STOCKHOLDERS' AGREEMENT
Exhibit
99(d)iii
STOCKHOLDERS'
AGREEMENT
STOCKHOLDERS'
AGREEMENT ("Agreement"),
dated
as of [________], 2006, among Central Freight Lines, Inc., a Nevada corporation
(the "Company"),
Xxxxx
Xxxxx ("Xxxxx"),
each
of the individuals and entities listed on Schedule A to this Agreement (each
a
"Stockholder"
and
collectively, the "Stockholders")
and
each of the individuals and entities listed on Schedule B of this Agreement
(each, an "Optionholder"
and
collectively, the "Optionholders").
R
E C I T A L S
WHEREAS,
Moyes is the owner beneficially and of record of shares of Common Stock,
par
value $.001 per share, of the Company (the "Common
Stock");
and
WHEREAS,
the Stockholders are and will be the owners beneficially and of record of
shares
of Common Stock;
WHEREAS,
the Optionholders, upon the exercise of their options to acquire shares of
Common Stock, will become Stockholders and subject to the terms of this
Agreement applicable to Stockholders; and
WHEREAS,
the Stockholders, Optionholders, Moyes and the Company desire to enter into
this
Agreement for the purpose of regulating certain aspects of the relationship
of
the Stockholders, Optionholders and Moyes with respect to the
Company.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the parties hereby agree as follows:
1. Restrictions
on Liens
During
the term of this Agreement, no Stockholder shall create, incur or assume
or
suffer to exist any lien, security interest, pledge, claim, option, right
of
first refusal or first offer or other encumbrance ("Liens")
on his
or its respective shares of Common Stock other than Liens created pursuant
to
the terms of this Agreement. Any attempt to place a Lien upon shares of Common
Stock in violation of this Agreement shall be null and void and neither the
Company nor any transfer agent shall give any effect to such attempted
encumbrance in its books and records.
2. Restrictions
on Sale and Transfer of Common Stock by the Stockholders
(a) During
the term of this Agreement, no Stockholder shall directly or indirectly sell,
assign, hypothecate, bequeath, transfer or otherwise dispose or convey a
legal
or beneficial interest in ("Transfer")
any of
such Stockholder's shares of Common Stock without first granting to Moyes
a
right of first refusal to acquire such Stockholder's shares of Common Stock
as
set forth in Section 5 below without the express written consent of Moyes,
except as otherwise provided by this Agreement. Notwithstanding the foregoing,
a
Stockholder may, without the consent of Moyes, Transfer all or part of such
Stockholder's Common Stock to a Permitted Transferee (as defined in Section
2(b)), provided
that
such Permitted Transferee in each such case agrees in a writing, satisfactory
to
the Company and Moyes, to be bound by all of the terms and conditions of
this
Agreement as if named as a "Stockholder" hereunder. The Company shall not
transfer upon its books and records any shares of Common Stock to the extent
prohibited by this Agreement and any purported Transfer in violation hereof
shall be null and void and of no effect.
(b) For
purposes of this Agreement, a "Permitted
Transferee"
of any
Stockholder, to the extent applicable, shall be (i) the Company; (ii) any
trust
of which such Stockholder is the trustee and the sole beneficiaries of which
are
one or more of such Stockholder, such Stockholder's spouse, children or
step-children; (iii) any limited partnership, a general partner of which
is the
Stockholder and the limited partners of which are one or more of such
Stockholder and such Stockholder's spouse, children or step-children; (iv)
any
limited liability company in which the Stockholder holds a majority of the
membership interests and is the manager or the managing member; or (v) in
the
case of any Stockholder which is not an individual, a wholly-owned affiliate
of
such Stockholder.
As
used
in this Agreement, "affiliate"
means,
with respect to any individual, entity or group, any other individual, entity
or
group that controls, is controlled by or is under common control with, such
individual, entity or group. For purposes of this definition, the term
"control"
(and its
correlative terms) means the possession, directly or indirectly, of the power
to
direct or cause the direction of management and policies, whether through
the
ownership of voting securities, by contract or otherwise.
