THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"AGREEMENT") is made and entered into as of September 30, 1997, by and between
International Logistics Limited, a Delaware corporation (the "COMPANY"), and
each of the Holders listed on EXHIBIT A hereto (singularly a "HOLDER" and
collectively, the "HOLDERS").
W I T N E S S E T H
WHEREAS, each of the Holders have either purchased shares of the
Common Stock (as defined herein) of the Company or were granted Warrants (as
defined herein) to purchase shares of the Common Stock of the Company; and
WHEREAS, the Company and the Holders deem it to be in their best
interests to provide for continuity in the control and operation of the Company
to regulate certain of their rights in connection with their interests in the
Company and to restrict the sale, assignment, transfer, encumbrance or other
disposition of the Securities (as defined herein) to be issued to the Holders as
contemplated hereby, and desire to enter into this Agreement in order to
effectuate those purposes;
NOW, THEREFORE, in consideration of the agreements and mutual
covenants set forth herein, the parties agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following
terms have the following meanings:
"ACCREDITED INVESTOR" shall have the meaning set forth for such term
in Regulation D under the Securities Act.
"ACCREDITED OFFEREE" shall have the meaning set forth in SECTION 5(a).
"ACQUIROR" has the meaning assigned to such term in SECTIONS 6(b) AND
7.
"AFFILIATE" of a Holder means any Person which directly or indirectly
controls, is controlled by, or is under common control with such Holder.
"Control," "controlled by" and "under common control with" means direct or
indirect possession of the power to direct or cause the direction of management
or policies (whether through ownership of voting securities, by contract or
otherwise); PROVIDED that control shall be conclusively presumed
when any Person or entity or affiliated group directly or indirectly owns ten
percent (10%) or more of the securities having ordinary voting power for the
election of a majority of the directors of a corporation.
"AGREEMENT" means this Agreement, as the same shall be amended from
time to time.
"BANKS" mean, collectively, ING and Paribas.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means a day other than Saturday, Sunday or any other
day on which banks located in the State of Illinois are authorized or obligated
to close.
"CHARTER" OR "CERTIFICATE OF INCORPORATION" means the Amended and
Restated Certificate of Incorporation of the Company as in effect immediately
upon the Closing Date.
"CLOSING DATE" means November 7, 1996.
"COMMON STOCK" means the Company's Common Stock, $0.001 par value per
share.
"COMPANY" has the meaning assigned to such term in the preamble.
"COMPANY ACCEPTANCE NOTICE" has the meaning assigned to such term in
SECTION 4(d)(i).
"COMPANY TRANSFEREE" has the meaning assigned to such term in SECTION
5(a).
"COMPANY TRANSFER NOTICE" has the meaning assigned to such term in
SECTION 5(a).
"COMPANY TRANSFER SECURITIES" has the meaning assigned to such term in
SECTION 5(a).
"EMPLOYEE STOCK PURCHASE PLAN" means the employee stock purchase plans
adopted by the Board of Directors on May 1, 1996 and March 3, 1997.
"EXECUTIVE COMMITTEE" shall have the meaning ascribed to such term in
SECTION 9(b).
"FAIR MARKET VALUE" shall mean the fair market value of the Company's
Common Stock as determined by the Executive
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Committee on a fully-distributed basis without regard to liquidity or size
relative to the number of shares outstanding; PROVIDED that such valuation shall
ascribe value to Warrants as the amount, if any, by which the value of the
Common Stock underlying the warrant shall exceed the aggregate exercise price
related thereto.
"FAMILY MEMBER" means any Holder's spouse, siblings, children,
children's spouses, grandchildren or their spouses or any trusts for the benefit
of any of the foregoing.
"FINANCIAL DEFAULT" shall mean with respect to the Company or any
Subsidiary, any of the following: (i) the occurrence of a default under any
indebtedness with a principal amount in excess of $20 million (either
individually or in the aggregate) to the extent that such default is not cured
or waived within thirty (30) days; (ii) the acceleration of any indebtedness
with a principal amount in excess of $10 million (either individually or in the
aggregate) to the extent not paid or rescinded within five (5) days; (iii) the
imposition of any final and non-appealable judgments in excess of $10 million
(either individually or in the aggregate) to the extent not paid or rescinded
within five (5) days; or (iv) the filing of any voluntary or involuntary
bankruptcy petition with respect to the Company or any Subsidiary to the extent
not withdrawn within five (5) days.
"FINANCIAL DEFAULT DISAGREEMENT" shall mean that, upon the occurrence
of a Financial Default, the Board of Directors is unable to agree on the
Company's course of action in response to a Financial Default.
"HOLDERS" has the meaning assigned to such term in the preamble.
"ING" means ING Capital (U.S.) Corporation.
"INITIAL PUBLIC OFFERING" means the first underwritten public offering
of Common Stock by the Company pursuant to a registration of shares under the
Securities Act on a Form S-1 Registration Statement (or equivalent or successor
form).
"INTER VIVOS TRANSFEREE" has the meaning assigned to such term in
SECTION 3(d).
"MANAGEMENT" means each Person set forth on EXHIBIT B attached hereto,
as the same may be amended from time to time.
"MATRIX ACCEPTANCE NOTICE" has the meaning assigned to such term in
SECTION 4(d)(ii).
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"MATRIX HOLDERS" has the meaning assigned to such term in SECTION
4(d)(ii).
"MATRIX OFFER" has the meaning assigned to such term in SECTION
4(d)(ii).
"XXXXX" means Xxxxxxx X. Xxxxx, Xx. and any Xxxxx Affiliate.
"XXXXX AFFILIATE" shall mean any (i) bona fide officer, director,
shareholder or employee of W.E. Xxxxx & Company reasonably acceptable to the
Company, (ii) Family Member of any of the foregoing individuals and (iii)
partnership, corporation, trust or other entity controlled by Xxxxxxx X. Xxxxx,
Xx.
"OCM" means OCM Principal Opportunities Fund, L.P., a Delaware limited
partnership.
"OCM AFFILIATES" means any investor in or any employee of OCM or
Oaktree Capital Management, LLC ("OAKTREE"), a California limited liability
company, or in any company, joint venture, limited liability company,
association or partnership of which OCM or Oaktree, is a shareholder, manager or
general partner, as the case may be.
"OCM ENTITY" means either or both of TCW and OCM, as the context
indicates.
"OCM ENTITY ACCEPTANCE NOTICE" has the meaning assigned to such term
in SECTION 4(c).
"OCM ENTITY FUNDING DEFAULT" means a circumstance whereby (i) an OCM
Entity and WES&S have entered into a commitment to purchase Securities of the
Company pursuant to a purchase agreement; (ii) such OCM Entity is in breach of
its commitment to purchase such Securities; and (iii) WES&S ultimately completes
its purchase under such purchase agreement.
"OCM ENTITY OFFER" has the meaning assigned to such term in
SECTION 4(b).
"OCM ENTITY PURCHASE DEFAULT" means an OCM Entity is in breach of its
purchase obligation under an OCM Entity Acceptance Notice in connection with
certain transfers of the WES&S Shares as set forth in SECTION 4.
"OCM ENTITY SHARES" means all the Securities now and hereafter held by
OCM, any OCM Affiliate, TCW or any TCW Affiliate.
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"OCM ENTITY TRANSFER TERMINATION EVENT" means the first to occur of
(i) a Qualified Public Offering, (ii) a Sell-Down Event, (iii) a WES&S Purchase
Default, (iv) a WES&S Funding Default or (v) May 2, 2002.
"OFFER TO SELL" has the meaning assigned to such term in SECTION 5(b).
"OFFEREE" means, for the purposes of SECTION 4 hereof: (i) with
respect to any proposed Transfer by an OCM Entity: WES&S; (ii) with respect to
any proposed Transfer by WES&S: each OCM Entity; (iii) with respect to any
proposed Transfer by each of Management, Xxxxx or the Banks: the Company, each
OCM Entity and WES&S, as applicable, and (iv) for the purposes of
SECTION 4(d)(ii), with respect to any proposed Transfer by a Matrix Holder; the
other nontransferring Matrix Holders.
"PARIBAS" means Banque Paribas and Paribas North America, Inc.
"PERMITTED TRANSFER" has the meaning assigned to such term in SECTION
3.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof.
"PRO RATA" shall mean, with respect to any offer of shares of Common
Stock or securities exercisable or convertible into shares of Common Stock, an
offer based on the relative percentages of Securities then held by or issuable
to all of the Holders to whom such offer is made.
"PUBLIC OFFERING" means any offering of Common Stock to the public,
including the Initial Public Offering, either on behalf of the Company or any of
its stockholders, pursuant to an effective registration statement under the
Securities Act.
"PUBLIC TRANSFEREES" has the meaning assigned to such term in SECTION
2(c).
"QUALIFIED PUBLIC OFFERING" means a Public Offering wherein the
aggregate offering proceeds are not less than $30,000,000 (determined based on
gross offering price paid to the Company at the closing of each such transaction
for the offered securities).
