer book. In addition to
the foregoing remedy and any other legal or equitable remedies which it
may have, Mayflower may enforce its rights by actions for specific
performance, for judgment for specific acts or for vesting of title (
in each case to the extent permitted by law), and may refuse to
recognize the Management Stockholder who was required to sell his or
her Management Shares as one of its stockholders for any purpose,
including without limitation for purposes of dividend and voting
rights.
j. Legends. An original of this Agreement shall be kept in the files of
-------
the Corporation at its principal office, and reference to this
Agreement shall be endorsed on all stock certificates of the
Corporation for all Management Shares held by the Stockholders now or
hereafter issued, by writing or stamping thereon the following (or a
similar) legend, provided, however, that no legend shall be placed on
the Xxxxx Margin Shares:
"The transfer, sale, assignment, mortgage, hypothecation, pledge,
creation of a security interest in or lien on, encumbrance of, gift of,
trust (voting or other) of, or other disposition of the securities
represented by this certificate is restricted by an Agreement dated
August ___, 1998, a copy of which may be examined at the principal
office of the Corporation.
THE FOLLOWING SHALL BE PLACED ON ALL MANAGEMENT SHARES THAT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.] The securities
represented by this certificate have not been registered under the
Securities Act of 1933 and may not be disposed or of encumbered without
such registration or an opinion of counsel satisfactory to the
Corporation that such registration is not required."
(6) FURTHER PURCHASE OF SHARES BY MAYFLOWER
---------------------------------------
Until such time as Xx. Xxxxxx shall have exercised his Put pursuant to
Section 5 above, Mayflower shall have exercised its Call with respect to Xx.
Xxxxxx'x shares pursuant to Section 5 above or the Option Term shall have
expired, whichever shall occur first, (i) Mayflower and its directors, officers
and affiliates, individually and as a group, directly or through any affiliate,
agree not to sell or purchase, contract to sell or purchase, obtain a right to
purchase or sell or otherwise acquire or sell any shares of common stock of the
Corporation and (ii) each of the Management Stockholders hereby covenants and
agrees that such Management Stockholder shall not (A) except with respect to the
Xxxxx Margin Shares, offer for sale, sell, transfer (including by way of gift),
tender, pledge, encumber or otherwise subject to a Lien, assign or otherwise
dispose of, enforce or permit the execution of the provisions of any redemption
agreement with the Corporation or enter into any contract, option or other
arrangement or understanding with respect
13
to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, or other disposition of, or exercise any discretionary powers to
distribute (collectively, "Transfer"), directly or indirectly, any or all of the
Management Shares owned by him or her or any interest therein to any Person, (B)
grant any proxies or powers of attorney with respect to any Management Shares,
deposit any Management Shares into a voting trust or enter into a voting
agreement with respect to any Management Shares; or (C) take any action that
would make any representation, warranty or covenant of any Management
Stockholder contained in this Agreement untrue or incorrect or have the effect
of preventing or disabling any Management Stockholder from performing its
obligations under this Agreement. The foregoing shall not apply to the exercise
by Xx. Xxxxxx or Xx. Xxxxx of options to purchase Shares granted to either of
them by the Corporation. Thereafter, Mayflower may offer to acquire all of the
remaining shares of common stock of the Corporation, provided, however, that in
the event that Mayflower shall offer to acquire all of the publicly traded
shares of common stock of the Corporation prior to forty-five (45) days after
publication of results of operations of the Corporation for the year ended
December 31, 2001, Mayflower shall offer a price of not less than US $15.00 per
share, subject to receipt of a fairness opinion satisfactory to the Board of
Directors of the Corporation.
(7) TECHNICAL SERVICES
------------------
After the closing of the Purchase of Shares, Mayflower will provide
various technical services to the Corporation, at the request of Xx. Xxxxxx.