3. Tag-Along
Rights
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(a) Moyes
shall not, during the term of this Agreement, sell (it being understood that
the
grant of a security interest, pledge or hypothecation shall not be deemed
to be
a sale) any of his Common Stock to a third party purchaser (other than to
a
Stockholder, a Permitted Transferee or to an affiliate of Moyes), that in
such
cases agrees to be bound by the terms and conditions of this Agreement, or
pursuant to an offering registered under the Securities Act of 1933, as amended
(the "Securities
Act"))
(a
"Third
Party"),
unless
the terms and conditions of such Transfer to such Third Party shall include
an
offer to the Stockholders to include at their option in the Transfer to such
Third Party a number of shares of Common Stock, as applicable, owned by the
Stockholders determined in accordance with Sections 3(b) and (c) below. If
Moyes
determines to accept an offer, during the term of this Agreement, from a
Third
Party to purchase the Moyes Common Stock that Moyes intends to accept, Moyes
shall then cause the Third Party's offer to be reduced to writing (which
writing
shall include an offer to purchase shares of Common Stock, as applicable,
from
the Stockholders according to the terms and conditions of Section 3(b) and
(c)
hereof), and Moyes shall send written notice of the Third Party's offer (the
"Written
Notice")
to the
Stockholders. At any time within ten (10) business days after receipt of
the
Written Notice by the Stockholders, any one or more of the Stockholders may
accept the offer included in the Written Notice for up to such number of
shares
of Common Stock, as applicable, as is determined in accordance with the
provisions of Section 3(b) below by furnishing written notice of such acceptance
to Moyes and delivering to Moyes the certificates representing the shares
of
Common Stock, as applicable, to be sold pursuant to such offer, together
with a
limited power-of-attorney authorizing Moyes to sell such shares of Common
Stock
to be sold pursuant to the terms of the Third Party’s offer, and such other
transfer instruments and other documents in customary form as are reasonably
requested by Moyes in order to effect such sale.
(b) If
any
Stockholder elects to sell Common Stock to a Third Party pursuant to Section
3(a) above, such Stockholder shall have the right to sell up to that number
of
shares of Common Stock equal to the product of (A) the total number of shares
of
Common Stock to be acquired by the Third Party, times (B) a fraction, the
numerator of which shall be the total number of issued and outstanding shares
of
Common Stock owned by such Stockholder and the denominator of which shall
be the
total number of shares of Common Stock then issued and outstanding.
(c) The
purchase of Common Stock, as applicable, by a Third Party from a Stockholder
pursuant to this Section 3 shall be on the same terms and
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conditions,
including the per share price and the date of Transfer, as is received by
Moyes
and stated in the Written Notice provided to the Stockholders pursuant to
Section 3(a) above. Each Stockholder hereby agrees as to such Stockholder
only
that the willful failure by such Stockholder to Transfer the shares of Common
Stock, as applicable, at the closing after acceptance of the offer included
in
the Written Notice shall constitute a material breach of this Agreement and
Moyes shall, at his election, be relieved of all further obligations to such
defaulting Stockholder under Section 3 of this Agreement, without waiving
any
other rights Moyes may have by reason of such breach. If, at the end of 180
days
following the receipt of the Written Notice by the Stockholders, Moyes has
not
completed the Transfer of Common Stock in accordance with the terms of the
Written Notice, the restrictions on Transfer contained in this Agreement
with
respect to Common Stock, as applicable, owned by Moyes shall again be in
effect.
(d) If
within
ten (10) business days after the receipt of the Written Notice by the
Stockholders, a Stockholder has not accepted the offer contained in the Written
Notice, such Stockholder shall be deemed to have waived any and all rights
with
respect to the Transfer of Common Stock, as applicable, described in the
Written
Notice and Moyes shall have 180 days in which to Transfer not more than the
number of shares of outstanding Common Stock, as applicable, described in
the
Written Notice, on terms not more favorable to Moyes than were set forth
in the
Written Notice.
4. Moyes
Drag-Along Rights
(a) Notwithstanding
the
provisions of Section 3 above, in the event Moyes proposes to sell all or
a part
of his shares of Common Stock, as applicable, to a Third Party (in an arms
length transaction specifically excluding any affiliate of Moyes) during
the
term of this Agreement (an "Offer"),
Moyes
may, at his option, require each of the Stockholders (and their Permitted
Transferees (other than Moyes and the Company)) and each of the Optionholders
to
sell that number of shares of Common Stock (including any Common Stock issuable
upon the exercise of any stock options or other similar derivative instruments,
including those options or instruments (or any restricted stock) vesting
as a
result of the relevant drag-along sale), as applicable, determined in accordance
with Section 4(d), below to the Third Party by giving written notice (the
"Notice")
to the
Stockholders and Optionholders not later than the fifteenth business day
prior
to the consummation of the sale contemplated by the Offer. The Notice shall
contain written notice of the exercise of
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Moyes'
rights pursuant to Section 4 of this Agreement, setting forth the consideration
per share to be paid by the Third Party and the other material terms and
conditions of the Offer.