"QUALIFIED SALE" shall mean (i) any sale of all or substantially all
of the assets of the Company or (ii) any sale,
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merger or liquidation of the Company with or into any entity other than to or
with OCM, TCW, WES&S, an OCM Affiliate, a TCW Affiliate or a WES&S Affiliate
whereby such entity or the holders of a majority of the voting stock thereof
shall obtain (A) at least a majority of the voting stock of the surviving entity
and (B) the right to elect a majority of the surviving entity's board of
directors.
"RE-OFFER ACCEPTANCE NOTICE" has the meaning assigned to such term in
SECTION 4(d)(i).
"RE-OFFER NOTICE" has the meaning assigned to such term in SECTION
4(d)(i).
"REFUSAL NOTICE" has the meaning assigned to such term in SECTION
4(a).
"REFUSAL SECURITIES" has the meaning assigned to such term in SECTION
4(a).
"REFUSAL TRANSFEREE" has the meaning assigned to such term in SECTION
4(a).
"SECURITIES" shall mean the shares of Common Stock and any securities
convertible or exercisable into shares of Common Stock, and whenever an amount
of Securities is calculated or used in any provision of this Agreement,
convertible or exercisable securities shall be counted as the number of shares
of Common Stock issuable upon such conversion or exercise.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SELL-DOWN EVENT" means an event, subject to SECTIONS 2, 3 AND 4,
whereby WES&S sells or Transfers Securities (or an economic "capital interest"
therein, whether directly or indirectly) to any Person; PROVIDED, HOWEVER, that
the following Transfers shall not constitute a Sell-Down Event: (i) any Transfer
made to a WES&S Affiliate or (ii) any Transfer made to any Person if (A) WES&S
retains voting control of the Securities transferred to such Person and (B) the
cumulative number of Securities so transferred (or the economic capital interest
therein) by WES&S shall not exceed the Threshold Amount.
"SELLING HOLDERS" has the meaning assigned to it in SECTIONS 6(b) & 7.
"SIMON ENTITY" means Logistical Simon, L.L.C., a Delaware limited
liability company, WESINVEST, Inc., a Delaware
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corporation or Xxxxxxx X. Xxxxx & Sons, L.L.C., a Delaware limited liability
company.
"SUBSIDIARY" means any entity at least fifty percent (50%) owned or
controlled either directly or indirectly by the Company or any of its
Subsidiaries.
"TCW" means TCW Special Credits Fund V - The Principal Fund, a
California limited partnership,
"TCW AFFILIATE" means any investor in or any employee of TCW, TCW
Asset Management Company, a California corporation ("TAMCO"), Trust Company of
the West, a California trust company ("TRUSTCO") or Oaktree Capital Management,
LLC ("OAKTREE"), a California limited liability company, or in any company,
joint venture, limited liability company, association or partnership of which
TCW, TAMCO, Trustco or Oaktree, is a shareholder, manager or general partner, as
the case may be.
"THRESHOLD AMOUNT" means thirty percent (30%) of the shares held by
WES&S as of the Closing Date (excluding for the purpose of this calculation any
shares owned by WES&S to the extent received upon the exercise of its Warrants
or otherwise acquired from parties other than the Company).
"TRADING PRICE" means the trading price for each trading day: (a) if
the Common Stock is traded on a national securities exchange, its last reported
sale price on the preceding Business Day on such national securities exchange
or, if there was no sale on that day, the last reported sale price on such
national securities exchange on the next preceding Business Day on which there
was a sale, all as made available over the Consolidated Last Sale Reporting
System of the CTA Plan (the "CLSRS") or, if the Common Stock is not then
eligible for reporting over the CLSRS, its last reported sale price on the
preceding Business Day on such national securities exchange or, if there was no
sale on that day, on the next preceding Business Day on which there was a sale
on such exchange or (b) if the principal market for the Common Stock is the
over-the-counter market, but the Common Stock is not then eligible for reporting
over the CLSRS, but the Common Stock is quoted on the National Association of
Securities Dealers Automated Quotations System ("NASDAQ"), the last sale price
reported on NASDAQ on the preceding Business Day or, if the Common Stock is an
issue for which last sale prices are not reported on NASDAQ, the closing bid
quotation on such day, but in each of the next preceding two cases, if the
relevant NASDAQ price or quotation did not exist on such day, then the price or
quotation on the next preceding Business Day in which there was such a price or
quotation.
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"TRANSFER" has the meaning assigned to such term in SECTION 2(a).
"TRANSFER NOTICE" has the meaning assigned to such term in
SECTIONS 6(b) & 7.
"TRANSFEROR" has the meaning assigned to such term in SECTION 4(a).
"VOTING TERMINATION EVENT" has the meaning assigned to such term in
SECTION 8(a).
"WARRANT(S)" means the Warrants exercisable into the Common Stock of
the Company at either a fixed or variable priced exercise rate.
"WES&S" means Logistical Simon, L.L.C., a Delaware limited liability
company, and for purposes of Sections 4(b) and 4(d)(i) only and only in the
event that WES&S offers to acquire an amount of Refusal Securities, includes
Xxxxx; PROVIDED, HOWEVER, that should WES&S and Xxxxx each offer to acquire an
amount of Refusal Securities (as defined in Section 4(a) hereof) that is
oversubscribed pursuant to such Sections 4(b) and 4(d)(i), the shares to be so
purchased shall be allocated to each of WES&S and Xxxxx Pro-Rata based upon the
relative number of Securities owned by each entity as of such date.
"WES&S AFFILIATE" means any Simon Entity or any partnership, limited
liability company or corporation that directly or indirectly, through one or
more intermediaries, has control of, is controlled by or is under common control
with (i) any Simon Entity or (ii) any shareholders, partner or member of a Simon
Entity or any such shareholder's, partner's or member's spouse, siblings,
children, children's spouses, grandchildren or their spouses or any trusts for
the benefit of any of the foregoing.
"WES&S ACCEPTANCE NOTICE" has the meaning assigned to such term in
SECTION 4(b).
"WES&S FUNDING DEFAULT" means a circumstance whereby (i) an OCM
Entity and WES&S have entered into a commitment to purchase the Securities of
the Company pursuant to a purchase agreement; (ii) WES&S is in breach of its
commitment to purchase such Securities; and (iii) an OCM Entity ultimately
completes its purchase under such purchase agreement.
"WES&S OFFER" has the meaning assigned to such term in SECTION 4(c).
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"WES&S PURCHASE DEFAULT" means WES&S is in breach of its purchase
obligation under a WES&S Acceptance Notice in connection with certain transfers
of the OCM Entity Shares as set forth in SECTION 4.
"WES&S SHARES" means all the Securities now and hereafter held by
WES&S and any WES&S Affiliate.
"WES&S TRANSFER TERMINATION EVENT" means the first to occur of (i) a
Qualified Public Offering, (ii) an OCM Entity Purchase Default, (iii) an OCM
Entity Funding Default, (iv) the date on which the OCM Entities, in the
aggregate, own less than fifty percent (50%) of the total number of shares held
by the OCM Entities as of the Closing Date or (v) May 2, 2002.
SECTION 2. PROVISIONS REGARDING TRANSFER.
(a) GENERAL RESTRICTIONS. So long as this Agreement shall remain in
force, none of the Securities may be issued, sold, assigned, transferred, given
away or in any way disposed of (any of the foregoing being hereinafter referred
to as a "TRANSFER") unless:
(i) the Person in whose favor such Transfer is made shall deliver
to the Company a written acknowledgment that the Securities to be transferred
are subject to this Agreement and that such Person and such Person's successors
in interest are bound hereby on the same terms as the Transferor of such
Securities, but prior to any such Transfer, the Transferor shall give the
Company (1) notice describing the manner and circumstances of the proposed
Transfer and (2) if reasonably requested by the Company, a written opinion in
form and substance reasonably satisfactory to legal counsel of the Company to
the effect that the proposed Transfer may be effected without registration under
the Securities Act or any applicable state law;
(ii) such Transfer shall be made in compliance with the
provisions of this Agreement, the Employee Stock Purchase Plan and the
Management subscription agreements; or
(iii) such Transfer shall be made pursuant to a public offering
registered under the Securities Act and in accordance with applicable state law
or pursuant to Rule 144 under the Securities Act.
Any attempted Transfer other than in accordance with this Agreement shall be
void, and the Company shall refuse to recognize any such Transfer and shall not
reflect on its records
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any change in record ownership of the Securities pursuant to any such attempted
Transfer.
(b) MECHANICS OF TRANSFER. The closing of any Transfer of
Securities (other than pursuant to SECTION 2(a)(iii) above) shall take place
at the principal executive offices of the Company. Any Holder who Transfers
the Securities shall (i) take all such actions and execute and deliver all
such documents as may be necessary or reasonably requested by the Company in
order to consummate the Transfer of such Securities and (ii) pay to the
Company such amounts as may be required for any applicable stock transfer
taxes.
