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EX 10.22
STOCKHOLDERS' AGREEMENT, dated as of October 15, 1996, by and among
Ann Heafner Gaither, William H. Gaither, Albert C. Gaither, Susan
Gaither Jones, Lawson H. Gaither, Albert Comer Gaither and Thomas R.
Jones (each a "Stockholder" and collectively, the "Stockholders")
relating to The J.H. Heafner Company, Inc., a North Carolina
corporation (the "Corporation").
The Stockholders desire to enter into this Agreement to facilitate
the ongoing operation, management and success of the Corporation. The
Stockholders acknowledge that the long term interest of the Corporation may
include certain corporate restructurings and acquisitions, including, without
limitation, the acquisition (and the financing of such acquisition) by the
Corporation of certain assets including all of the capital stock and related
assets (including tradenames and trademarks) of Oliver & Winston, Inc.
In consideration of the foregoing and the agreements and mutual
covenants contained herein, the Stockholders agree as follows:
ARTICLE I
Right of First Refusal
Section 1. Transfer of Shares.
(A) No Stockholder shall sell, assign, pledge or otherwise transfer
(a "Transfer") any of the issued and outstanding shares of the common stock, par
value $100.00 per share, of the Corporation (the "Shares") other than to a
Permissible Transferee (defined below), without first complying with the terms,
conditions and provisions of this Article; provided, however, that, any
Permissible Transferee shall take any such Shares subject to all of the terms,
conditions and provisions of this Agreement and, as a condition to such
Transfer, such Permissible Transferee shall execute a counterpart to this
Agreement and become a Stockholder for all purposes hereunder. "Permissible
Transferees" shall include: (i) Ann Heafner Gaither; (ii) descendants of Ann
Heafner Gaither, (iii) corporations, partnerships, limited liability companies
and charitable organizations controlled (as defined below) by the persons
described in clauses (i) and (ii) hereof; (iv) any trust which meets both the
"Control Test" and the "Beneficial Ownership Test"; and (v) the estate of any
person to the extent the Shares held by such person are distributable pursuant
to the terms of such person's will or through intestate distribution, as the
case may be, to a person described in clauses (i) through (iv) hereof. The
"Control Test" shall be considered met by any trust if a majority of the
trustees of such trust are described in clauses (i), (ii) and (iii) hereof. The
"Beneficial Ownership Test" shall be considered met by any trust if such trust
(A) is for the exclusive benefit of Ann Heafner Gaither, one or more charitable
organizations controlled by the persons described in clauses (i) and (ii) hereof
or one or more descendants of Ann Heafner
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Gaither or (B) is a trust that meets the requirements of Section
2056(b) (7) of the Internal Revenue Code of 1986 as amended which is for the
lifetime benefit of Ann Heafner Gaither's spouse or one or more of the persons
described in clauses (i) through (iv) hereof. For purposes of clause (iii)
hereof, an organization shall be deemed to be controlled if (but only if)
persons described in clauses (i) through (iii) hereof (A) constitute a majority
of the members of the board of directors, if such organization is a charitable
foundation, (B) constitute a majority of the members of the board of directors
and own more than 50% by value of the outstanding shares, if such organization
is a corporation (other than a charitable foundation), (C) represent a majority
of the general partnership interests and own more than 50% by value of the
general and limited partnership interests, if such organization is a
partnership, or (D) constitute a majority of the trustees, if such organization
is a charitable trust.
(B) In the event a Stockholder (a "Selling Stockholder") proposes to
accept any bona fide offer for the purchase of any or all of his Shares (the
"Subject Shares") from any person other than a Permissible Transferee (the
"Offer"), the Selling Stockholder shall give written notice of the Offer to the
Corporation and the other Stockholders. The written notice shall disclose the
name and address of the proposed purchaser, the price per Share, the number of
shares and all other terms, conditions and provisions of the Offer.
(C) The Corporation shall have an option to purchase all or part of
the Subject Shares at the same price and on the same terms and conditions as the
Offer, pursuant to the following provisions:
(i) Corporation Option Period. The Corporation shall have twenty
days after the receipt of written notice from the Selling Stockholder (the
"Corporation Option Period") to exercise its option to purchase any or all
of the Subject Shares.
(ii) Exercise of Option. The Corporation shall exercise its option
by giving written notice to the Selling Stockholder and the other
Stockholders of the number of Subject Shares that it agrees to purchase.
If the Corporation declines to exercise its option, it shall give written
notice to the Stockholders of such decision.