(b) The
purchase of Common Stock, as applicable, by a Third Party from the Stockholders
(or their Permitted Transferees (other than Moyes and the Company)) and
Optionholders (upon the exercise of any stock options) pursuant to this Section
4 shall be on the same terms and conditions, including the per share price
and
the date of Transfer, as applicable to Moyes and stated in the Notice provided
to the Stockholders and the Optionholders pursuant to Section 4(a)
above.
(c) Within
fifteen (15) business days following the date of the Notice, each of the
Stockholders and Optionholders (or their Permitted Transferees (other than
Moyes
and the Company)) shall deliver to Moyes certificates representing the number
of
shares of Common Stock, as applicable, owned by the Stockholders (or their
Permitted Transferees (other than Moyes and the Company)) and determined
in
accordance with Section 4(d) below and a limited power-of-attorney authorizing
Moyes to sell such shares pursuant to the terms of the Offer, and such other
transfer instruments and other documents in customary form as are reasonably
requested by Moyes in order to effect such sale.
(d) If
Moyes
exercises his rights pursuant to this Section 4 with respect to the Common
Stock, each Stockholder and Optionholder (or their Permitted Transferees
(other
than Moyes and the Company)) shall sell that number of shares of Common Stock
equal to the product of (A) the total number of shares of Common Stock to
be
acquired by the Third Party, times (B) a fraction, the numerator of which
shall
be the total number of shares of Common Stock owned by such Stockholder (or
his
or its Permitted Transferees (other than Moyes and the Company)) and the
denominator of which shall be the total number of shares of Common Stock
then
collectively owned by Moyes and the Stockholders (and their Permitted
Transferees (other than Moyes and the Company)).
5. Right
of First Refusal
No
Stockholder (other than Moyes) shall sell any of his Common Stock to a Third
Party unless such Stockholder shall first have complied with this Section
5. Any
such Stockholder proposing to sell any Common Stock to a Third Party shall
provide notice of such proposed sale (the "Sale Notice") to Moyes not less
than
forty-five (45) days prior to the date of the proposed sale. The Sale Notice
shall include the date, price and other material terms of the proposed sale.
Within thirty (30) days after receipt of the Sale Notice, Moyes may elect
by
notice to
5
such
Stockholder to purchase all of the Common Stock proposed to be sold to such
Third Party, on the terms set forth in the Sale Notice. If Moyes makes such
election, Moyes shall consummate the purchase of all of such Common Stock
not
later than sixty (60) days after making such election. If Moyes does not
make
such election, such Stockholder may proceed with the proposed sale to such
Third
Party on the terms set forth in the Sale Notice; provided, however, that
if such
sale is not concluded within forty-five (45) days of the date of the proposed
sale as set forth in the Sale Notice, such Stockholder shall again provide
Moyes
with notice of any proposed sale of Common Stock and the opportunity to elect
to
purchase such Common Stock as provided herein, prior to any such sale.
6. If
Moyes
approves an initial public offering and sale of Common Stock or other equity
securities (a "Public
Offering")
pursuant to an effective registration statement under the Securities Act,
the
Stockholders and Optionholders will take all reasonably necessary or desirable
actions in connection with the con-summation of the Public Offering; If such
Public Offering is an underwritten offering and the managing underwriters
(from
a nationally recognized investment banking firm) advise the Company that
in
their opinion the Company's capital structure will adversely affect the
marketability of the offering, each Stockholder and Optionholder will consent
to
and vote for a recapitalization, reorganization and/or exchange of the Common
Stock into securities that the managing underwriters and Moyes find acceptable,
and will take all necessary or desirable actions in connection with the
consummation of the recapitalization, reorganization and/or exchange; provided
that the resulting securities reflect and are consistent with the rights
and
preferences set forth in the Company's Articles of Incorporation as in effect
immediately prior to such Public Offering.