(c) PLEDGE AND HYPOTHECATION PROHIBITED. Prior to a Qualified Public
Offering, no Holder (other than any Persons not a party to this agreement who
acquire shares pursuant to a registration statement ("PUBLIC TRANSFEREES"))
shall in any manner pledge, hypothecate or encumber, or grant options with
respect to, any Securities held by such Holder, unless such Holder obtains the
prior (i) written approval of the Executive Committee and (ii) written agreement
of the designated assignee or secured party to acknowledge, accept and agree to
be bound by the terms of this Agreement.
SECTION 3. TRANSFERS NOT SUBJECT TO RIGHT OF FIRST REFUSAL. The
following Transfers (each a PERMITTED TRANSFER") shall not be subject to the
rights of first refusal set forth in SECTION 4 hereof:
(a) CERTAIN TRANSFERS BY OCM ENTITY. Subject to the restrictions on
Transfer set forth in SECTION 2, an OCM Entity or any subsequent holder of the
OCM Entity Shares, may Transfer or grant participation in any or all of the OCM
Entity Shares to (i) any OCM Affiliate or a TCW Affiliate in connection with an
in-kind distribution, (ii) any Person pursuant to a demand or piggyback
registration or (iii) any other Person to the extent the aggregate number of OCM
Entity Shares so transferred shall not exceed thirty percent (30%) of the
aggregate number of OCM Entity Shares purchased by the OCM Entities, in the
aggregate, from the Company on the Closing Date and subsequent thereto. Any OCM
Entity Shares, or interest therein, so transferred may subsequently be
transferred back to an OCM Entity and upon such reacquisition such OCM Entity
Shares shall be subject to this Agreement; PROVIDED, HOWEVER, that any OCM
Entity Shares so reacquired by an OCM Entity shall not be subject to this
Agreement to the extent that an OCM Entity purchased such OCM Entity Shares
pursuant to a registration statement or from a Public Transferee.
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(b) CERTAIN TRANSFERS BY WES&S. Subject to the restrictions on
Transfer set forth in SECTION 2, WES&S or any subsequent holder of the WES&S
Shares, may Transfer or grant participation in any or all of the WES&S Shares to
(i) any Person to the extent that such Transfer would not constitute a Sell-Down
Event or (ii) any other Person pursuant to a demand or piggyback registration.
Any WES&S Shares, or interest therein, so transferred may subsequently be
transferred back to WES&S and upon such reacquisition such WES&S Shares shall be
subject to this Agreement; PROVIDED, HOWEVER, that any WES&S Shares so
reacquired by WES&S shall not be subject to this Agreement to the extent that
WES&S purchased such WES&S Shares pursuant to a registration statement or from a
Public Transferee.
(c) CERTAIN TRANSFERS BY MANAGEMENT, XXXXX OR THE BANKS. Each of
Management, Xxxxx, or the Banks, may Transfer any or all of their respective
shares of Common Stock to any Person in connection with a piggyback
registration. Subject to the restrictions on Transfer set forth in SECTION 2,
Xxxxx may transfer any or all of his Securities to a Xxxxx Affiliate. Any
shares of Common Stock, or interest therein, so transferred by a Holder pursuant
to this SECTION 3(c) may subsequently be transferred back to such Holder and
upon such reacquisition such shares of Common Stock shall be subject to this
Agreement; PROVIDED, HOWEVER, that any shares of Common Stock so reacquired by
such Holder shall not be subject to this Agreement to the extent that such
Holder purchased such shares of Common Stock pursuant to a registration
statement or from a Public Transferee.
(d) INTER VIVOS TRANSFERS. Any Holder who is a natural person may
transfer, by INTER VIVOS Transfer, any or all of his or her Securities to any
other natural person who is a Family Member or to a trust primarily for the
benefit of such natural person who is a Family Member or such Holder (an "INTER
VIVOS TRANSFEREE"); PROVIDED that such Holder retains all voting rights with
respect to such Securities, and; PROVIDED, FURTHER, that no Holder who is a
natural person may make an INTER VIVOS transfer to any person unless such Holder
shall comply with the provisions of SECTION 2. Subject to the restrictions of
SECTION 2, any Securities transferred pursuant to this SECTION 3(d) may
subsequently be transferred back to such Holder.
SECTION 4. RIGHT OF FIRST REFUSAL. Each Holder agrees that, except
as provided in SECTIONS 3 AND 5 hereof, such Holder will not transfer any
Securities, or any right, title or interest therein, unless such Holder shall
have first made the offers to sell set forth in this SECTION 4.
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(a) REFUSAL NOTICE. A Holder that desires in good faith to Transfer
any Securities (the "TRANSFEROR") shall deliver a written notice of such intent
(the "REFUSAL NOTICE") to each Offeree. The Refusal Notice shall contain (i) a
description of the proposed Transfer transaction and the terms thereof including
the number and type of Securities (E.G., Common Stock or Warrants) proposed to
be transferred (collectively, the "REFUSAL SECURITIES"), (ii) the name of each
person to whom or in favor of whom the proposed Transfer is to be made (the
"REFUSAL TRANSFEREE") and (iii) a description of the consideration to be
received by the Transferor upon Transfer of the Refusal Securities; PROVIDED,
HOWEVER, that if any Holder desires to Transfer any Securities pursuant to Rule
144 of the Securities Act, such Holder shall not be required to satisfy
subsection (a)(ii) herein. The Refusal Notice shall be accompanied by a copy of
the third party written offer (for purposes of this SECTION 4, an executed
letter of intent stating the terms of such offer, or incorporating by reference
therein a separate summary of terms which shall be deemed a written offer). No
offer (covered by this SECTION 4) to Transfer to a Transferee shall be
permissible, unless the consideration for the Transfer involved consists solely
of cash.
(b) TRANSFERS BY OCM ENTITY. Prior to an OCM Entity Transfer
Termination Event, if an OCM Entity intends in good faith to sell or otherwise
Transfer any OCM Entity Shares to any Person, such OCM Entity shall deliver to
WES&S, concurrently with the delivery of the Refusal Notice, a written offer to
sell (the "OCM ENTITY OFFER") all, but not less than all, of such Refusal
Securities which are the subject of the Refusal Notice. Each OCM Entity Offer
shall contain the same terms and conditions, and shall be for the same
consideration, as described in the Refusal Notice. Within five (5) Business
Days after the Refusal Notice is delivered to WES&S, WES&S may, by written
notice delivered to such OCM Entity (a "WES&S ACCEPTANCE NOTICE"), accept the
offer to acquire all, but not less than all, of the Refusal Securities as
described in the Refusal Notice. Transfers of Securities to WES&S pursuant to
offers made and accepted in accordance with this SECTION 4 shall occur
simultaneously on a Business Day not more than thirty (30) days after the date
on which the WES&S Acceptance Notice is delivered to such OCM Entity. If WES&S
breaches its obligation to purchase the Refusal Securities which are the subject
of the Refusal Notice within thirty (30) days of the date on which the WES&S
Acceptance Notice is delivered to such OCM Entity, (i) WES&S shall forfeit (a)
any and all future rights of first refusal with respect to the OCM Entity Shares
and (b) any and all future rights of first refusal with respect to any proposed
Transfer of Securities pursuant to SECTION 4(d) hereof, and (ii) except as
provided in SECTION 4(f) hereof such failure shall constitute a WES&S Purchase
Default.
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(c) TRANSFERS BY WES&S. Prior to a WES&S Transfer Termination Event,
if WES&S intends in good faith to sell or otherwise Transfer any WES&S Shares to
any Person, WES&S shall deliver to each OCM Entity, concurrently with the
delivery of the Refusal Notice, a written offer to sell (the "WES&S OFFER") all,
but not less than all, of such Refusal Securities which are the subject of the
Refusal Notice. Each WES&S Offer shall contain the same terms and conditions,
and shall be for the same consideration, as described in the Refusal Notice.
Within five (5) Business Days after the Refusal Notice is delivered to each OCM
Entity, each OCM Entity may, by written notice delivered to WES&S (an "OCM
ENTITY ACCEPTANCE NOTICE"), accept the offer to acquire all, but not less than
all, of the Refusal Securities as described in the Refusal Notice; PROVIDED
HOWEVER, that if each OCM Entity elects to submit an OCM Entity Acceptance
Notice, the Securities to be so purchased shall be allocated to each OCM Entity
Pro-Rata based upon the relative number of Securities owned by each entity as of
such date or on such other basis as may be agreed upon by the OCM Entities.
Transfers of Securities to an OCM Entity pursuant to offers made and accepted in
accordance with this SECTION 4 shall occur simultaneously on a Business Day not
more than thirty (30) days after the date on which the OCM Entity Acceptance
Notice is delivered to WES&S. If either OCM Entity breaches its obligation to
purchase the Refusal Securities which are the subject of the Refusal Notice
within thirty (30) days of the date on which the OCM Entity Acceptance Notice is
delivered to WES&S, (i) both OCM Entities shall forfeit (a) any and all future
rights of first refusal with respect to the WES&S Shares and (b) any and all
future rights of first refusal with respect to any proposed Transfer of
Securities pursuant to SECTION 4(d) hereof, and (ii) except as provided in
SECTION 4(f) hereof such failure shall constitute an OCM Entity Purchase
Default.