These shall include, but not be limited to, Mayflower arranging for its
affiliated company, Xxxxxx Xxxxxxxxx, to second Xx. Xxxxx XxXxxxxxx or such
other person(s) designated by Mayflower and approved by the Corporation (which
approval may not be unreasonably withheld) on behalf of the Corporation for a
period of up to two years. Mayflower and the Corporation will also select
various specialized industry consultants, satisfactory to both Mayflower and the
Corporation, which will be retained by the Corporation. The Corporation will pay
the base salary while Xx. XxXxxxxxx or such other person(s) are assigned to the
Corporation not to exceed US $150,000 per year. The Corporation will also pay
the fees of any consultants which may be retained to provide technical services
to the Corporation.
(8) CONDITIONS TO THIS AGREEMENT
----------------------------
This Agreement is intended to commit the parties to the terms and
conditions applicable to such party, as contained herein subject to the
satisfaction of the following conditions:
a. Mayflower Loan -- The Loan Agreement shall have been duly executed
--------------
and delivered by the parties thereto with written consent and approval
of NationsBank.
(9) ADDITIONAL PROVISIONS
---------------------
a. Fee Agreement -- The Corporation will receive a fee if the Corporation
-------------
through Xx. Xxxxxx or other executive of the Corporation introduces to
Mayflower, or Xx. Xxxxxx or other executive of the Corporation provides
material assistance to Mayflower at Mayflower's request in connection
with, an entity for the purpose of a transaction which results in
Mayflower
14
acquiring a company or an interest in a company or substantially all of
the assets of a company in the business of manufacturing and assembling
coaches, buses, chassis or the principle components thereof. The
Corporation will receive a commission based on the Xxxxxx formula (5%
of the first one million of the purchase consideration; 4% of the next
one million; 3% of the next one million; 2% of the next one million; 1%
of any consideration in excess of US $4 million). The fee will not be
earned in an acquisition made by the Corporation.
b. Exclusivity Agreement -- Notwithstanding any provision contained in the
---------------------
Exclusivity Agreement dated as of July 1, 1998 between the parties
hereto to the contrary (the "Exclusivity Agreement") the Exclusivity
Period (as defined in the Exclusivity Agreement) and the termination
date provided in Section 6 thereof, shall each be extended to September
30, 1998 or the Closing Date, whichever occurs first.
c. Confidentiality Agreement -- The Confidentiality Agreement between
-------------------------
Mayflower and the Corporation, dated as of June 23, 1998, shall remain
in effect in accordance with its terms.
d. Public Announcement -- No party shall make a public announcement of nor
-------------------
disclose the existence or terms of this Agreement until all conditions
of Sections 2(d) and 8 herein have been fulfilled and only then with
the prior written consent of Mayflower and the Corporation. In the
event that either Mayflower or the Corporation is required to disclose
the existence and terms of this Agreement by applicable law, rules or
regulations, any disclosure will be subject to prior review of the
Corporation and Mayflower.
e. Cooperation -- Each of the parties hereto agrees to use its reasonable
-----------
best efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable under applicable laws
and regulations to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
f. Terms and Termination -- This Agreement shall terminate on September
---------------------
30, 1998 if the Closing Date has not occurred.
g. Assignment -- Neither this Agreement nor any of the rights, interests
----------
or obligations hereunder shall be assigned by any of the parties hereto
(whether by operation of law or otherwise) without prior written
consent of the other parties, provided that Mayflower may assign, at
its sole discretion, its rights and obligations hereunder in whole to
any direct or indirect wholly owned subsidiary of Mayflower, but no
such assignment shall relieve Mayflower of its obligations hereunder if
such assignee does not
15
perform such obligations. Subject to the foregoing, this Agreement will
be binding upon, inure to the benefit of and be enforceable by, the
parties and their respective successors and permitted assigns, and the
provisions of this Agreement are not intended to confer any rights or
remedies hereunder upon any person other than the parties hereto and
their respective successors and permitted assigns.
h. Amendments -- This agreement may not be modified, amended, altered or
----------
supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
i. Notices -- All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand
delivery, telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service, such as
Federal Express, providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the following
addresses:
(i) If to Mayflower, to:
Xxxxxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxx
Xxxx Xxxxxxx, Xxxxx XX00 0XX
Xxxxxxx
Telephone: 011 -- 44 -- 1494 450 145
Telecopier: 011 -- 44 -- 1494 450 607
Attention: Xx. Xxxxx Xxxxx
With a copy to:
Xxxxxxxx Xxxxxxxxx, Esq.
