Exhibit 10.34
EXECUTION COPY
STOCK PURCHASE, CONTRIBUTION, AND EXCHANGE AGREEMENT
By and Among
ATS ACQUISITION HOLDING CO.
The Management Stockholders
as defined herein
and
The Investor
as defined herein
Dated as of October 21, 2004
Exhibit 10.34
TABLE OF CONTENTS
Page
ARTICLE I
CLOSING OF TRANSACTIONS
1
SECTION 1.1.
CLOSING GENERALLY.
1
SECTION 1.2.
CONDITIONS PRECEDENT.
2
ARTICLE II
SALE AND ISSUANCE OF COMMON STOCK
2
SECTION 2.1.
TERMS OF SALE AND ISSUANCE.
2
SECTION 2.2.
STOCK CERTIFICATES; DELIVERY OF INVESTOR PURCHASE PRICE.
2
ARTICLE III CONTRIBUTION AND EXCHANGE OF ARNOLD MEMBERSHIP INTERESTS 3
SECTION 3.1.
TERMS OF CONTRIBUTION AND EXCHANGE.
3
SECTION 3.2.
STOCK CERTIFICATES; DELIVERY OF MEMBERSHIP INTEREST CERTIFICATES.
3
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3
SECTION 4.1.
ORGANIZATION, GOOD STANDING AND QUALIFICATION.
3
SECTION 4.2.
AUTHORIZATION.
3
SECTION 4.3.
VALID ISSUANCE OF COMMON STOCK.
4
SECTION 4.4.
GOVERNMENTAL CONSENTS.
4
SECTION 4.5.
OFFERING.
4
SECTION 4.6.
CAPITALIZATION.
4
SECTION 4.7.
LIABILITIES.
4
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
4
SECTION 5.1.
AUTHORIZATION.
4
SECTION 5.2.
PURCHASE ENTIRELY FOR OWN ACCOUNT.
5
SECTION 5.3.
DISCLOSURE OF INFORMATION.
5
SECTION 5.4.
INVESTMENT EXPERIENCE.
5
SECTION 5.5.
ACCREDITED INVESTOR.
5
SECTION 5.6.
RESTRICTED SECURITIES.
5
SECTION 5.7.
FURTHER LIMITATIONS ON DISPOSITION.
5
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE MANAGEMENT STOCKHOLDERS 6 Section 6.1.
Authorization.
6
Section 6.2.
Purchase Entirely for Own Account.
6
Section 6.3.
Disclosure of Information.
6
Section 6.4.
Investment Experience.
7
Section 6.5.
Restricted Securities.
7
Section 6.6.
Further Limitations on Disposition.
7
Section 6.7.
Title; No Liens.
7
ARTICLE VII LEGEND 8
i
ARTICLE VIII MISCELLANEOUS 8 Section 8.1.
Survival of Warranties.
8
Section 8.2.
Successors and Assigns.
8
Section 8.3.
Governing Law.
8
Section 8.4.
Counterparts.
8
Section 8.5.
Headings; Interpretation.
9
Section 8.6.
Notices.
9
Section 8.7.
Finder' s Fee.
10
Section 8.8.
Amendments and Waivers.
10
Section 8.9.
Severability.
10
Section 8.10.
Entire Agreement.
10
Section 8.11.
Expenses.
10
SCHEDULES
Schedule A
-
Management Stockholders
ii
Exhibit 10.34
STOCK PURCHASE, CONTRIBUTION, AND EXCHANGE AGREEMENT
THIS STOCK PURCHASE, CONTRIBUTION, AND EXCHANGE AGREEMENT (the " Agreement" ) is made as of October 21, 2004, by and among ATS Acquisition Holding Co., a Delaware corporation (the " Company" ), Xpress Holdings, Inc. , a Nevada corporation (" Investor" ), and the individuals identified on Schedule A hereto as the Management Stockholders (the " Management Stockholders" ). The Company, the Investor, and the Management Stockholders are individually each referred to herein as a " Party" and are collectively referred to herein as the " Parties ."