(d) TRANSFERS BY HOLDERS. (i) Prior to a Qualified Public Offering
(and in the case of Xxxxx, if earlier, May 2, 2002), if any Holder (other than
an OCM Entity and WES&S), subject to the transfer restrictions, if any, as set
forth in the terms of such Holder's Warrant, intends in good faith to sell or
otherwise Transfer any Securities to any Person, such Holder shall deliver to
the Company, concurrently with the delivery of the Refusal Notice, a written
offer to sell (the "COMPANY OFFER") all, but not less than all, of such Refusal
Securities which are the subject of the Refusal Notice; PROVIDED, HOWEVER that
if any such Holder intends to Transfer any Securities to the Company pursuant to
the terms of such Holder's employment or subscription agreement, such Holder
shall not be required to deliver a Refusal Notice pursuant to this subsection
(d). Each Company Offer shall contain the same terms and conditions, and shall
be for the same cash consideration, as described in the Refusal Notice. Within
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five (5) Business Days after the Refusal Notice is delivered to the Company, the
Company may, by written notice delivered to such proposed Transferor (a "COMPANY
ACCEPTANCE NOTICE"), accept the offer to acquire all, but not less than all, of
the Refusal Securities as described in the Refusal Notice. If the Company does
not return the Company Acceptance Notice within the required five (5) Business
Day period, the proposed Transferor shall deliver to each OCM Entity and WES&S,
concurrently with the delivery of a Refusal Notice ("RE-OFFER NOTICE") a written
offer to sell (the "RE-OFFER") all but not less than all of such Refusal
Securities which are the subject of the Refusal Notice; PROVIDED, HOWEVER, that
the proposed Transferor shall not be obligated to deliver a Re-Offer Notice to
an OCM Entity or WES&S to the extent that their respective rights of first
refusal have expired as set forth in SECTIONS 4(b) AND (c) hereof. Within five
(5) Business Days after the Re-Offer Notice is delivered to each OCM Entity and
WES&S, each OCM Entity and WES&S may, by written notice delivered to such
proposed Transferor (a "RE-OFFER ACCEPTANCE NOTICE"), accept the offer to
acquire all, but not less than all, of the Refusal Securities as described in
the Re-Offer Notice. Each of the Company, each OCM Entity and WES&S, as
applicable, shall be required to complete the purchase of the Refusal Securities
which are the subject of the applicable acceptance notice referred to in this
SECTION 4(d)(i) within thirty (30) days of receipt of the applicable acceptance
notice by the proposed Transferor. If more than one of WES&S and the OCM
Entities elect to submit a Re-Offer Acceptance Notice, the Securities to be so
purchased shall be allocated to each entity which has submitted a Re-Offer
Acceptance Notice Pro-Rata based upon the relative number of Securities owned by
each such entity as of such date.
(ii) Prior to complying with SECTION 4(d)(i) above, if any of Xxxxxxx
Xxxxxxxxxx, Xxxxxx X. Xxxxx, Xxxxx Xxxxxxxxx, Xxxx X. Xxxxx or Xxx Xxxxxx
(collectively, the "MATRIX HOLDERS"), intends in good faith to sell or otherwise
Transfer any Securities to any Person (other than any Transfers made pursuant to
a put or call as set forth in any subscription agreement or employment agreement
between each of the Matrix Holders and the Company or any of its Subsidiaries),
such Transferor shall deliver to the nontransferring Matrix Holders,
concurrently with the delivery of the Refusal Notice, a written offer to sell
(the "MATRIX OFFER") all, but not less than all, of such Refusal Securities
which are the subject of the Refusal Notice; PROVIDED, HOWEVER, that a
nontransferring Matrix Holder shall only be entitled to receive notice hereunder
as long as such nontransferring Matrix Holder is an employee of Matrix
International Logistics, Inc., a Delaware corporation. Each Matrix Offer shall
contain the same terms and conditions, and shall be for the same cash
consideration, as described in the Refusal Notice. Within
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five (5) Business Days after the Refusal Notice is delivered to the
nontransferring Matrix Holders, any or all of the nontransferring Matrix Holders
may, by written notice delivered to such proposed Transferor (a "MATRIX
ACCEPTANCE NOTICE"), accept the offer to acquire all, but not less than all, of
the Refusal Securities as described in the Refusal Notice offered to such
nontransferring Matrix Holder. If more than one nontransferring Matrix Holder
elects to submit a Matrix Acceptance Notice, the Securities to be so purchased
shall be allocated to each Person which has submitted a Matrix Acceptance Notice
Pro-Rata based upon the relative number of Securities owned by each such Matrix
Holder as of such date. Each of the Matrix Holders, as applicable, shall be
required to complete the purchase of the Refusal Securities which are the
subject of the applicable acceptance notice referred to in this SECTION 4(d)(ii)
within thirty (30) days of receipt of the applicable acceptance notice by the
proposed Transferor. If none of the nontransferring Matrix Holders return the
Matrix Acceptance Notice within the required five (5) Business Day period, the
proposed Transferor shall nevertheless be obligated to comply with the notice
and offer provisions of SECTION 4(d)(i) prior to a proposed Transfer to any
Person.
(e) ELECTION OF TRANSFEROR. In the event that an Offeree does not
agree to purchase all of the Refusal Securities offered for sale to such Offeree
by a Transferor, such Transferor has the right at such Transferor's election to
(i) transfer the Refusal Securities to a third party in accordance with the
terms of SECTION 4(F) below.
(f) TRANSFERS TO THIRD PARTIES. If the Transfer of Refusal
Securities to an Offeree is not completed within the period set forth in
SECTIONS 4(b), (c) OR (d), as applicable, then such Transferor has the right to
complete a sale transaction with a third party; PROVIDED, that the consideration
received by such Transferor in respect of any such Transfer is not less than the
consideration proposed by the Refusal Notice. Notwithstanding any forfeiture of
future refusal rights as set forth in SECTIONS 4(b) AND (c), if such Transfer
transaction with a third party is not completed within ninety (90) days of the
date the Refusal Notice is received by each OCM Entity, WES&S or the Company, as
the case may be, then each OCM Entity, WES&S or the Company, as the case may be,
shall have the rights of first refusal with respect to any subsequent proposed
sale of Securities covered by this SECTION 4.
(g) TRANSFER OF SHARES. Transfers of Securities pursuant to offers
made and accepted in accordance with this SECTION 4 shall be made subject to and
in accordance with SECTION 2. Any Transfer made in violation of this SECTION 4
shall be void and of no force and effect.
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SECTION 5. PREEMPTIVE RIGHTS. If the Company issues any Common Stock
or securities convertible into Common Stock, or any right, title or interest
therein to any Person, then the Company shall make the offer to sell pursuant
to, and otherwise comply with the requirements set forth in this SECTION 5.
Notwithstanding the foregoing, the Company may Transfer Common Stock or
securities convertible into Common Stock, and any right, title or interest
therein without making the offer to sell as set forth in this SECTION 5 in
connection with (i) a Public Offering, (ii) the issuance of shares of Common
Stock in connection with the exercise of any Warrants, (iii) the issuance of
Securities to certain employees, executive officers and directors of the Company
pursuant to any stock option plan or stock purchase plan approved by the Board
of Directors and (iv) the issuance of Securities to any employee, director or
officer of the Company or any of its Subsidiaries. Notwithstanding the
foregoing, any rights or obligations pursuant to this SECTION 5 shall terminate
no later than the date of an Initial Public Offering. The rights in this
SECTION 5 shall not inure to the benefit of Xxxxx with respect to any Warrants
owned by Xxxxx or any transferee therefrom.
(a) COMPANY TRANSFER NOTICE. If the Company desires in good faith to
Transfer Common Stock or securities convertible into Common Stock, the Company
shall deliver a written notice of the proposed Transfer (the "COMPANY TRANSFER
NOTICE") to each Holder that in the reasonable judgment of the Company is an
Accredited Investor, or who can provide the Company with an opinion of counsel,
reasonably satisfactory in form and substance to the Company, that the Company
Transfer Securities (as defined below) may be sold to such Holder without
registration under the Securities Act (each an "ACCREDITED OFFEREE"). The
Company Transfer Notice shall contain a description of the proposed transaction
and the terms thereof including the number of Securities and type of Securities
proposed to be transferred (collectively, the "COMPANY TRANSFER SECURITIES"),
the name of each person to whom or in favor of whom the proposed Transfer is to
be made (the "COMPANY TRANSFEREE"), and a description of the consideration to be
received by the Company upon Transfer of the Company Transfer Securities. On a
day which is not earlier than the ten (10) days following delivery of the
Company Transfer Notice and after having received the requisite approval from
the Board of Directors, the Company may issue the Company Transfer Securities to
the Company Transferee on the terms set forth in the Company Transfer Notice.
