EXHIBIT 10.16
SECOND MODIFICATION AGREEMENT
THIS SECOND MODIFICATION AGREEMENT is entered into as of June 18, 2007
by and among LAST MILE LOGISTICS GROUP, INC., a Florida corporation ("LMLG"),
CHESAPEAKE LOGISTICS, LLC, a Maryland limited liability company ("CL"), and
XXXXXXX X. XXXXXXX, an individual ("XxXxxxx").
RECITALS:
A. Each of the parties has previously entered into a Modification
Agreement dated October 2, 2006 (the "Modification Agreement").
B. Pursuant to the terms of the Modification Agreement, LMLG and CL
executed and delivered a Promissory Note dated October 2, 2006 to XxXxxxx (the
"Note") and LMLG issued to XxXxxxx a Warrant dated October 2, 2006 (the
"Warrant").
C. By their terms, both the Note and the Warrant expire on June 30,
2007.
D. Each of the parties desires to modify the terms of each of the Note
and the Warrant.
E. Each of the parties believes that it is in its or his best interests
to enter into this Second Modification Agreement (the "Agreement") and desires
to do so.
NOW, THEREFORE, in consideration of the Recitals and the respective
covenants and agreements of the parties set forth herein, each of the parties
agrees as follows:
1. CANCELLATION OF NOTE. Simultaneously with the execution and delivery
of this Agreement, XxXxxxx is delivering the Note to LMLG and CL marked
"cancelled."
2. INTEREST. XxXxxxx acknowledges that LMLG and CL have made all
payments required to be made to him pursuant to the terms of the Note through
the date hereof. LMLG and CL shall pay all accrued but unpaid interest on the
Note through June 30, 2007.
3. AMENDED AND RESTATED NOTE. Simultaneously with the execution and
delivery of this Agreement, LMLG and CL are executing and delivering to XxXxxxx
a Second Amended and Restated Promissory Note of even date herewith in the
principal amount of One Hundred Thousand Dollars ($100,000.00) in substantially
the form of Exhibit A attached hereto (the "Second Note").
4. WARRANTS. Simultaneously with the execution and delivery of this
Agreement, LMLG is executing and delivering to XxXxxxx an Amended and Restated
Warrant in substantially the form of Exhibit B attached hereto.
5. SUBSCRIPTION AGREEMENT AND CONFIDENTIAL PURCHASER QUESTIONNAIRE.
XxXxxxx has previously executed and delivered to CL a Subscription Agreement and
Confidential Purchaser Questionnaire. XxXxxxx represents and warrants to LMLG
and CL that all of the representations and warranties made by him in the
Subscription Agreement and the Confidential Purchaser Questionnaire are true,
correct and complete on the date of this Agreement. XxXxxxx agrees with LMLG and
CL that will comply with all of the covenants and agreements made by him in the
Subscription Agreement. XxXxxxx acknowledges and agrees that LMLG shall rely
upon and be the beneficiary of the representations, warranties, covenants,
agreements and indemnities set forth in the Subscription Agreement and the
Confidential Purchaser Questionnaire.
6. GOVERNING LAW. This Agreement shall be governed by, and shall be
construed and interpreted in accordance, with the laws of the State of Maryland.
7. ENTIRE AGREEMENT. This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement among the parties with respect
to the subject matter hereof and supersede all prior agreements, understandings,
negotiations and arrangements, both oral and written, among the parties with
respect to such subject matter. This Agreement may not be amended or modified in
any manner, except by a written instrument executed by all of the parties
hereto.
8. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of, and shall be binding upon, the parties hereto and their respective heirs,
personal representatives, executors, legal representatives, successors and
assigns.
9. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
any or all of the provisions hereof.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the separate parties in separate counterparts, each of which
shall be deemed to constitute an original and all of which shall be deemed to
constitute the one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed and delivered this
Agreement as of the date first written above.
CHESAPEAKE LOGISTICS, LLC LAST MILE LOGISTICS GROUP, INC.
By /s/ Xxxxxx X. Xxxxx By /s/ Xxxxxx X. Xxxxx
------------------- -------------------
Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx,
Chief Executive Officer Chief Executive Officer
/s/ Xxxxxxx X. XxXxxxx
----------------------
Xxxxxxx X. XxXxxxx
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EXHIBIT A
SECOND AMENDED AND RESTATED
PROMISSORY NOTE
FOR VALUE RECEIVED, LAST MILE LOGISTICS GROUP, INC., a Florida
corporation ("LMLG"), AND CHESAPEAKE LOGISTICS, LLC, a Maryland limited
liability company ("CL"), jointly and severally promise to pay to the order of
XXXXXXX X. XXXXXXX, an individual (the Payee"), the principal amount of One
Hundred Thousand Dollars ($100,000.00), together with simple interest on the
principal amount of this Second Amended and Restated Promissory Note (the
"Note") from time to time outstanding at the rate of nine percent (9%) per
annum. LMLG and CL are hereinafter collectively referred to as the "Maker."