7. The
Company shall provide the Stockholders with not less than 10 days’ notice of any
public offering and sale of Common Stock or other equity securities of the
Company (an "Offering")
pursuant to an effective registration statement under the Securities Act,
(other
than a registration statement on X-0, X-0 or any successor form), and will
use
its reasonable best efforts to effect in connection with the registration
of
such other securities, the registration under the Securities Act of all of
the
shares of Common Stock that each Stockholder notifies (which shall then become
a
Selling Stockholder) the Company in writing that such Stockholder elects
to
include in such Offering within 10 days of such notice from the Company;
provided however that, if, at any time after giving such written notice of
its
intention to register any of its other securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register such other
securities, the Company may, at
6
its
election, give written notice of such determination to the Selling Stockholders
(or, if prior to delivery of the Stockholders’ written request described above
in this Section 6, the Stockholders) and thereupon the Company shall be relieved
of its obligation to register such shares of Common Stock in connection with
the
registration of such other securities; provided further that, if such Offering
is an underwritten offering and the managing underwriters determine (i) that
the
number of shares that the Stockholders have elected to include in the Offering
exceeds the number of shares of Common Stock which can be sold (A) in an
orderly
manner in such Offering within a price range acceptable to the holders of
a
majority of the shares of Common Stock requesting such registration, or (B)
without materially adversely affecting the market for the Common Stock, then
the
number of shares to be included by each Stockholder shall be reduced in the
same
proportion that the number of shares that such Stockholder has elected to
include in such Offering bears to the total number of shares that all
Stockholders have elected to be so included or (ii) that Stockholders should
be
excluded from the Offering, then no Stockholder shall be permitted to be
participate in such Offering. Notwithstanding the foregoing, once Moyes has
recovered his Transaction Costs (as defined in this paragraph) then, as between
Moyes and his affiliates, on the one hand, and the Moyes Children's Trust,
dated
December 14, 1992 (the "Children's Trust"), on the other hand, the number
of
shares to be included in such Offering for the account of Moyes and his
affiliates shall be reduced as necessary so that Moyes and his affiliates,
on
the one hand, and the Children’s Trust, on the other hand, are permitted to
participate in such Offering on an equal basis but in no case greater than
their
combined pro rata portion of the total number of shares of Common Stock of
the
Company that all Stockholders of the Company have elected to include in such
Offering. If such Offering is an underwritten offering and the managing
underwriters (from a nationally recognized investment banking firm) advise
the
Company that in their opinion the Company's capital structure will adversely
affect the marketability of the offering, each Stockholder and Optionholder
will
consent to and vote for a recapitalization, reorganization and/or exchange
of
the Common Stock into securities that the managing underwriters and Moyes
find
acceptable, and will take all necessary or desirable actions in connection
with
the consummation of the recapitalization, reorganization and/or exchange;
provided that the resulting securities reflect and are consistent with the
rights and preferences set forth in the Company's Articles of Incorporation
as
in effect immediately prior to such Offering. "Transaction
Costs"
shall
mean any investment, expenses or costs borne or incurred by Moyes or an entity
controlled by Moyes (other than the Company) in connection with (i) consummating
the transactions pursuant to the Agreement and Plan of Merger, dated as of
January 30, 2006, by and among the Company, North American Truck Lines, LLC
and
Green Acquisition Company (the "Transaction")
7
and
(ii)
funding the operations of the Company after the consummation of the Transaction
and before the consummation of the Offering.
8. Legend
on Certificates
The
Stockholders agree that the following legend or such legend as shall be
substituted therefor by amendment of this Agreement shall be placed on the
certificates representing any Common Stock owned by each of them and shall
be
maintained on each and every such certificate so long as this Agreement remains
in effect:
"THE
SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE
NOT BEEN REGIS-TERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL
(I) REGISTERED UNDER THE SECUR-ITIES ACT OR APPLICABLE STATE SECURITIES LAW,
OR
(II) IN THE WRIT-TEN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO
CENTRAL
FREIGHT LINES, INC., A NEVADA CORPORATION,
SUCH
OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS IN COM-PLI-ANCE
THEREWITH.
THE
SHARES EVIDENCED BY THIS CERTIFICATE ARE SUB-JECT TO THE PROVISIONS OF A
STOCKHOLDERS' AGREE-MENT DATED AS OF [ ], 2006, AMONG
CENTRAL FREIGHT LINES, INC., A NEVADA CORPORATION, XXXXX XXXXX, AND EACH
OF THE
STOCKHOLDERS AND EACH OF THE OPTIONHOLDERS OF CENTRAL FREIGHT LINES, INC.
NAMED
THEREIN (THE
"STOCK-HOLDERS' AGREEMENT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANS-FERRED, PLEDGED OR HYPO-THECATED EXCEPT IN ACCOR-DANCE WITH THE
STOCK-HOLDERS' AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE
COMPANY."