(b) TERMS OF OFFER. Upon completion of the issuance of the Company
Transfer Securities referred to in SUBSECTION (a) above, the Company shall
deliver to each Holder a written offer
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to sell (the "OFFER TO SELL") a Pro-Rata portion of an equivalent number of the
Company Transfer Securities based upon such Holder's holdings of Securities.
The Offer to Sell shall be on the same terms and conditions, and shall be for
cash. If the consideration described in the Company Transfer Notice is for
something other than cash, the purchase price paid by each Holder for shares
purchased pursuant to this SUBSECTION (b) shall be in cash at the Trading Price
(or if no trading price is available, then the Fair Market Value) of such
Securities determined as of the issue date of the Company Transfer Securities.
(c) ACCEPTANCE OF OFFER. Within thirty (30) days after receipt of an
Offer to Sell, any Accredited Offeree may, by written notice delivered to the
Company, accept the Offer to Sell in whole or in part.
(d) ADDITIONAL OFFER. If, within the thirty (30) day period
specified in SECTION 5(c), the Accredited Offerees do not agree to purchase all
of the Company Transfer Securities offered pursuant to the initial Offers to
Sell, the Company shall make an additional offer to sell the remainder of the
Company Transfer Securities (the "ADDITIONAL OFFER") proportionately to the
Holders who accepted in whole their respective initial Offers to Sell. The
Additional Offer shall be made within five (5) days after expiration of the
initial thirty (30) day period, and may be accepted, in whole or in part, by
written notice delivered to the Company within ten (10) days after receipt.
Notwithstanding any other provision of this SECTION 5, the Accredited Offerees
may permit, by written agreement signed by each Accredited Offeree, any
Accredited Offeree to purchase more or less than such Accredited Offeree's Pro
Rata portion of the Company Transfer Securities.
(e) TRANSFER OF SHARES. Transfers of Securities pursuant to offers
made and accepted in accordance with this SECTION 5 or to a Company Transferee
shall occur simultaneously on a Business Day not more than thirty (30) days
after the last date on which any offer made in accordance with this SECTION 5
could have been accepted. Each such Transfer shall be made in accordance with
SECTIONS 2(a) AND (b) hereof.
SECTION 6. DRAG-ALONG. Prior to a Qualified Public Offering, the
following drag-along rights shall be available:
(a) QUALIFIED SALE. If (i) the Company agrees to be sold, merged or
liquidated pursuant to a Qualified Sale and (ii) such Qualified Sale is approved
by more than eighty percent (80%) of the outstanding shares of Common Stock
entitled to vote on such transaction, then all Holders (other than Public
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Transferees), shall be deemed to have consented to such Qualified Sale and shall
execute such documents to confirm such consent.
(b) STOCK SALE. If the Holders holding shares in excess of eighty
percent (80%) of the issued and outstanding Common Stock (the "SELLING HOLDERS")
elect to sell such shares of Common Stock to a third party (other than an OCM
Entity, WES&S, an OCM Affiliate, a TCW Affiliate or a WES&S Affiliate) (the
"ACQUIROR"), then the Acquiror shall have the right, at its option, to purchase
from the Holders other than the Selling Holders and any Public Transferees (the
"NON-SELLING HOLDERS"), the same Pro-Rata portion of Securities as is being
acquired from the Selling Holders at the same price per Security, with the same
form of consideration and upon the same terms and conditions as set forth in the
Transfer Notice (as defined below); PROVIDED, HOWEVER, that the price paid to
any warrantholder shall be the price paid by the Acquiror for each share of
Common Stock less any exercise price payable by such warrantholder. To exercise
this drag-along right, the Selling Holders shall provide written notice to each
Non-Selling Holder twenty (20) days prior to any such Transfer of Common Stock
(a "TRANSFER NOTICE") explaining the terms of such offer and identifying the
name and address of the Acquiror. If the Acquiror has exercised its right to
purchase a portion, but not all, of the Securities owned by the Non-Selling
Holders, then such Acquiror shall purchase a Pro Rata portion of the Securities
from each such Non-Selling Holder.
SECTION 7. TAG-ALONG. Prior to a Qualified Public Offering, if
Holders (other than Public Transferees) holding shares in excess of seventy-five
percent (75%) of the issued and outstanding Common Stock (the "SELLING HOLDERS")
elect to sell, dispose of or otherwise Transfer such shares of Common Stock to a
third party (other than an OCM Entity, WES&S, an OCM Affiliate, a TCW Affiliate
or a WES&S Affiliate)(the "ACQUIROR"), then, at least twenty (20) days prior to
any such Transfer by the Selling Holders of any Common Stock, the Selling
Holders shall provide to each Holder other than a Selling Holder and Public
Transferee (a "NON-SELLING HOLDER") a written notice (a "TRANSFER NOTICE")
explaining the terms of such transfer and identifying the name and address of
the potential Acquiror. Upon receipt of such Transfer Notice, each such
Non-Selling Holder shall have the right, upon delivery of a written request to
the Selling Holders within twenty (20) days of the date the Transfer Notice is
received by such Non-Selling Holder, to cause the potential Acquiror to purchase
from such Non-Selling Holder a Pro-Rata portion of the Securities which are
proposed to be sold by the Selling Holders (on a fully-diluted basis) in the
Transfer Notice at the same price and on the same terms and conditions contained
in the Transfer Notice delivered in connection with such proposed
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transaction; PROVIDED, HOWEVER, that the price paid to any warrantholder shall
be the price paid by the Acquiror for each share of Common Stock less any
exercise price payable by such warrantholder.
SECTION 8. BOARD OF DIRECTORS. (a) PRE-VOTING TERMINATION EVENT
BOARD. Prior to the first to occur of (i) an Initial Public Offering, (ii) a
Sell-Down Event, (iii) a WES&S Purchase Default, (iv) a WES&S Funding Default,
(v) a Financial Default Disagreement, (vi) an OCM Entity Purchase Default,
(vii) an OCM Entity Funding Default or (viii) May 2, 2002 (in each case a
"VOTING TERMINATION EVENT"), the Board of Directors shall at all times consist
of eight (8) members. Each Holder of Securities hereby agrees to cause all such
Securities that are entitled to vote and are registered in the name of such
Holder to be voted, and will otherwise take or cause to be taken all such other
action as may be necessary, so that the Board of Directors of the Company shall
at all times, until a Voting Termination Event, consist of eight (8) members, of
which two (2) members shall be designated by OCM (an "OCM DIRECTOR"), one (1)
member shall be designated by TCW (a "TCW DIRECTOR"), three (3) members shall
designated by WES&S (a "WES&S DIRECTOR"), one (1) member shall be the Chief
Executive Officer of the Company and one (1) member shall be Xxxxxxx X. Xxxxx,
Xx.
(b) POST-VOTING TERMINATION EVENT BOARD. Upon a Voting Termination
Event that is not caused by an Initial Public Offering, the Board of Directors
of the Company shall at all times consist of at least five (5) members or such
greater number that shall be needed to satisfy the terms of this SECTION 8(b).
Each Holder of Securities hereby agrees to cause all such Securities that are
entitled to vote and are registered in the name of such Holder to be voted, and
will otherwise take or cause to be taken all such other action as may be
necessary, so that the Board of Directors shall at all times, after a Voting
Termination Event that is not caused by an Initial Public Offering, consist of:
(a) (i) a majority of Board of Directors seats designated by an OCM Entity,
PROVIDED, that the combined holdings of the OCM Entities are fifty percent (50%)
or more of the voting stock and the Voting Termination Event is due to an event
other than an OCM Entity Funding Default or an OCM Entity Purchase Default,
(ii) one (1) Board of Directors seat less than a majority designated by an OCM
Entity, PROVIDED, that either (x) the combined holdings of the OCM Entities are
at least twenty-five percent (25%) but less than fifty percent (50%) of the
voting stock or (y) the combined holdings of the OCM Entities are fifty percent
(50%) or more of the voting stock and the Voting Termination Event is due solely
to an OCM Entity Funding Default or an OCM Entity Purchase Default, or (iii) one
(1) Board of Directors
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seat designated by an OCM Entity, PROVIDED, that the combined holdings of the
OCM Entities are at least ten percent (10%) but less than twenty-five (25%) of
the voting stock (in each case, an "OCM ENTITY TERMINATION DIRECTOR"); (b) one
(1) Board of Directors seat to be the Chief Executive Officer; (c) one (1) Board
of Directors seat to be Xxxxxxx X. Xxxxx Xx. and (d) the remainder of the board
seats to be designated by WES&S (a "WES&S TERMINATION DIRECTOR"); PROVIDED, that
in no event shall WES&S designate less than one (1) Board of Directors seat.