Interest accrued on the principal amount of this Note from time to time
outstanding shall be payable monthly, commencing on June 30, 2007 and continuing
on the last day of each calendar month thereafter through and including June 30,
2008. The entire principal amount of this Note, together with any and all unpaid
interest accrued thereon, shall be finally due and payable on June 30, 2008 (the
"Maturity Date").
PAYMENT. The principal amount of this Note and any interest accrued
thereon may be prepaid in whole or in part at any time prior to the Maturity
Date, without premium or penalty of any kind; provided, however, that, if any
payment of all or a portion of the principal amount of this Note is to be made
by the Maker prior to the Maturity Date, then the Maker shall give the Payee or
other holder hereof five days prior notice of any such payment. Any amount paid
to the Payee or other holder hereof shall be applied first to interest accrued
to the date of such payment and then to the principal amount of this Note then
outstanding.
EVENTS OF DEFAULT. The occurrence of any one or more of the following
events or conditions shall constitute an "Event of Default" under this Note:
(a) The Maker shall fail for any reason to make any payment, whether of
principal or interest, when due and payable pursuant to the provisions of this
Note;
(b) The Maker shall fail to observe or to perform any or all of its
material agreements, covenants and obligations, or shall otherwise breach,
violate or default under, any material agreement, note, mortgage, lease,
contract, guaranty or other instrument to which it is a party or by which it or
a substantial portion of its properties or assets are bound;
(c) A final judgment shall be entered against the Maker which is not
satisfied or bonded in full within sixty (60) days after the date of the entry
thereof;
(d) Any or all of the assets and properties of the Maker shall be
levied upon, seized or attached;
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(e) The Maker shall (i) admit in writing its inability to pay its debts
generally as they become due, (ii) file a voluntary petition under any
bankruptcy, insolvency or other law for the relief or aid of debtors, (iii) make
any assignment for the benefit of its creditors or (iv) enter into any
composition agreement;
(f) An involuntary petition shall be filed against the Maker under any
bankruptcy, insolvency or other law for the relief or aid of debtors, which
involuntary petition is not dismissed within sixty (60) days after the date of
the filing thereof;
(g) Any court of competent jurisdiction shall find that the Maker is
insolvent or bankrupt;
(h) A receiver or trustee shall be appointed for the Maker or for all
or a substantial portion of its assets and properties; or
(i) The Maker shall cease to conduct its business, adopt any plan of
liquidation, liquidate or dissolve.
REMEDIES. Upon the occurrence of any Event of Default, at the option of
the Payee or other holder hereof:
(1) all amounts outstanding hereunder, whether principal, interest or
otherwise, shall become immediately due and payable;
(2) simple interest shall accrue on the then outstanding principal
amount hereof from the date of any such Event of Default to the date of payment
in full of the then outstanding principal amount hereof at the highest rate of
interest permitted by the laws of the State of Maryland; and
(3) the Maker shall pay all reasonable costs and expenses of collection
of this Note, including without limitation reasonable attorneys' fees, costs and
expenses, paid or incurred by the Payee or other holder hereof, whether paid or
incurred in connection with collection by suit or otherwise.
WAIVERS. The Maker and each endorser of this Note severally waives
demand, protest, presentment and notice of maturity, non-payment or protest and
any and all requirements necessary to hold each of them liable as a maker or
endorser hereof.
The waiver by the Payee or other holder of this Note of the Maker's
prompt and complete performance of, or default under, any provision of this Note
shall not operate nor be construed as a waiver of any subsequent breach or
default and the failure by the Payee or other holder hereof to exercise any
right or remedy which he may possess hereunder shall not operate nor be
construed as a bar to the exercise of any such right or remedy upon the
occurrence of any subsequent breach or default.
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GOVERNING LAW. This Note shall be governed by, and shall be construed
and interpreted in accordance with, the laws of the State of Maryland.
ENTIRE AGREEMENT. This Note constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and arrangements, both oral and
written, between the parties with respect to such subject matter. This Note may
not be modified, amended, altered or changed unless by a written instrument
executed and delivered by the Maker.
BENEFITS; BINDING EFFECT. This Note shall be for the benefit of, and
shall be binding upon, the parties hereto and their respective successors and
assigns.
HEADINGS. The headings contained in this Note are for reference
purposes only and shall not affect in any way the meaning or interpretation of
any or all of the provisions hereof.
REPLACEMENT AND SUBSTITUTION. This Note is given in replacement of and
in substitution for that certain Promissory Note dated October 2, 2006 made by
the Maker to the order of the Payee.