WHEREAS, the Company was duly incorporated in the State of Delaware on October 7, 2004, for the purpose of owning all of the capital stock of ATS Merger Co., a Delaware limited liability company (the " Merger Sub" ), and consummating the transactions contemplated by that certain Stock Purchase and Merger Agreement, dated October 21, 2004 (the " Arnold Purchase Agreement" ), by and among the Company, Merger Sub, Arnold Holdings, LLC, a Delaware limited liability company (" Arnold Holdings" ), Arnold Transportation Holdings, Inc., Arnold Transportation Services, Inc., and certain of the members of Arnold Holdings;
WHEREAS, in connection therewith, the Investor desires to purchase from the Company, and the Company desires to issue to the Investor, shares of the Company' s Common Stock, par value $0.001 per share (the " Common Stock" ), on the terms and conditions set forth in this Agreement;
WHEREAS, in connection therewith, the Management Stockholders together desire to exchange certain of their membership interests in Arnold Holdings (the " Arnold Membership Interests" ) for shares of Company' s Common Stock, and the Company desires to issue to the Management Stockholders shares of its Common Stock, on the terms and conditions set forth in this Agreement; and
WHEREAS, the Parties hereto intend for the transactions contemplated hereby to constitute a tax-free transfer under Section 351 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the premises hereof and the covenants and agreements set forth herein, and for other consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
CLOSING OF TRANSACTIONS
Section 1.1. Closing Generally . Subject to and in accordance with the provisions of this Agreement, the consummation of the transactions contemplated by this Agreement (the " Closing" ) shall be deemed to occur at 11:59:59 p.m. Eastern Time, at the offices of Scudder Law Firm, P.C., L.L.O., 411 S. 13th Street, Suite 200, Lincoln, NE 68508, on the first business
1
day following the satisfaction or waiver of all conditions to the obligations of the Parties hereto and to the Arnold Purchase Agreement (other than those conditions which by their terms can only be satisfied at the Closing), or at such other time, date, and place as such Parties shall mutually agree, it being understood that the Closing under this Agreement is intended to and shall occur as of the end of the day before the closing date under the Arnold Purchase Agreement.
Section 1.2. Conditions Precedent . The obligations of the Investor and each of the Management Stockholders to consummate the transactions contemplated by this Agreement shall be subject to the following conditions precedent:
(a) All conditions to the closing of the transactions contemplated by the Arnold Purchase Agreement shall have occurred or been waived pursuant to the terms of the Arnold Purchase Agreement, and such closing shall be scheduled to occur immediately following the transactions contemplated by this Agreement;
(b) The Company, the Investor, and each Management Stockholder shall have executed, on the date hereof, the Stockholders' Agreement attached hereto as Exhibit A (the " Stockholders' Agreement" ); and
(c) The representations and warranties made by the Company and each Management Stockholder (in the case of the Investor' s condition precedent) and of the Company and the Investor (in the case of each Management Stockholder' s condition precedent) shall remain true and correct in all material respects as of Closing, and the covenants to be performed by such Parties shall have been performed in all material respects prior to Closing.
In the event that the foregoing conditions precedent have not been satisfied by November 30, 2004, or if the Arnold Purchase Agreement is terminated before the closing thereof pursuant to its terms, this Agreement shall be terminated and of no further force or effect.
ARTICLE II
SALE AND ISSUANCE OF COMMON STOCK
Section 2.1. Terms of Sale and Issuance . Subject to the terms and conditions of this Agreement (including, but not limited to, the provisions of Section 1.2 hereof), the Investor agrees to purchase at the Closing, and the Company agrees to sell and issue to the Investor at the Closing, a total of sixty-three thousand three hundred ten (63,310) shares of Common Stock for the aggregate purchase price of Six Million Two Hundred Fifteen Thousand Seven Hundred Seventy-Five and 80/100 ($6,215,775.80) (the " Investor Purchase Price" ).
Section 2.2. Stock Certificates; Delivery of Investor Purchase Price . Following the Closing, the Company shall deliver to the Investor a certificate representing the shares of Common Stock that the Investor is purchasing against payment of the Investor Purchase Price by wire transfer of immediately available funds.
2
ARTICLE III
CONTRIBUTION AND EXCHANGE OF ARNOLD MEMBERSHIP INTERESTS
Section 3.1. Terms of Contribution and Exchange . Subject to the terms and conditions of this Agreement (including, but not limited to, the provisions of Section 1.2 hereof), at the Closing, the Management Stockholders shall contribute to the Company the Arnold Membership Interests specified on Schedule A hereto in exchange for an aggregate of sixty-five thousand eight hundred ninety-four (65,894) shares of the Company' s Common Stock. Each Arnold Membership Interest contributed to the Company shall entitle the contributing Management Stockholder to receive one half (1/2) of a share of the Company' s Common Stock.
Section 3.2. Stock Certificates; Delivery of Membership Interest Certificates . At the Closing, the Management Stockholders shall deliver to the Company all certificates representing the Arnold Membership Interests to be exchanged hereunder, endorsed by such Management Stockholder in blank (or with membership interest transfer powers executed by such Member in blank attached). Following the Closing, the Company shall deliver to each of the Management Stockholders a certificate representing the shares of Common Stock that such Management Stockholder is entitled to receive under this Section 3.2.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investor and to each Management Stockholder as of the date hereof:
Section 4.1. Organization, Good Standing and Qualification . The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a materially adverse effect on its business or properties.
Section 4.2. Authorization . The Company has all requisite corporate power and authority to execute and deliver this Agreement and all related agreements and to carry out and perform its obligations under the terms hereof and thereof. All corporate action on the part of the Company, its officers, directors, and stockholders necessary for the authorization, execution, and delivery of this Agreement and ...
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