EXHIBIT 10.5
THIS WARRANT WAS ORIGINALLY ISSUED ON JANUARY 4, 2001 AND HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE TRANSFERRED IN VIOLATION OF SUCH ACT, THE RULES AND REGULATIONS
THEREUNDER OR THE PROVISIONS OF THIS WARRANT. THIS WARRANT IS ALSO
SUBJECT TO A BRIDGE LOAN AGREEMENT DATED AS OF JANUARY 4, 2001 BY AND
BETWEEN UNITED SHIPPING & TECHNOLOGY, INC. (THE "COMPANY") AND THE
ORIGINAL HOLDER HEREOF, AS AMENDED FROM TIME TO TIME. A COPY OF SUCH
BRIDGE LOAN AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY
TO THE HOLDER HEREOF UPON REQUEST.
STOCK PURCHASE WARRANT
TO ACQUIRE PREFERRED STOCK
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Date of Issuance: January 4, 2001 Certificate No. W-___
For value received, UNITED SHIPPING & TECHNOLOGY, INC., a Utah corporation
(the "Company"), hereby grants to [NAME OF ENTITY], a [FORM OF ENTITY AND STATE
OF ORGANIZATION], or its transferees and assigns, the right to purchase from the
Company _____________ (___________) Warrant Shares (as defined herein) at a
price per Share equal to $0.01 (the "Exercise Price"). Certain capitalized terms
used herein are defined in Section 3 hereof.
This Warrant is one of the "Warrants" (collectively, the "Warrants") issued
pursuant to the terms of a Bridge Loan Agreement dated as of January 4, 2001
between the Company and the Investors named therein (as amended, restated or
modified from time to time, the "Loan Agreement"). Certain capitalized terms
used herein are defined in Section 3 hereof.
This Warrant is subject to the following provisions:
SECTION 1. Exercise of Warrant.
1A. Exercise Period. The purchase rights represented by this Warrant
may only be exercised, in whole or in part, at any time, and from time to
time until 5:00 p.m., New York time, on January 4, 2006 or, if such day is
not a business day, on the next preceding business day (the "Exercise
Period").
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised when all
of the following items have been delivered to the Company (the
"Exercise Time"):
(a) a completed Exercise Agreement, as described in Section
1C below, executed by the Person exercising all or part of the
purchase rights represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if the Purchaser is not the Registered Holder, an
Assignment or Assignments in the form set forth in Exhibit II
attached hereto evidencing the assignment of this Warrant to the
Purchaser; and
(d) a check or wire transfer payable to the Company in an
amount equal to the product of the Exercise Price multiplied by
the number of Warrant Shares being purchased upon such exercise
(the "Aggregate Exercise Price").
(ii) Certificates for Warrant Shares purchased upon exercise of
this Warrant shall be delivered by the Company to the Purchaser within
five days after the date of the Exercise Time. Unless this Warrant has
expired or all of the purchase rights represented hereby have been
exercised, the Company shall prepare a new Warrant, substantially
identical hereto, representing the rights formerly represented by this
Warrant which have not expired or been exercised and shall, within
such five-day period, deliver such new Warrant to the Person
designated for delivery in the Exercise Agreement.
(iii) The Warrant Shares issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the
Exercise Time, and the Purchaser shall be deemed for all purposes to
have become the Registered Holder of such Warrant Shares at the
Exercise Time.
(iv) The Company shall not close its books against the transfer
of this Warrant or of any Warrant Shares issued or issuable upon the
exercise of this Warrant in any manner which interferes with the
timely exercise of this Warrant. The Company shall from time to time
take all such action as may be necessary to assure that the par value
per share of the unissued Warrant Shares acquirable upon exercise of
this Warrant is at all times equal to or less than the Exercise Price
then in effect. In the event that the Company fails to comply with its
obligations set forth in the foregoing sentence, the Purchaser may
(but shall not be obligated to) purchase Warrant Shares hereunder at
par value, and the Company shall be obligated to reimburse the
Purchaser for the aggregate amount of consideration paid in connection
with such exercise in excess of the Exercise Price then in effect.
(v) Notwithstanding any other provision hereof, if an exercise of
any portion of this Warrant is to be made in connection with a public
offering or a sale of the Company (pursuant to a merger, sale of
stock, or otherwise), such exercise may at the election of the
Registered Holder be conditioned upon the consummation of such
transaction, in which case such exercise shall not be deemed to be
effective until immediately prior to the consummation of such
transaction.
(vi) The Company shall at all times reserve and keep available
out of its authorized but unissued Preferred Stock solely for the
purpose of issuance upon the exercise of this Warrant, the maximum
number of Warrant Shares issuable upon the exercise of this Warrant.