IN WITNESS WHEREOF, the Maker, by and through its undersigned officer
thereunto duly authorized, has executed and delivered this Note as of June 18,
2007.
LAST MILE LOGISTICS GROUP, INC. CHESAPEAKE LOGISTICS, LLC
By_______________________________ By_________________________________
Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx,
Chief Executive Officer Chief Executive Officer
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EXHIBIT B
NEITHER THIS WARRANT NOR THE SHARES UNDERLYING THIS WARRANT MAY BE SOLD,
ASSIGNED, TRANSFERRED, CONVEYED, PLEDGED, HYPOTHECATED, ENCUMBERED OR OTHERWISE
DISPOSED OF UNLESS (A) THEY ARE COVERED BY A REGISTRATION STATEMENT OR
POST-EFFECTIVE AMENDMENT THERETO, EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR (B) SUCH SALE, ASSIGNMENT, TRANSFER, CONVEYANCE, PLEDGE,
HYPOTHECATION, ENCUMBRANCE OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF
SECTION 5 OF THAT ACT.
LAST MILE LOGISTICS GROUP, INC.
AMENDED AND RESTATED WARRANT TO PURCHASE
1,000,000 SHARES OF COMMON STOCK
FOR VALUE RECEIVED, XXXXXXX X. XXXXXXX, an individual, or his
transferees or assigns (the "Holder"), is entitled to purchase, subject to the
provisions hereof, from LAST MILE LOGISTICS GROUP, INC., a Florida corporation
(the "Issuer"), One Million (1,000,000) fully paid, validly issued and
non-assessable shares of common stock (the "Common Stock"), of the Issuer (the
"Shares"), at an exercise price equal to Ten Cents ($0.10) per share. The right
to purchase the Shares under this Warrant is exercisable, in whole or in part,
at any time subsequent to the date hereof, but prior to 5:00 p.m., Eastern time,
on June 30, 2008.
The Shares deliverable upon exercise of this Warrant (including any
adjusted number of Shares issuable pursuant to the provisions of this Warrant)
are hereinafter sometimes referred to as "Warrant Shares" and the exercise price
per Share in effect at any time and as adjusted from time to time is hereinafter
sometimes referred to as the "Exercise Price." This Warrant and all warrants
issued upon transfer, division or in substitution thereof are hereinafter
sometimes referred to as the "Warrants."
1. EXERCISE OF WARRANT.
(a) This Warrant may be exercised by presentation and surrender to
the Issuer at its principal office, or at the office of its principal stock
transfer agent, with the Purchase Form annexed hereto duly executed and
accompanied by payment of the Exercise Price for the Warrant Shares. Payment
shall be made by wire transfer or by certified or official bank check.
(b) As soon as practicable after the exercise of this Warrant, and
in any event within three New York Stock Exchange, Inc. trading days, the Issuer
shall issue and deliver to the Holder a certificate or certificates representing
the number of Shares issuable upon the exercise of this Warrant (or such lesser
number as shall be indicated on the Purchase Form), registered in the name of
the Holder or its designee. Such certificate(s) shall bear a restrictive legend
restricting the transferability of such Shares under the Securities Act of 1933,
as amended (the "Act"), in the event the Shares have not been registered under
the Act prior to their issuance.
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(c) If this Warrant is exercised only in part, the Issuer also shall
issue and deliver to the Holder a new Warrant, substantially in the form of this
Warrant, covering the number of Warrant Shares which then are issuable
hereunder.
(d) Upon receipt by the Issuer of this Warrant at its office, or by
the principal stock transfer agent of the Issuer at its office, in proper form
for exercise, the Holder shall as of that date deemed to be the holder of record
of the number of Warrant Shares specified in the Purchase Form.
(e) The Issuer shall pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of Warrant
Shares on exercise of this Warrant.
2. RESERVATION OF SHARES. The Issuer shall at all times reserve and
keep available, free from pre-emptive rights, out of its authorized but unissued
capital stock, for issuance on exercise of this Warrant, such number of Shares
as shall be required for issuance and delivery upon exercise of this Warrant.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant.
4. TRANSFER OF WARRANT. This Warrant may be transferred in whole or in
part only in accordance with the terms of the restrictive legend appearing on
the first page of this Warrant.
5. LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the Issuer of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Issuer will execute and deliver a new Warrant of like
tenor and date. Any such new Warrant executed and delivered shall not constitute
an additional contractual obligation on the part of the Issuer, whether or not
this Warrant so lost, stolen, destroyed, or mutilated shall be at any time
enforceable by anyone.
6. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Issuer, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Issuer except to the extent set forth herein.