9. Term
of Agreement
8
This
Agreement shall terminate on the tenth anniversary of this Agreement;
provided,
however,
Sections 1, 2, 3, 4, 5 and 6 will terminate upon the earlier to occur of
(i)
consummation of a Public Offering, (ii) a Sale or (iii) a Change in Control
of
the Company.
For
purposes of this Agreement, (x) "Change
in Control"
means
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act")),
other
than Moyes and his affiliates, is or becomes the beneficial owner (as defined
in
Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the total
voting power of the Voting Stock of the Company, (y) "Sale"
means
the
sale of all or substantially all of the Company's assets determined on a
consolidated basis or a sale of all or substantially all of the Company's
outstanding capital stock (whether by merger, recapitalization, consolidation,
reorganization, combination or otherwise) to any Third Party or group of
Third
Parties and (z) "Voting
Stock"
means
capital stock of any class or classes of the Company, the holders of which
are
entitled, in the absence of contingencies, to participate generally in the
election of the members of the Company's Board of Directors, and any securities
of the Company convertible into, or exercisable or exchangeable for, any
such
capital stock of the Company.
10. Entire
Agreement; Amendments
(a) This
Agreement, including the other documents and writings referred to herein
or
delivered pursuant hereto and which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. There are
no
restrictions, agreements, promises, warranties, covenants or undertakings
with
respect to such matters other than those expressly set forth herein or therein.
This Agreement supersedes all prior agreements and understand-ings between
the
parties with respect to its subject matter. Any agreement on the part of
a party
hereto to any extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
(b) Except
as
otherwise set forth herein, this Agreement may be amended only by a written
instrument approved by the Company, on the one hand, and on behalf of the
other
parties to this Agreement by the holders of at least 60% of the voting power
of
the Voting Stock of the Company then owned by the parties to this Agreement
(other than the Company), on the other hand; provided,
however,
that
any amendment which adversely affect the rights or obligations of the
Stockholders hereunder or imposes additional obligations on such Stockholders
shall also require the written approval of the holders of at least a majority
of
the Voting Stock of the
9
Company
held by Stockholders other than Moyes; provided,
further,
that
without the approval of any of the parties hereto, this Agreement may be
amended
by the Board of Directors:
(i) as
may be
required to implement the addition of any person as a "Stockholder" hereunder,
including, without limitation, as a result of the issuance or Transfer of
shares
of capital stock pursuant to the terms of this Agreement or otherwise;
and
(ii) (A)
to
satisfy any requirements, conditions, guidelines or opinions contained in
any
opinion, directive, order, ruling or regulation of the Securities and Exchange
Commission, the Internal Revenue Service or any other United States federal
or
state agency, or in any United States federal or state statute, compliance
with
which the Board of Directors deems to be in the best interests of the Company,
(B) to change the name of the Company, and (C) to cure any ambiguity or correct
or supplement any provision of this Agreement that may be incomplete or
inconsistent with any other provision contained herein or to make any other
amendment or supplement with respect to matters or questions arising under
this
Agreement that will not be inconsistent with the provisions of this Agreement,
so long as such amendment or supplement under clause (ii)(C) does not adversely
affect the interests of Moyes or the Stockholders hereunder.
11. Severability
If
any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, void unenforce-able or against its
regulatory policy, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and
shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that they would have executed
the
remaining terms, provisions, covenants and restrictions without including
any of
such which may be hereafter declared invalid, void or
unenforceable.
12. No
Implied Rights
Neither
this Agreement nor any provision hereof nor any action taken or omitted to
be
taken hereunder shall be deemed to (a) create or confer on a Stockholder
any
right to be retained in the employ of the Company, or any subsidiary or
affiliate thereof, (b) create or confer on an Optionholder any rights other
than
rights granted under such Optionholder's stock option agreement or (c) to
interfere with or limit in any way the right of the Company or any subsidiary
at
any time.
10
13. 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.
14. Notices
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be deemed to have been duly given on the date of delivery,
if personally delivered or if sent by facsimile, or if mailed (registered
or
certified mail, postage prepaid, return receipt requested), on the third
(3rd)
business day following mailing as follows:
If
to the
Company, to:
Central
Freight Lines, Inc.
00000
Xxxxx Xxxx Xxxx
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
[
]
If
to a
Stockholder:
at
the address set
forth below such Stockholder's name
on
the
signature page hereto
If
to
Moyes, to:
North
American Truck Lines, LLC
0000
X.