All Warrant Shares which are so issuable shall, when issued and upon
the payment of the applicable Exercise Price, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens
and charges except those created by actions of the holder hereof. The
Company shall take all such reasonable actions as may be necessary to
ensure that all such Warrant Shares may be so issued without violation
by the Company of any applicable law or governmental regulation.
1C. Exercise Agreement. Upon any exercise of this Warrant, the
Purchaser shall deliver to the Company an Exercise Agreement in
substantially the form set forth as Exhibit I hereto, except that if the
Warrant Shares are not to be issued in the name of the Registered Holder,
the Exercise Agreement shall also state the name of the Person to whom the
certificates for the Warrant Shares are to be issued, and if the number of
Warrant Shares to be issued does not include all of the Warrant Shares
purchasable hereunder, it shall also state the name of the Person to whom a
new Warrant for the unexercised portion of the rights hereunder is to be
issued.
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SECTION 2. Adjustment of Exercise Price and Number of Shares. In order to
prevent dilution of the rights granted under this Warrant, the number of Warrant
Shares obtainable upon exercise of this Warrant shall be subject to adjustment
from time to time as provided in this Section 2.
2A. Subdivision or Combination of Common Stock. If the Company at any
time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock
into a greater number of shares, the number of Warrant Shares obtainable
upon exercise of this Warrant shall be proportionately increased. If the
Company at any time combines (by reverse stock split or otherwise) one or
more classes of its outstanding shares of Preferred Stock into a smaller
number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant
Shares obtainable upon exercise of this Warrant shall be proportionately
decreased.
2B. Reorganization, Reclassification, Consolidation, Merger or Sale.
Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets or other
transaction, which in each case is effected in such a way that the holders
of Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
Common Stock is referred to herein as "Organic Change." Prior to the
consummation of any Organic Change, the Company shall make appropriate
provision to insure that the Registered Holder of this Warrant shall
thereafter have the right to acquire and receive, in lieu of the Warrant
Shares immediately theretofore acquirable and receivable upon the exercise
of such holder's Warrant, such shares of stock, securities or assets as
such Registered Holder would have received in connection with such Organic
Change if such Registered Holder had exercised this Warrant in full
immediately prior to such Organic Change. In each such case, the Company
shall make appropriate provision with respect to such holder's rights and
interests to insure that the provisions of this Section 2 shall thereafter
be applicable to this Warrant. The Company shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof,
the successor entity (if other than the Company) resulting from
consolidation or merger or the entity purchasing such assets assumes by
written instrument, the obligation to deliver to such holder such shares of
stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to acquire.
2C. Certain Events. If any event occurs of the type contemplated by
the provisions of this Section 2 but not expressly provided for by such
provisions, then the Company's Board of Directors shall make an appropriate
adjustment in the number of Warrant Shares obtainable upon exercise of this
Warrant so as to protect the rights of the holders of this Warrant;
provided, that no such adjustment shall increase or decrease the number of
Warrant Shares obtainable as otherwise determined pursuant to this Section
2.
2D. Notices.
(i) The Company shall give written notice to the Registered
Holder at least 20 days prior to the date on which the Company closes
its books or takes a record (a) with respect to any pro rata
subscription offer to holders of Common Stock or (b) for determining
rights to vote with respect to any Organic Change, dissolution or
liquidation.
(ii) The Company shall also give written notice to the Registered
Holders at least 20 days prior to the date on which any Organic
Change, dissolution or liquidation shall take place.
SECTION 3. Definitions. The following terms have the meanings set forth
below:
"Person" means any individual, partnership, limited liability company,
joint venture, corporation, trust, unincorporated organization or government or
department or agency thereof.
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"Registered Holder" means the holder of this Warrant as reflected in the
records of the Company maintained pursuant to the provisions of Section 11.
"Preferred Stock" means, collectively, the Series D Convertible Preferred
Stock, or any series of convertible preferred stock of the Company issued
following the date of this Warrant senior to such Series D Convertible Preferred
Stock, and any securities into which such Preferred Stock is hereafter converted
or exchanged.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control the managing general partner of such limited liability
company, partnership, association or other business entity.
"Warrant Shares" means shares of Preferred Stock issuable upon exercise of
the Warrant; provided, that if the securities issuable upon exercise of this
Warrant are issued by an entity other than the Company or there is a change in
the class of securities so issuable, then the term "Warrant Shares" shall mean
shares of the security issuable upon exercise of this Warrant if such security
is issuable in shares, or shall mean the equivalent units in which such security
is issuable if such security is not issuable in shares.