7. ANTI-DILUTION RIGHTS.
(a) If at any time after the date hereof the Issuer declares or
authorizes any dividend (other than a cash dividend), stock split, reverse stock
split, combination, exchange of Shares, or there occurs any recapitalization,
reclassification (including any consolidation or merger), sale or acquisition of
property or stock, reorganization or liquidation, or if the outstanding Shares
are changed into the same or a different number of Shares of the same or another
class or classes of stock of the Issuer, then the Issuer shall cause effective
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provision to be made so that the Holder shall, upon exercise of this Warrant
following such event, be entitled to receive the number of shares of stock or
other securities or the cash or property of the Issuer (or of the successor
corporation or other entity resulting from any consolidation or merger) to which
the Warrant Shares (and any other securities) deliverable upon the exercise of
this Warrant would have been entitled if this Warrant had been exercised
immediately prior to the earlier of (i) such event and (ii) the record date, if
any, set for determining the stockholders entitled to participate in such event,
and the Exercise Price shall be adjusted appropriately so that the aggregate
amount payable by the Holder hereof upon the full exercise of this Warrant
remains the same. The Issuer shall not effect any recapitalization,
reclassification (including any consolidation or merger) unless, upon the
consummation thereof, the successor corporation or entity shall assume by
written instrument the obligation to deliver to the Holder hereof the shares of
stock, securities, cash or property that the holder shall be entitled to acquire
in accordance with the foregoing provisions, which instrument shall contain
provisions calculated to ensure for the Holder, to the greatest extent
practicable, the benefits provided for in this Warrant.
(b) In the event the Issuer shall distribute to all of the holders
of shares of the Issuer's Common Stock evidences of indebtedness or rights,
options or warrants or other securities exercisable or convertible into or
exchangeable for shares of the Issuer's Common Stock, the Holder shall receive
the indebtedness or securities which would be receivable in such transaction by
a holder or holders of the number of shares of the Issuer's Common Stock into
which the Warrant, as applicable, entitled the Holder thereof to purchase
immediately prior to such distribution.
(c) If pursuant to the provisions of this paragraph (g) the Holder
would be entitled to receive shares of stock or other securities upon the
exercise of this Warrant in addition to the Shares issuable upon exercise of
this Warrant, then the Issuer shall at all times reserve and keep available
sufficient shares of other securities to permit the Issuer to issue such
additional shares or other securities upon the exercise of this Warrant.
(d) The Issuer shall at any time if so requested by the Holder
furnish a written summary of all adjustments made pursuant to this paragraph (g)
promptly following any such request.
9. SURVIVAL. Any obligation of the Issuer under this Warrant, the
complete performance of which may require performance beyond the term of this
Warrant, shall survive the expiration of such term.
10. AMENDMENTS AND WAIVERS. The respective rights and obligations of
the Issuer and the Holder may be modified or waived only by a writing executed
by the party against whom the amendment or waiver is to be enforced.
11. GOVERNING LAW. This Warrant shall be governed by, and shall be
construed and interpreted in accordance, with the laws of the State of Florida,
without giving effect to the principles of conflicts of laws thereof.
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12. ENTIRE AGREEMENT. This Warrant, together with the exhibits attached
hereto, constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior agreements, understandings,
negotiations and arrangements, both oral and written, between the parties with
respect to such subject matter.
13. BENEFITS; BINDING EFFECT. This Warrant shall be for the benefit of,
and shall be binding upon, the parties hereto and their respective heirs,
personal representatives, executors, legal representatives, successors and
assigns.
14. HEADINGS. The headings contained in this Warrant are for reference
purposes only and shall not affect in any way the meaning or interpretation of
any or all of the provisions hereof.
15. REPLACEMENT AND SUBSTITUTION. This Warrant is given in replacement
of and in substitution for that certain Warrant dated October 2, 2006 issued by
the Issuer to the Holder.
IN WITNESS WHEREOF, the Issuer has caused this Warrant to be executed
and delivered by its undersigned officer thereunto duly authorized as of June
18, 2007.
LAST MILE LOGISTICS GROUP, INC.
By: _____________________________
Xxxxxx X. Xxxxx,
Chief Executive Officer
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PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the within
Warrant as to ________ Shares and hereby makes payment of $________ in payment
of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF COMMON STOCK:
Name:_________________________________________________
(Please typewrite or print in block letters)
Address:______________________________________________
______________________________________________
Signature:____________________________________________
MEDALLION SIGNATURE GUARANTY:
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ASSIGNMENT FORM
FOR VALUE RECEIVED, ___________________ hereby sells, assigns and
transfer unto
Name:
________________________________________________________________________________
(Please typewrite or print in block letters)
Address:
________________________________________________________________________________
the right to purchase Shares represented by this Warrant to the extent of
____________Shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint _________ Attorney, to transfer the same on
the books of the Issuer with full power of substitution in the premises.
Dated: _________________
Signature: _______________________________________
MEDALLION SIGNATURE GUARANTY:
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