(c) INITIAL BOARD OF DIRECTORS. The Board of Directors, as of the
Closing Date, shall consist of the following members:
Xxxxxxx X. Xxxxxx (TCW Director)
Xxxxxxx X. Xxxxxx (OCM Director)
(OCM Executive Director)
Xxxxxxx X. Xxxxxxxxx (OCM Director)
Xxxxxxx X. Xxxxx, Xx. (WES&S Director)
Xxxxxxx X. Xxxxxx (WES&S Director)
(WES&S Executive Director)
Xxxxx X. Xxxxxxx (WES&S Director)
Xxxxx X. Xxxxxx (Chief Executive Officer)
Xxxxxxx X. Xxxxx, Xx. (an individual)
each of whom shall hold office for a term of one (1) year until the next annual
or special meeting of Holders called for the purpose of electing directors as
provided in SECTION 8(a) AND (b) of this Agreement or in the Bylaws.
Notwithstanding the foregoing designation, upon a Voting Termination Event that
is not caused by an Initial Public Offering, the directors designated in this
SECTION 8(c) shall be subject to removal and redesignation as set forth in
SECTION 8(b) hereof.
(d) FILLING VACANCIES, ETC. At any time a vacancy is created on the
Board by the death, removal (with or without cause) or resignation of any one of
the Directors, no action shall be taken by the Board until the Board is
reconstituted with the appropriate number of directors. Only OCM or an OCM
Affiliate shall have the right to remove an OCM Director or an OCM Entity
Termination Director appointed by OCM, or to fill a vacancy caused by the
resignation, removal (with or without
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cause) or death of such OCM Director or OCM Entity Termination Director. Only
TCW or a TCW Affiliate shall have the right to remove a TCW Director or an OCM
Entity Termination Director appointed by TCW, or to fill a vacancy caused by the
resignation, removal (with or without cause) or death of such TCW Director or
OCM Entity Termination Director. Only WES&S shall have the right to remove a
WES&S Director or to fill a vacancy caused by the resignation, removal (with or
without cause) or death of such WES&S Director or WES&S Termination Director.
For all other vacancies, the remaining directors shall meet in person or by
telephone for the purpose of approving and appointing a director in accordance
with the provisions set forth in SECTIONS 8(a) AND (b) hereof or in the By-Laws.
(e) COMPENSATION; LIABILITY COVERAGE. Xxxxxxx X. Xxxxx, Xx. and any
directors who are employees of OCM, TCW or WES&S shall not be entitled to
compensation (other than reimbursement of reasonable out-of-pocket expenses
incurred in connection with board meetings or director-related activities);
PROVIDED HOWEVER, that if directors who are either employees of the Company or
are newly admitted directors after the Closing Date receive additional
compensation in their capacity as directors, then such OCM Directors, TCW
Director, WES&S Directors, Xxxxxxx X. Xxxxx, Xx., OCM Entity Termination
Directors or WES&S Termination Directors shall be entitled to receive an
equivalent consideration. Within sixty (60) days of the Closing Date, the
Company shall secure for the benefit of all Directors and Officers liability
coverage from a reputable insurer selected by the Company with coverages which
are not less than Five Million Dollars ($5,000,000) and deductibles which are
customary for companies of comparable size. If the Company shall ever fail to
pay when due any premium or other charge with respect to such insurance
coverage, or otherwise fail to renew such coverage, any Holder may pay such
premium or charge, or renew such coverage, and the Company shall promptly
reimburse such Holder.
(f) ADDITIONAL OCM ENTITY RIGHTS. So long as an OCM Entity owns any
Common Stock:
(i) OCM, TCW, any such OCM Affiliate or TCW Affiliate, or any
designated representative on behalf of such OCM Affiliate or TCW Affiliate
(1) shall be entitled to discuss the business operations, properties and
financial and other conditions of the Company with any authorized officer,
employee, agent, representative, director or independent accountant of the
Company and, upon reasonable notice to the Company, any such authorized
officer, agent, representative, director or independent accountant of any
Subsidiary of the Company, (2) shall be entitled to submit
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proposals or suggestions to the Company's management from time to time with
the requirement that the management of the Company and, upon reasonable
notice to the Company, management of any Subsidiary of the Company shall
discuss such proposals or suggestions with OCM, TCW, any such OCM Affiliate
or TCW Affiliate, or any designated representative on behalf of each OCM,
TCW, any such OCM Affiliate or TCW Affiliate within a reasonable period
after such submission, and (3) shall be entitled to call a meeting with the
management of the Company and, upon reasonable notice to the Company,
management of any Subsidiary of the Company at reasonable times and on
reasonable notice in order to discuss such proposals or suggestions or for
other purposes.
(ii) OCM, TCW, any such OCM Affiliate or TCW Affiliate, or any
designated representative on behalf of OCM, TCW, or such OCM Affiliate or
TCW Affiliate, shall be entitled to examine and make abstracts from the
books and records, operating reports, budgets and other financial reports
of the Company as are available to the management of the Company, to visit
and inspect the facilities of the Company and, upon reasonable notice to
the Company, the facilities of any Subsidiary of the Company and to
reasonably request information all at reasonable times and intervals (and
on reasonable notice to the Company) concerning the general status of
financial condition and operations of the Company.
(iii) Upon request, OCM, TCW, any such OCM Affiliate or TCW
Affiliate, or any designated representative on behalf of OCM, TCW or such
OCM Affiliate or TCW Affiliate, shall be entitled to receive, when
available, copies of (1) financial statements, forecasts and projections
provided to or approved by the Board of Directors of the Company and/or (2)
such other business or financial data as OCM, TCW, any such OCM Affiliate
or TCW Affiliate, or any designated representative on behalf of OCM, TCW or
such OCM Affiliate or TCW Affiliate, may reasonably request.
(iv) each of OCM and TCW will hold, and will use its best efforts
to cause the OCM Affiliates and the TCW Affiliates, as applicable, to hold,
in strict confidence from any Person (other than any such Affiliate or
Person who has provided, or who is considering providing, financing to the
Company or purchasing securities of the Company from OCM or an OCM
Affiliate), unless (i) compelled to disclose by judicial or administrative
process or by other requirements of law or (ii) disclosed in an action or
proceeding brought by a party hereto in pursuit of its rights or in the
exercise of its remedies hereunder, all documents and
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information concerning the Company furnished to it by the Company in
connection with this SECTION 8(f), except to the extent that such documents
or information can be shown to have been (a) previously known by the party
receiving such documents or information, (b) in the public domain (either
prior to or after the furnishing of such documents or information
hereunder) through no fault of such receiving party or (c) later acquired
by the receiving party from another source if the receiving party is not
aware that such source is under an obligation to another party hereto to
keep such documents and information confidential.
(g) NONTRANSFERABILITY. Notwithstanding any other provision of this
Agreement to the contrary, the rights of OCM, TCW, WES&S and Xxxxxxx X. Xxxxx,
Xx. pursuant to this SECTION 8 shall not be transferable to any transferee;
PROVIDED, HOWEVER, that each of OCM, TCW and WES&S may transfer their rights
pursuant to this SECTION 8 to an OCM Affiliate, a TCW Affiliate or a WES&S
Affiliate, respectively.
(h) VOTING AGREEMENT. All parties to this Agreement agree that this
SECTION 8 shall constitute a voting agreement within the meaning of Section 218
of the Delaware General Corporation Law and, subject to the other express terms
of this Agreement, shall be of the maximum duration permitted under the Delaware
General Corporation Law.
SECTION 9. CORPORATE GOVERNANCE. (a) BOARD VOTING; MANAGEMENT. Prior
to a Voting Termination Event and except with respect to the daily affairs and
operations of the Company arising in the ordinary course of business, which
affairs shall be attended to by the officers of the Company under the ultimate
direction of the Board of Directors, no action shall be taken, securities
issued, monies borrowed, sum expended, decision made or obligation incurred by
or on behalf of the Company or any of its Subsidiaries with respect to any
matter, unless approved by at least six (6) Directors or as set forth in SECTION
9(b) below.
(b)EXECUTIVE COMMITTEE. Prior to a Voting Termination Event, an
Executive Committee (the "EXECUTIVE COMMITTEE") consisting of three (3) members
of the Board of Directors shall be authorized to take any action on behalf of
the Board of Directors (in between meetings of the Board of Directors) upon the
unanimous approval of such Executive Committee, including, without limitation,
the declaration of dividends, the issuance of shares of capital stock or any
other equity or debt security, or option or security convertible into equity or
debt securities, of the Company, and the adoption of a certificate of ownership
and merger pursuant to Section 253 of the Delaware General
-23-
Corporation Law. Each of OCM and WES&S shall designate one (1) OCM Director (an
"OCM EXECUTIVE DIRECTOR") and one (1) WES&S Director (a "WES&S EXECUTIVE
DIRECTOR"), respectively, to sit on the Executive Committee; and the third
member of the Executive Committee shall be the Chief Executive Officer of the
Company. Only OCM shall have the right to remove (with or without cause) an OCM
Executive Director or to fill a vacancy caused by the resignation, removal or
death of such OCM Executive Director. Only WES&S shall have the right to remove
(with or without cause) a WES&S Executive Director or to fill a vacancy caused
by the resignation, removal or death of such WES&S Executive Director.