SECTION 4. No Voting Rights; Limitations of Liability. This Warrant shall
not entitle the Registered Holder hereof to any voting rights or other rights as
a stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Registered Holder to purchase Warrant Shares, and no enumeration
herein of the rights or privileges of the Registered Holder shall give rise to
any liability of such Registered Holder for the Exercise Price of Warrant Shares
acquirable by exercise hereof or as a stockholder of the Company.
SECTION 5. Transferability. Subject to compliance with the Securities Act
of 1933, as amended, and other applicable securities law, this Warrant and all
rights hereunder are transferable, in whole or in part, without charge to the
Registered Holder, upon surrender of this Warrant with a properly executed
Assignment (in the form of Exhibit II hereto).
SECTION 6. Warrant Exchangeable for Different Denominations. This Warrant
is exchangeable, upon the surrender hereof by the Registered Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the purchase rights hereunder, and each of such new Warrants shall
represent such portion of such rights as is designated by the Registered Holder
at the time of such surrender. At the request of the Registered Holder (pursuant
to a transfer of this Warrant or otherwise), this Warrant may be exchanged for
one or more Warrants to purchase Common Stock. The date the Company initially
issues this Warrant shall be deemed to be the date of issuance hereof regardless
of the number of times new certificates representing the unexpired and
unexercised rights formerly represented by this Warrant shall be issued.
SECTION 7. Exchange. In the event that it becomes unlawful or, in the
reasonable judgment of any Registered Holder of this Warrant, unduly burdensome
by reason of a change in legal or regulatory considerations or the
interpretation thereof affecting the ability of financial institutions or their
affiliates to hold equity securities, or any material change (including a
reduction in the number of shares of
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Common Stock outstanding) in the capital structure of the Company, to hold this
Warrant or any of the Warrant Shares, the Registered Holder of this Warrant
shall have the right to require all or part of this Warrant or such Registered
Holder's Warrant Shares to be exchanged for nonvoting stock or similar interests
that convey equivalent economic benefits to such Warrant or Warrant Shares. Any
such exchange shall occur as soon as practicable but in any event within sixty
(60) days after written notice by the Registered Holder of this Warrant to the
Company (or such earlier date if required to comply with applicable law).
SECTION 8. Replacement. Upon receipt of evidence reasonably satisfactory to
the Company (an affidavit of the Registered Holder shall be satisfactory) of the
ownership and the loss, theft, destruction, or mutilation of any certificate
evidencing this Warrant, and in the case of any such loss, theft, or
destruction, upon receipt of indemnity reasonably satisfactory to the Company
(provided, that if the Registered Holder is a financial institution or other
institutional investor its own Agreement shall be satisfactory), or, in the case
of any such mutilation upon surrender of such certificate, the Company shall (at
its expense) execute and deliver in lieu of such certificate a new certificate
of like kind representing the same rights represented by such lost, stolen,
destroyed, or mutilated certificate and dated the date of such lost, stolen,
destroyed, or mutilated certificate.
SECTION 9. Notices. Except as otherwise expressly provided herein, all
notices and deliveries referred to in this Warrant shall be in writing, shall be
delivered personally, sent by registered or certified mail, return receipt
requested and postage prepaid or sent via nationally recognized overnight
courier or via facsimile, and shall be deemed to have been given when so
delivered (or when received, if delivered by any other method) if sent (i) to
the Company, at its principal executive offices, and (ii) to a Registered
Holder, at such Registered Holder's address as it appears in the records of the
Company (unless otherwise indicated by any such Registered Holder).
SECTION 10. Amendment and Waiver. Except as otherwise provided herein, the
provisions of this Warrant may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the prior written consent of the Registered
Holder.
SECTION 11. Warrant Register. The Company shall maintain at its principal
executive offices books for the registration and the registration of transfer of
Warrants. The Company may deem and treat the Registered Holder as the absolute
owner hereof (notwithstanding any notation of ownership or other writing thereon
made by anyone) for all purposes and shall not be affected by any notice to the
contrary.
SECTION 12. Descriptive Headings; Governing Law. The descriptive headings
of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS OR CHOICE OF
LAW OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION WHICH WOULD RESULT IN THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and
attested by its duly authorized officers under its corporate seal and to be
dated as of the date hereof.
UNITED SHIPPING & TECHNOLOGY, INC.
By:
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Name:
Title:
Attest:
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EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. [ ]), hereby agrees to subscribe for the purchase of
______ Warrant Shares covered by such Warrant and makes payment herewith in full
therefor at the price per share provided by such Warrant.
Signature
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Address
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EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, _____________________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant
(Certificate No. [ ]) with respect to the number of the Warrant Shares covered
thereby set forth below, unto:
Names of Assignee Address No. of Shares
----------------- ------- -------------
Dated:
Signature
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Witness
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