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EXHIBIT 10.4
SECOND AMENDMENT TO
ACQUISITION AGREEMENT
THIS SECOND AMENDMENT TO ACQUISITION AGREEMENT (this "Amendment"), made
as of the 30 day of May, 2000, by and among XXXX BROS. TRANSPORTATION INC., a
Delaware corporation (hereinafter referred to as "Xxxx"), XXXXXXX TRANSPORT,
INC., (formerly known as W. T. Acquisition Corp.), an Alabama corporation
(hereinafter referred to as "Xxxx Sub"), XXXXXX XXXXXXX ("Xxxxxxx") and XXXXXX
XXXXXX ("Xxxxxx") (Xxxxxxx and Xxxxxx are hereinafter sometimes collectively
referred to as the "Shareholders").
W I T N E S S E T H:
WHEREAS, Xxxx, Xxxx Sub and the Shareholders (together with Xxxxxxx
Transport, Inc., which was merged into Xxxx Sub) entered into an Acquisition
Agreement, dated October 8, 1997, as amended by that certain First Amendment to
Acquisition Agreement, Employment Agreement and Covenant Not to Compete, dated
March 17, 2000 (as amended, the "Acquisition Agreement"); and
WHEREAS, Xxxx, Xxxx Sub and the Shareholders desire to amend the
Acquisition Agreement to modify certain terms and conditions contained therein,
all as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, agreements, representations, warranties and covenants hereinafter set
forth, and the sum of ten dollars and other good and valuable consideration, the
receipt and sufficiency of which is hereby specifically agreed to and
acknowledged, the Acquisition Agreement is hereby amended as follows:
1. AMENDMENT TO ACQUISITION AGREEMENT. Section 4.5.2. of the
Acquisition Agreement is hereby amended by deleting said Section in its entirety
and substituting in lieu thereof a new 4.5.2 reading as follows:
"4.5.2. During the Restricted Period, the shares of Xxxx Common Stock
held by Xxxxxx Xxxxxx shall not be voluntarily or involuntarily
transferred, assigned, sold or conveyed and the certificates
representing such shares shall bear a legend to that effect. The words
"transfer, assign, sell or convey" shall have the meaning set forth in
Section 4.5.1. After the Restricted Period, Xxxxxx Xxxxxx may not,
during any one (1) calendar quarter, voluntarily or involuntarily
transfer, assign, sell or convey a number of shares of Xxxx Common
Stock which is greater than one percent of the number of shares of Xxxx
Common Stock outstanding at the beginning of such calendar quarter. In
the event that during (a) the five (5) calendar quarters immediately
following the Restricted Period or (b) the five (5) calendar quarters
immediately following the third (3rd) anniversary of the Closing Date
(collectively, these two five-quarter periods are hereinafter referred
to as
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the "Floor Periods") Xxxxxx Xxxxxx sells shares of Xxxx Common Stock on
the open market at a per share price which is less than the Per Share
Minimum Price, Boyd shall pay to Xxxxxx Xxxxxx the difference between
the Per Share Minimum Price and the per share price at which such
shares were sold on the open market, such payment to be made within ten
(10) days after Xxxxxx Xxxxxx transmits to Xxxx confirmation of such
sale. Notwithstanding anything to the contrary contained in this
Agreement, in the event Xxxxxx Xxxxxx elects to sell shares of Xxxx
Common Stock on the open market during the Floor Periods at a price
that is less than the Per Share Minimum Price, then Xxxxxx Xxxxxx must
first deliver written notice thereof, in the form of Exhibit 4.5.2(a)
attached hereto (a "Xxxxxx Offer Notice"), to the Chief Financial
Officer of the Company in order to provide the Company a right of first
refusal on the following terms and conditions:
(a) The Xxxxxx Offer Notice must contain a full
description of the proposed sale of Xxxx Common Stock
by Xxxxxx Xxxxxx, including, without limitation, the
number of shares of to be sold (the "Xxxxxx Affected
Shares"), the proposed price per share of the Xxxx
Common Stock, terms of payment for the Xxxxxx
Affected Shares and the proposed date of such sale. A
Xxxxxx Offer Notice shall constitute Xxxxxx Xxxxxx'x
binding agreement to sell all of the Xxxxxx Affected
Shares to the Company on the terms and conditions
specified therein.
(b) If the Company elects to purchase all, and not less
than all, of the Xxxxxx Affected Shares from Xxxxxx
Xxxxxx, the Company shall have until 5 p.m. Clayton,
Alabama time on the first business day following the
Company's receipt of the Xxxxxx Offer Notice (the
"Xxxxxx Offer Deadline") to deliver to Xxxxxx Xxxxxx,
in writing, notice of its election to so purchase the
Xxxxxx Affected Shares (the "Company Xxxxxx
Acceptance"). Upon such election by the Company, the
Company shall purchase, and Xxxxxx Xxxxxx shall sell,
of the Xxxxxx Affected Shares to the Company upon the
terms and conditions contained in the Xxxxxx Offer
Notice within three (3) business days following
Xxxxxx Xxxxxx'x receipt of the Company Xxxxxx
Acceptance. At the closing, Xxxxxx Xxxxxx shall
deliver to the Company his confirmation that he has
transferred the Xxxxxx Affected Shares free and clear
of any and all pledges, liens, claims, security
interests or other encumbrances (other than
restrictions imposed by this Agreement or applicable
securities laws) and the Company shall pay to Xxxxxx
Xxxxxx the consideration set forth in the Xxxxxx
Offer Notice in accordance with the terms described
therein, as well as any additional payments in
connection with the Per Share Minimum Price
contemplated by the first paragraph of this Section
4.5.2.
If the Company fails to provide Xxxxxx Xxxxxx notice of its election to
purchase or not to purchase the Xxxxxx Affected Shares on or before the
Xxxxxx Offer Deadline, or if the Company notifies that it has elected
not to purchase the Xxxxxx Affected Shares, Xxxxxx Xxxxxx shall be free
to sell the Xxxxxx Affected Shares on the open market in strict
accordance with the terms set forth in the Xxxxxx Offer Notice at any
time within
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ninety (90) days after the Xxxxxx Offer Deadline (the "Xxxxxx Transfer
Period Termination Date"). In the event that Xxxxxx Xxxxxx does not
sell or otherwise dispose of all of such Xxxxxx Affected Shares in the
manner set forth in the immediately preceding sentence prior to the
Xxxxxx Transfer Period Termination Date, the right of first refusal
provided for in this Section 4.5.2 shall continue to be applicable to
any subsequent sale or transfer of such Xxxxxx Affected Shares."
2. NO OTHER MODIFICATIONS. Except to the extent expressly amended
herein, all terms and conditions of the Acquisition Agreement are hereby
affirmed and shall remain in full force and effect.
3. GOVERNING LAW. This Amendment shall be governed by and construed and
interpreted in accordance with, the laws of the State of Alabama without giving
effect to any conflict or choice of laws principles.
4. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each party hereto has executed or caused this
Amendment to be executed on its behalf, all on the day and year first above
written.
XXXX BROS. TRANSPORTATION INC.
"Xxxx"
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: CFO
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XXXXXXX TRANSPORT, INC.
"Xxxx Sub"
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: CFO
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SHAREHOLDERS
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