00 Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Telephone: 000.000.0000
Telecopier: 508.325.5157
And to:
16
Xxxxxx, Xxxx & Xxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: 000.000.0000
Telecopier: 212.351.4035
Attn: Xxxxxx X. Xxxxxxx, Esq.
(ii). If to the Corporation, to:
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxx, Xxxxxxx 00000
Telephone: 000.000.0000
Telecopier: 770.632.0414
Attn: Mr. D. Xxxxxxx Xxxxxx
With a copy to:
Long Xxxxxxxx Xxxxxx LLP
One Peachtree Center
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
XXX
Telephone: 000.000.0000
Telecopier: 404.527.4198
Attn: Xxxxxxx X. Xxxxx, Esq.
17
(iii) If to the Stockholders, to:
Xxxxxxxx X. Xxxxxxx
000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
XXX
Telephone: 000.000.0000
Telecopier: 770.761.0322
With a copy to:
M. Xxxx Xxxx
000 Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
XXX
Telephone: 000.000.0000
Telecopier: 770.460.8076
Or to such other address as the person to whom notice is given may
have previously furnished to the others in writing in the manner set
forth above.
j. Governing Law -- This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Georgia, without giving effect
to the principles of conflicts of laws thereof.
k. Enforcement -- Each of the parties hereto agrees, recognizes and
-----------
acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain
damages for which it would not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that in the
event of such breach, the aggrieved party shall be entitled to the
remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy
to which it may be entitled, at law or in equity.
l. Costs and Expenses -- Mayflower shall pay prior to the Closing Date the
------------------
reasonable fees, costs and expenses of the Corporation from May 31,
1998 to the Closing Date in any manner related to Mayflower as more
specifically set forth in a letter to Xx. Xxxxx dated August 3, 1998.
In no event shall Mayflower be obligated to pay more than $483,000
pursuant to this Section 9(1).
18
m. Counterparts -- This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same Agreement.
n. Entire Agreement. This Agreement constitutes the entire agreement among
----------------
the parties with respect to the subject matter hereof and supersedes
all other prior and contemporaneous agreements and understandings, both
written and oral, among the parties with respect to the subject matter
hereof.
o. Severability. Whenever possible, each provision or portion of any
------------
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction to the maximum extent
permitted by law in accordance with the intention of the parties.
p. Definitions. For purposes of this Agreement:
-----------
(a) "beneficially own" or "beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Exchange Act"), including pursuant to
any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by
the same holder, securities beneficially owned by a Person shall
include securities beneficially owned by all other Persons with
whom such Person would constitute a "group" as described in
Section 13(d)(3) of the Exchange Act.
(b) "Person" shall mean an individual, corporation, limited liability
Corporation, partnership, joint venture, association, trust,
unincorporated organization or other entity.
(c) In the event of a stock dividend or distribution, or any change in
the Corporation Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include
the Shares as well as all such stock dividends and distributions
and any shares into which or for which any or all of the Shares
may be changed or exchanged.
19
(d) "Business Day" shall mean a day on which banks are not required or
authorized to be closed in the City of Atlanta, Georgia.
SIGNATURES ON NEXT PAGE
20
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first written above.
The Mayflower Corporation plc
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Chairman Director
Mayflower (U.S. Holdings), Inc.
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
Metrotrans Corporation
By: /s/ D.Xxxxxxx Xxxxxx
----------------------------------
D. Xxxxxxx Xxxxxx
Chairman and Chief Executive Officer
/s/ D. Xxxxxxx Xxxxxx
-------------------------------------
D. Xxxxxxx Xxxxxx
/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxxx
/s/ M. Xxxx Xxxx
-------------------------------------
M. Xxxx Xxxx
21