(D) In the event the Corporation does not purchase all of the
Subject Shares, each Stockholder, other than the Selling Stockholder, shall have
an option to purchase that number of Subject Shares not purchased by the
Corporation equal to the product of (i) the quotient obtained by dividing the
number of Shares owned by such Stockholder by the total number of Shares (other
than the Subject Shares) and (ii) the Subject Shares at the same price and on
the same terms and conditions as the Offer, pursuant to the following
provisions:
(i) First Option Period. Each Stockholder, other than the Selling
Stockholder, shall have twenty days after receipt of notice from the
Corporation
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that it is not electing to purchase all of the Subject Shares (the "First
Option Period") to exercise such Stockholder's option to purchase any or
all of the Subject Shares offered during the Option Period (each an
"Accepting Stockholder").
(ii) Exercise of Option. Each Accepting Stockholder shall exercise
such Stockholder's option by giving written notice to the Selling
Stockholder and the Corporation of the number of Subject Shares that such
Stockholder agrees to purchase. The failure of any Stockholder to give
written notice to the Selling Stockholder within the First Option Period
shall constitute a rejection of such Stockholder's option to purchase such
Stockholder's pro rata portion of the Subject Shares.
(iii) Shares Upon Which the Option Is Not Initially Exercised. Any
Subject Shares, upon which the option described in this Section has not
been exercised, shall be offered to Accepting Stockholders, if any, such
that each Accepting Stockholder shall be offered that number of Subject
Shares equal to the product of (i) the quotient obtained by dividing the
number of Subject Shares upon which such Accepting Stockholder has
exercised his option by the total number of Subject Shares and (ii) that
number of Subject Shares upon which the Option Period has expired. Each
Accepting Stockholder shall have the ten days (the "Second Option Period")
after the date the written notice referred to in the preceding sentence is
deemed effective to exercise such Stockholder's option to purchase the
Subject Shares offered to such Stockholders pursuant to the terms of the
preceding sentence.
(E) For a period of thirty days after expiration of the First Option
Period, or if applicable, for a period of thirty days after expiration of the
Second Option Period, the Selling Stockholder shall have the right to Transfer
to the proposed purchaser, at the price and on the terms and conditions of the
Offer, the Subject Shares with respect to which the Corporation and any
Stockholder shall have failed to exercise an option pursuant to this Section. In
the event of a sale of any or all of the Subject Shares to the proposed
purchaser, the Subject Shares in the hands of such purchaser shall continue to
be subject to all of the terms, conditions and provisions of this Agreement and
as a condition to such sale, such purchaser shall execute a counterpart to this
Agreement and shall become a Stockholder for all purposes hereunder.
Section 2. Involuntary Transfer and Foreclosure.
Prior to any involuntary transfer or foreclosure upon any Shares
owned by any Stockholder, such Stockholder, his or her representatives and any
person seeking to foreclose upon or otherwise acquire such Shares through
involuntary procedures shall be required to give written notice to all the other
Stockholders disclosing in full the nature and details of the involuntary
transfer or foreclosure, including the price per share, if any, to be paid for
the Shares. Upon the effective date of such written notice, the Stockholder
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owning such Shares shall be deemed to have proposed to sell such Shares for
purposes of Section 1 of this Article to a person other than a Permissible
Transferee pursuant to an offer for the price per share set out in such written
notice, and the Corporation and each of the other Stockholders shall have an
option to purchase such Shares pursuant to the terms, conditions and provisions
of Section 1 of this Article, free and clear of any claim of the person seeking
to foreclose upon or otherwise acquire such Shares, except as to any interest
which such person may have in the amount to be paid for such Shares.
ARTICLE II
Voting of the Shares
The Stockholders agree to enter into a Voting Trust Agreement of
even date pursuant to which Ann Heafner Gaither and William H. Gaither have sole
voting power over the Shares.
ARTICLE III
Endorsement of Share Certificates
Each Share certificate shall be endorsed with the following legend:
The Shares represented by this certificate are subject to the transfer and
voting provisions and restrictions set forth in the Stockholders'
Agreement dated as of October 15, 1996 among Ann Heafner Gaither, William
H. Gaither, Albert C. Gaither, Susan Gaither Jones, Lawson H. Gaither,
Albert Comer Gaither and Thomas R. Jones. Such Stockholders' Agreement
provides, among other things, for a right of first refusal relating to the
securities represented by this certificate and that the securities
represented by this certificate must be voted by Ann Heafner Gaither and
William H. Gaither pursuant to the Voting Trust Agreement, dated as of
October 15, 1996, among all of the Stockholders of the Corporation. By
acceptance of this certificate, each holder hereof agrees to be bound by
the provisions of the Stockholders' Agreement, a copy of which has been
filed with the Secretary of the Corporation and may be obtained, without
charge, upon written request at the Corporation's principal office during
regular business hours.