Xxx Xxxxx Xx.
Xxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxx X. Xxxxxxx
with
a
copy to:
11
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx,
XX 00000-0000
Attention:
Xxxxxxx X. Xxxxxx, Esq.
Telecopy:
(000) 000-0000
or
to
such other address as any party may have furnished to the others in writing
in
accordance herewith, except that notices of change of address shall only
be
effective upon receipt.
15. Successors
and Assigns
Subject
to the restrictions set forth elsewhere in this Agreement, all agreements
herein
contained shall apply to and bind, and inure to the benefit of and be
enforceable by, each of the parties hereto and each of their respective heirs,
executors, administrators, successors and permitted assigns. Notwithstanding
the
foregoing or anything else in this Agreement to the contrary, at any time
or
from time to time following the date of this Agreement, Moyes shall be permitted
to assign any and all of his rights and obligations hereunder to any affiliate
of Moyes (provided that such affiliate shall assume in writing all of the
obligations and duties of Moyes hereunder), and thereafter any and all
references herein to Moyes shall refer to such affiliate. Other than as
otherwise set forth in this Agreement, at no time shall any party be permitted
to assign any of its rights or obligations hereunder to any other person
or
entity.
16. Governing
Law
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE
LOCAL LAW OF THE STATE OF NEVADA WITHOUT GIVING EFFECT TO CHOICE OF LAW
PRINCIPLES.
17. Recapitalization,
Exchanges, Stock Options, etc.
Affecting
the Common Stock. As used in this Agreement, Common Stock includes any such
stock issued upon exercise of stock options, warrants or other convertible
securities. The provisions of this Agree-ment shall apply to the full extent
set
forth herein with re-spect to (a) the Common Stock and any option, right
or
warrant to acquire Common Stock owned on the date hereof or hereafter acquired,
and (b) any and all shares of capital stock of the Company or any successor
or
assign of the Company (whether by merger, consolidation, sale of assets or
otherwise)
12
which
may
be issued in respect of, upon conversion of, in exchange for, or in substitution
for the Common Stock, by combination, recapitalization, reclassification,
merger, consolidation or otherwise. In the event of any change in the
capitalization of the Company, as a result of any stock split, stock dividend
or
stock combination, the pro-visions of this Agreement shall be appropriately
adjusted.
18. Consent
to Jurisdiction
Moyes
and
each Stockholder agree that any proceeding arising out of or relating to
this
Agreement or the breach or threatened breach of this Agreement may be commenced
and prose-cuted in a court in the State of Nevada. Moyes and each Stockholder
hereby irrevocably and unconditionally consent and submit to the non-exclusive
personal jurisdiction of any court in the State of Nevada in respect of any
such
pro-ceeding. Moyes and each Stockholder consents to service of process upon
him
or it with respect to any such proceeding by registered mail, return receipt
requested, and by any other means permitted by applicable laws and rules.
Moyes
and each Stockholder waives any objection that he or it may now or hereafter
have to the laying of venue of any such proceeding in any court in the State
of
Nevada and any claim that he or it may now or hereafter have that any such
proceeding in any court in the State of Nevada has been brought in an
inconvenient forum.
19. Injunctive
Relief
Each
of
the parties to this Agreement acknowledges and agrees that in the event of
any
breach of this Agreement, the non-breaching party or parties would be
irreparably harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties will waive the de-fense in any action
for
injunctive relief, including specific performance, that a remedy at law would
be
adequate and that the parties, in addition to any other remedy to which they
may
be entitled to at law or in equity, shall be entitled to in-junctive relief,
including specific performance, to enforce this Agreement in any action
instituted in any court of the United States or any state thereof having
subject
matter jurisdiction for such action.
20. Counterparts
This
Agreement may be executed simul-taneously in one 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.
13
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
|
CENTRAL
FREIGHT LINES, INC.
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|
By:
|
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|
Name:
|
||
|
Title:
|
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|
Xxxxx
Xxxxx
|
||
|
The
Stockholders:
|
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|
NORTH
AMERICAN TRUCK LINES, LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
||
|
XXXXX
AND XXXXXX XXXXX FAMILY TRUST, DATED DECEMBER 11, 1987
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
||
|
MOYES
CHILDREN'S TRUST, DATED DECEMBER 14, 1992
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
||
|
The
Optionholders:
|
||
|
Xxxxxx
X. Xxxxx
|
||
|
Address:
|
||