(c) AUDIT AND COMPENSATION COMMITTEES. The Board of Directors may, by
resolution passed by a majority of the total number of directors which the
Company would at the time have if there were no vacancies, designate an audit
committee of the Board of Directors (the "AUDIT COMMITTEE"), which shall be
responsible for reviewing the scope of the Company's independent auditors'
examination of the Company's financial statements and receiving and reviewing
their reports, and a compensation committee of the Board of Directors (the
"COMPENSATION COMMITTEE"), which shall be responsible and have authority for
determining the Company's policies with respect to the nature and amount of all
compensation to be paid to the Company's executive officers and administering
the Company's benefit plans and shall also have the authority to issue shares of
capital stock or any other equity or debt security, or option or security
convertible into equity or debt securities, of the Company. Prior to a Voting
Termination Event each of the Audit Committee and the Compensation Committee
shall consist of two members, one of whom shall be an OCM Director that is
designated for membership on such committee by OCM and one of whom shall be a
WES&S Director that is designated for membership on such committee by WES&S.
Only OCM shall have the right to remove an OCM Director who is a member of the
Audit Committee or Compensation Committee or to fill a vacancy on the Audit
Committee or Compensation Committee caused by the resignation, removal or death
of such OCM Director. Only WES&S shall have the right to remove a WES&S
Director who is a member of the Audit Committee or Compensation Committee or to
fill a vacancy on the Audit Committee or Compensation Committee caused by the
resignation, removal or death of such WES&S Director.
(d) SHAREHOLDER VOTING. Prior to a Voting Termination Event, all such
actions taken by, in the name of or on behalf of the holders of Common Stock
shall require an affirmative vote of the holders representing at least eighty
percent (80%) of the issued and outstanding shares entitled to vote. Upon a
Voting Termination Event, all such actions taken by, in the name of or on behalf
of the holders of Common Stock shall require an
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affirmative vote of a majority of the issued and outstanding shares entitled to
vote.
SECTION 10. CERTIFICATES.
(a) RESTRICTIVE ENDORSEMENTS. Each certificate evidencing any
Securities shall bear a legend in substantially the following form:
"The [shares][warrant] evidenced by this certificate [and the shares
of Common Stock into which any Warrant represented hereby is
convertible] are subject to that certain [a Warrant, dated as of
_________,] [Subscription Agreement, dated as of _________,] [Employee
Stock Purchase Plan, dated as of ________,] a Stockholders Agreement,
dated as of ________, and Registration Rights Agreement, dated as of
___________ copies of which are on file at the principal office of the
Company and will be furnished to the holder on request to the
Secretary of the Company. Such [Warrant,] [Subscription Agreement]
[Employee Stock Purchase Plan] Stockholders Agreement and Registration
Rights Agreement provide, among other things, for certain restrictions
on voting, sale, transfer, pledge, hypothecation or other disposition
of the (securities) [warrant] evidenced by this certificate [and the
shares of Common Stock purchasable upon exercise of the warrant] and
that such securities may be subject to purchase by the Company as well
as certain other persons upon the occurrence of certain events. Any
issuance, sale, assignment, transfer or other disposition of the
securities evidenced by this certificate to persons who are not party
to such Stockholders Agreement shall be null and void."
In addition, unless counsel to the Company has advised the Company that
such legend is no longer needed, each certificate evidencing the Securities
shall bear a legend in substantially the following form:
"The securities [warrant] evidenced by this certificate [and the
shares of common stock purchasable upon exercise of the warrant] have
not been registered pursuant to the Securities Act of 1933, as amended
(the "Act"), or any state securities law, and such securities
[warrant] may not be sold, transferred or otherwise disposed of unless
the same are registered and qualified in accordance with the Act and
any applicable state securities laws, or in the opinion of counsel
-25-
reasonably satisfactory to the Company such registration and qualification
are not required."
(b) REPLACEMENT CERTIFICATES. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of any certificate evidencing any Securities, and (in the case of
loss, theft or destruction) of indemnity reasonably satisfactory to the Company,
upon surrender and cancellation of such certificate or receipt of such
indemnity, the Company will execute, register and deliver a new certificate of
like tenor in lieu of such lost, stolen, destroyed or mutilated certificate.
SECTION 11. REPRESENTATIONS. Each Holder represents that such Holder
is the record and beneficial owner of the number of issued and outstanding
Securities appearing opposite such Holder's name in Exhibit A attached hereto,
free and clear of any option, lien, encumbrance or charge of any kind
whatsoever.
SECTION 12. EQUITABLE RELIEF. The parties hereto agree and declare
that legal remedies may be inadequate to enforce the provisions of this
Agreement and that equitable relief, including specific performance and
injunctive relief, may be used to enforce such provisions.
SECTION 13. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
(i) (A) if to the Company, at
000 X. Xxxxxxxx Xxxx, Xxx. 000
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Chief Executive Officer
(B) with copies to OCM, TCW and WES&S, at the respective
addresses set forth below
-26-
(ii) if to TCW or OCM, at
TCW Special Credits Fund V - The Principal Fund
C/O Oaktree Capital Management, LLC
000 Xxxxx Xxxx Xx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
OCM Principal Opportunities Fund, L.P.
C/O Oaktree Capital Management, LLC
000 Xxxxx Xxxx Xx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
with copies to:
Oaktree Capital Management, LLC
000 Xxxxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
(iii) if to WES&S, at
Xxxxxxx Xxxxx & Sons, LLC
00000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
-27-
(iv) if to any other Person who is the registered holder of any
Securities to the address for the purpose of such holder as it appears in
the stock ledger of the Company.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
(b) WAIVER. No failure or delay on the part of the parties or any of
them in exercising any right, power or privilege hereunder, nor any course of
dealing between the parties or any of them shall operate as a waiver of any such
right, power or privilege nor shall any single or partial exercise of any such
right, power or privilege preclude the simultaneous or later exercise of any
other right, power or privilege. The rights and remedies herein expressly
provided are cumulative and are not exclusive of any rights or remedies which
the parties or any of them would otherwise have. No notice to or demand on the
Company in any case shall entitle the Company to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the other parties or any of them to take any other or further action in any
circumstances without notice or demand.
(c) 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.
(d) GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware without regard to
principles of conflict of laws.
(e) FILING. A copy of this Agreement and of all amendments hereto
shall be filed at the principal office of the Company.
-28-
(f) AMENDMENT OR TERMINATION. Prior to a Voting Termination Event,
this Agreement may be amended or terminated at any time only by an instrument in
writing signed by the Company and the Holders beneficially owning at least
eighty percent (80%) of the issued and outstanding Common Stock. Upon a Voting
Termination Event, this Agreement may be amended or terminated at any time by an
instrument in writing signed by the Company and the Holders beneficially owning
a majority of the issued and outstanding shares entitled to vote.
Notwithstanding the foregoing, (i) no amendment or modification to SECTION 8 OR
9 hereof may be made without the consent of the Holders beneficially owning
ninety percent (90%) of the issued and outstanding Common Stock and (ii) upon
receiving the unanimous written consent of each of the OCM Entities and WES&S,
the Company may (a) add new Holders to this Agreement by attaching a
supplemental signature page dated as of the date of execution and (b) amend
Exhibits A and B.
(g) BENEFIT AND BINDING EFFECT. Except as otherwise provided in this
Agreement, no right under this Agreement shall be assignable and any attempted
assignment in violation of this provision shall be void. Subject to compliance
with the terms of this Agreement regarding Transfer of Securities, this
Agreement shall be binding upon and inure to the benefit of the parties and
their executors, administrators, personal representatives, heirs, successors and
permitted assigns. Except as set forth in this SUBSECTION (g), this Agreement
does not create and shall not be construed as creating any rights enforceable by
any Person not a party hereto.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provisions in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
-29-
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amended and Restated Stockholders Agreement as of the day and year first above
written.
The Company: INTERNATIONAL LOGISTICS LIMITED
By: /s/ XXXXX X. XXXXXX
-------------------
Xxxxx X. Xxxxxx
President and
Chief Executive Officer
Holders: TCW SPECIAL CREDITS FUND V - THE
PRINCIPAL FUND
By: TCW ASSET MANAGEMENT COMPANY,
its General Partner
By: /s/ XXXXXXX X. XXXXXX
---------------------
Xxxxxxx X. Xxxxxx
Authorized Signatory
By: /s/ XXXXXXX X. XXXXXX
---------------------
Xxxxxxx X. Xxxxxx
Authorized Signatory
OCM PRINCIPAL OPPORTUNITIES FUND, L.P.
By: OAKTREE CAPITAL MANAGEMENT, LLC,
its General Partner
By: /s/ XXXXXXX X. XXXXXX
---------------------
Xxxxxxx X. Xxxxxx
Principal
By: /s/ XXXXXXX X. XXXXXX
---------------------
Xxxxxxx X. Xxxxxx
Managing Director
LOGISTICAL SIMON, L.L.C.