Each Stockholder agrees that he will deliver all certificates for Shares owned
by him to the Secretary of the Corporation for the purpose of affixing such
legend thereto.
ARTICLE IV
After-Acquired or Substitute Interests
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(A) In the event of the issuance by the Corporation of additional
shares of capital stock, or of any stock dividends on or any subdivisions,
combinations or reclassification of the Shares presently owned or hereafter
acquired by the Stockholders, the restrictions, options and obligations
contained in this Agreement shall be applicable to all shares and options on
shares of the Corporation issued in respect of the Shares.
(B) If any Stockholder shall at any time exchange all or any number
of his Shares for any interest in any entity, all of the provisions of this
Agreement shall apply to such interest in such entity as would have applied to
such Shares if such Shares had not been exchanged for such interest.
ARTICLE V
Miscellaneous
Section 1. Filing of Agreement. An executed copy of this Agreement
shall be filed with the Secretary of the Corporation. The Stockholders shall
cause the Corporation to furnish free of charge to any stockholder thereof a
copy of this Agreement upon written request.
Section 2. Notices. Any and all notices, designations, consents,
offers, acceptances or any other communication provided for herein shall be made
by hand delivery, first-class mail (registered or certified, return receipt
requested), or overnight air courier guaranteeing next day delivery to the
address set forth on Schedule I to this Agreement. Any Stockholder may change
the address listed in the foregoing sentence by giving written notice to the
Corporation and the other Stockholders. Except as otherwise provided in this
Agreement, each such notice shall be deemed effective at the time delivered by
hand, if personally delivered; five business days after being deposited in the
mail, postage prepaid, if mailed; and the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Section 3. Amendment and Termination.
(A) The provisions of this Agreement may be amended only by the
written consent of Stockholders holding more than 75% of the Shares then
outstanding (after taking into account Article IV hereof).
(B) The provisions of this Agreement shall terminate upon the first
to occur of the following events:
(i) the consummation of a public offering of the Corporation's
common stock in which the public float is not less than $20 million; and
(ii) the written consent of Stockholders holding more than 75% of
the Shares then outstanding (after taking into account Article IV hereof).
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In addition, in the event the Corporation is dissolved or liquidated, this
Agreement shall automatically terminate. Notwithstanding anything to the
contrary in this clause (B), the provisions of Article IV shall terminate on the
tenth anniversary hereof unless each of the Stockholders agree in writing to
extend the duration of the Article for a period not to exceed ten years beyond
the date that the first Stockholder executes the instrument providing for the
extension.
Section 4. Waiver. No failure or delay on the part of the
Stockholders or any of them in exercising any right, power or privilege
hereunder, and no course of dealing among the Stockholders shall operate as a
waiver thereof nor shall any single or partial exercise of any right, power or
privilege hereunder preclude the simultaneous or later exercise of any other
right, power or privilege. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights and remedies which the Stockholders
or any of them would otherwise have.
Section 5. Counterparts. This Agreement may be executed in two 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.
Section 6. Governing Law. This Agreement shall be governed and
construed in accordance with the law of the State of North Carolina.
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Section 7. Benefit and Binding Effect
This Agreement shall be binding upon and shall inure to the benefit
of each of the Stockholders and their respective executors, administrators and
personal representatives and heirs and assigns.
This Agreement has been duly executed by each of the undersigned.
/s/ ANN HEAFNER GAITHER
ANN HEAFNER GAITHER
/s/ WILLIAM H. GAITHER
WILLIAM H. GAITHER
/s/ ALBERT C. GAITHER
ALBERT C. GAITHER
/s/ SUSAN GAITHER JONES
SUSAN GAITHER JONES
/s/ LAWSON H. GAITHER
LAWSON H. GAITHER
/s/ ALBERT COMER GAITHER
ALBERT COMER GAITHER
/s/ THOMAS R. JONES
THOMAS R. JONES
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Schedule 1
Addresses
The J.H. Heafner Company, Inc.
814 East Main Street
P.O. Box 837
Lincolnton, NC 28093-0837
Ann Heafner Gaither
Albert C. Gaither
821 Woodson Road
Newton, NC 28658
William H. Gaither
814 E. Main Street
Lincolnton, NC 28092
Susan Gaither and Thomas R. Jones
126 W. 6th Street
Newton, NC 28658
Lawson H. Gaither
814 E. Main Street
Lincolnton, NC 28092
Albert Comer Gaither
301 Watts Street
Durham, NC 27701