FIRST AMENDMENT TO THE SECURITIES HOLDERS AGREEMENT
Exhibit 4.8
THIS IS AN AMENDMENT, dated as of December 1, 2006, (the “Amendment”) by and among New Century
Transportation, Inc. a Delaware corporation, NCT Acquisition LLC, a Delaware limited liability
corporation and the Management Investors listed on the signature pages hereto to the Securities
Holders Agreement, dated as of June 23, 2006 (the “Agreement”), by and among New Century
Transportation, Inc., NCT Acquisition LLC and the Management Investors. Capitalized terms used
herein but not defined shall have the meanings ascribed to them in the Agreement.
WHEREAS, pursuant to Section 5.1 of the Agreement, amendments to or modifications of the
Agreement must be set forth in a writing executed by the Company, the Required Holders and
Management Investors holding a majority of the shares of Common Stock held by all Management
Investors; and
WHEREAS, the signatories hereto constitute the Company, the Required Holders and Management
Investors holding a majority of the shares of Common Stock held by all Management Investors.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agreement
shall be amended as follows:
(a) Section 4.1(a) of the Agreement shall be deleted and shall be replaced with the following:
(a) “Cause”, when used in connection with the termination of a
Management Investor’s employment with the Company or one of its Subsidiaries, shall
have the meaning ascribed to the term “Cause” in such Management Investor’s
employment agreement with the Company or one of its Subsidiaries, if any. If
“Cause” is not defined in such Management Investor’s employment agreement, or if
such Management Investor is not a party to an employment agreement between itself
and the Company or one of its Subsidiaries, the term shall mean (i) an indictment of
such Management Investor in connection with a crime involving moral turpitude or any
felony, which materially adversely affects the Company or the ability of such
Management Investor to satisfy all of his duties to the Company; (ii) a conviction
of, or a pleading of no-contest by, such Management Investor in connection with any
felony; (iii) such Management Investor’s dishonesty, fraud, unethical or illegal
act, misappropriation or embezzlement which does (or would reasonably be likely to)
materially damage the Company’s reputation or the Company; (iv) material breach of
such Management Investor’s fiduciary duties to the Company, and such Management
Investor has failed to cure such breach within twenty (20) days after written
request by the Company Board to do so; (v) such Management Investor’s material
failure to perform his job duties, and such Management
Investor has failed to cure
such failure to perform within twenty (20) days after written request by the
Company Board to do so; (vi) willful or deliberate material violations of such
Management Investor’s obligations to the Company, and such Management Investor has
failed to cure such violation(s) within twenty (20) days after written request by
the Company Board to do so; or (vii) material breach of any of the terms or
conditions of any employment agreement with the Company, and such Management
Investor has failed to cure such breach within twenty (20) days after written
request by the Company Board to do so.
(b) Section 4.1(b) of the Agreement shall be deleted and shall be replaced with the following:
(b) “Good Reason”, shall have the meaning ascribed to the term “Good
Reason” or “Justifiable Termination”, or to a term representing any substantially
similar concept, in such Management Investor’s employment agreement with the Company
or one of its Subsidiaries, if any. If either “Good Reason” or “Justifiable
Termination” is not defined, or if a term representing a substantially similar
concept is not set forth in such Management Investor’s employment agreement, or if
such Management Investor is not a party to an employment agreement between itself
and the Company or one of its Subsidiaries, the term shall, mean (i) a material
diminution of such Management Investor’s employment responsibilities or other
responsibilities to the Company pursuant to any employment agreement with the
Company; (ii) a decrease in such Management Investor’s base salary; (iii) relocation
of such Management Investor’s principal place of employment by more than 10 miles
from its current location; or (iv) any material violation by the Company of any
employment agreement with such Management Investor; provided that, with respect to
(i), (ii) and (iv), the Management Investor must have given a written notice to the
Company Board setting forth the specific nature of the alleged material diminution,
decrease or material violation within twenty (20) days of such alleged material
diminution, decrease or material violation, and the Company must have not cured such
alleged material diminution, decrease or material violation within twenty (20) days
following receipt of such written notice by such Management Investor to the Company.
This Amendment may be executed in separate counterparts each of which shall be an original and
all of which taken together shall constitute one and the same agreement.
* * * * *
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first above
written.
| NEW CENTURY TRANSPORTATION, INC. |
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| By: | /s/ Xxxxx Xxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
| REQUIRED HOLDER: NCT ACQUISITION LLC |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Authorized Representative | |||
| MANAGEMENT INVESTORS: |
||||
| /s/ Xxxxx Xxxxxxxxxxxx | ||||
| Name: | Xxxxx Xxxxxxxxxxxx | |||
| /s/ Xxxxx X. Xxxxxxxxxxx | ||||
| Name: | Xxxxx X. Xxxxxxxxxxx | |||
| /s/ Xxxxx Xxxxxxxx | ||||
| Name: | Xxxxx Xxxxxxxx | |||
| /s/ Xxxxxx X. Xxxxxxx Xx. | ||||
| Name: | Xxxxxx X. Xxxxxxx Xx. | |||