By: WESINVEST, Inc.
its Manager
By: /s/ XXXXXXX X. XXXXXX
---------------------
Xxxxxxx X. Xxxxxx
President
[signature page continues]
ING CAPITAL (U.S.) CORPORATION
By: /s/
-------------------
Name:
Title:
BANQUE PARIBAS
By: /s/ XXXXXX X XXXXXX
-------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
PARIBAS NORTH AMERICA, INC.
By: /s/ XXXX X. XXXXXXXX
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Financial Controller
/s/ XXXXX X. XXXXXX
-------------------
Xxxxx X. Xxxxxx, as an individual
/s/ XXXX X. XXXXXX
---------------
Xxxx Xxxxxx, as an individual
/s/ XXXXX XXXXXXXX
------------------
Xxxxx Xxxxxxxx, as an individual
/s/ XXXXXXX X. XXXXX, XX.
-------------------------
Xxxxxxx X. Xxxxx, Xx., as an individual
/s/ XXXX XXXX
-------------
Xxxx Xxxx, as an individual
/s/ Xxxxxxx Xxxx
----------------------------------
Xxxxxxx Xxxx, as an individual
/s/ Xxxxx X.X. Xxxxxx
----------------------------------
Xxxxx X.X. Xxxxxx, as an individual
[signature page continues]
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxxx, as an individual
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, as an individual
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx, as an individual
/s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, as an individual
/s/ Xxxx Xxxxxxxx
---------------------------------------
Xxxx Xxxxxxxx, as an individual
/s/ Xxxx Xxxxx
---------------------------------------
Xxxx Xxxxx, as an individual
/s/ Xxxxxxxxx Xxxxx
---------------------------------------
Xxxxxxxxx Xxxxx, as an individual
/s/ Xxxxxxx Xxxxxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxxxxx, as an individual
/S/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, as an individual
/s/ Xxxxx Xxxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxxx, as an individual
/s/ Xxxx X. Xxxxx
---------------------------------------
Xxxx X. Xxxxx, as an individual
/s/ Xxx Xxxxxx
---------------------------------------
Xxx Xxxxxx, as an individual
/s/ Xxxx Xxxxx
---------------------------------------
Xxxx Xxxxx, an individual
[signature page continues]
/s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx, an individual
/s/ Xxx Xxxxxxxx
---------------------------------------
Xxx Xxxxxxxx, an individual
/s/ Xxx Xxxxxxx
---------------------------------------
Xxx Xxxxxxx, an individual
/s/ Xxxxx Xxxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxxx, an individual
/s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx, an individual
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx, an individual
/s/ Xxx Xxxxxxxx
---------------------------------------
Xxx Xxxxxxxx, an individual
/s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx, an individual
/s/ Xxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx, an individual
/s/ Xxx Xxxxxxxx
---------------------------------------
Xxx Xxxxxxxx, an individual
/s/ Xxx Xxxxxx
---------------------------------------
Xxx Xxxxxx, an individual
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx, an individual
/s/ Xxx Xxxxxx
---------------------------------------
Xxx Xxxxxx, an individual
/s/ Xxxxx Xxxx
---------------------------------------
Xxxxx Xxxx, an individual
/S/ Xxxxxxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxxxxxx Xxxxxxx, an individual
/s/ X.X. Xxxxxxx
---------------------------------------
X.X. Xxxxxxx, an individual
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, an individual
/s/ Xxxx Xxxxxxxx
---------------------------------------
Xxxx Xxxxxxxx, an individual
/s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxxxx, an individual
/s/ Xxxxxxx X. XxxXxxxxxx
---------------------------------------
Xxxxxxx X. XxxXxxxxxx, an individual
/s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxxx X. Xxxxxx, an individual
/s/ Xxxxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxxxx X. Xxxxx, an individual
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, an individual
/s/ Xxxx Wasp
---------------------------------------
Xxxx Wasp, an individual
/s/ Xxxxxxxx Xxxxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxxxxxxx, an individual
/s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx, an individual
[signature page continues]
ELGAR TRADING LIMITED
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx, as attorney
in fact for Elgar Trading Limited
COTECH COMPANY INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx, as attorney
in fact for Elgar Trading Limited
HERA VENTURES LIMITED
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx, as attorney
in fact for Elgar Trading Limited
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx, an individual
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx, an individual
/s/ Xxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxx, an individual
/s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx, an individual
/s/ Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx, an individual
/s/ Xxxxxxx Xxxx
--------------------------------------
Xxxxxxx Xxxx, an individual
/s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx, an individual
[signature page continues]
/s/ Xxx Xxxxxxx
---------------------------------------
Xxx Xxxxxxx, an individual
/s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx, an individual
[signature page continues]
EXHIBIT "A"
HOLDERS COMMON STOCK WARRANTS
---------------------------------------------------------------------
TCW SPECIAL CREDITS FUND V -
THE PRINCIPAL FUND 695,575 0
OCM PRINCIPAL OPPORTUNITIES
FUND, L.P. 600,000 0
LOGISTICAL SIMON, L.L.C. 469,532 125,000
XXXXX X. XXXXXX 20,012* 175,000
XXXX XXXXXX 10,000 37,500
XXXXX XXXXXXXX 19,200 10,000
ING 18,718 5,025**
BANQUE PARIBAS 17,500 5,025***
PARIBAS NORTH AMERICA, INC. 70,175 0
XXXXXXX X. XXXXX, XX. 0 59,938
XXXXX X. XXXXXXXXX 0 14,983
XXXX XXXX 0 6,516
XXXXXXX XXXX 0 6,516
XXXXXX X. XXXXXXX 196 266
XXXXX X.X. XXXXXX 0 5,620
XXXXXXX X. XXXXX 1,000* 0
XXXXX X. XXXXXXX 2,500* 0
XXXX XXXXX AND
XXXXXXXXX XXXXX 500 5,000
XXXXXXX XXXXXXXXXX 24,000 0
XXXXXX X. XXXXX 24,000 0
XXXXX XXXXXXXXX 24,000 0
XXXX X. XXXXX 24,000 0
XXX XXXXXX 9,000 0
XXXX XXXXX 7,000 37,500
XXXXX XXXXXX 1,000 37,500
XXX XXXXXXXX 0 30,000
XXX XXXXXXX 1,000 0
XXXXX XXXXXXXXX 500 0
XXXXX XXXXXXX 3,500 0
[table continued on next page]
-37-
XXX XXXXXXXX 600 0
XXXX XXXXXX 500 0
XXXX XXXXXXX 500 0
XXX XXXXXXXX 500 0
XXX XXXXXX 500 0
XXXXX XXXXXXXX 500 0
XXX XXXXXX 500 0
XXXXX XXXX 2,500 0
XXXXXXXXXXX XXXXXXX 500 0
X.X. XXXXXXX 500 0
XXXXXX X. XXXXXXX 3,333 0
XXXX XXXXXXXX 1,700 0
XXXXXX X. XXXXXXXXXXX 1,000 0
XXXXXXX X. XxxXXXXXXX 1,667 0
XXXXXXXX X. XXXXXX 1,000 0
XXXXXXXXX X. XXXXX 500 0
XXXXXXX X. XXXXXX 500 0
ILL DEFERRED COMPENSATION
PLAN 3,168 0
HERA VENTURES LIMITED 0 7,323
COTECH COMPANY INC. 0 42,361
ELGAR TRADING LIMITED 0 42,361
XXXXXXX X. XXXXX 3,333 37,500
XXXXXX XXXXXXXXX 3,333 0
XXXXXX XXXXXX 2,500 0
XXXXXX XXXXXX 500 0
XXXXX XXXXXXX 2,000 0
XXXXXXX XXXX 1,334 0
XXXX XXXXXX 850 0
XXX XXXXXXX 0 8,000
XXXXXX XXXXXX 0 12,500
TOTAL 2,076,726 711,434
Common Stock Warrants
* Excludes shares which are held by the ILL Deferred Compensation Plan for
the benefit of Xxxxx X. Xxxxxx (2,488), Xxx Xxxxxxx (247) and Xxxxx Xxxxx
(433).
** Excludes up to 1,624 Warrants exercisable if WES&S, Xxxxxx and ING Capital
(U.S.) Corporation exercise 100% of the Warrants issued to each of them on
May 2, 1996.
*** Excludes up to 1,624 Warrants exercisable if WES&S, Xxxxxx and Banque
Paribas exercise 100% of the Warrants issued to each of them on May 2,
1996.
-39-
EXHIBIT "B"
XXXXX X. XXXXXX XXX XXXXXXX
XXXX XXXXXX XXXXXX XXXXXX
XXXXX XXXXXXXX XXXX XXXXXXX
XXXXXXX X. XXXXX XXX XXXXXXXX
XXXXX X. XXXXXXX XXX XXXXXX
XXXX XXXXXXXX XXXXX XXXXXXXX
XXXX XXXXX AND XXX XXXXXX
XXXXXXXXX XXXXX
XXXXXXX XXXXXXXXXX XXXXX XXXX
XXXXXX X. XXXXX XXXXXXXXXXX XXXXXXX
XXXXX XXXXXXXXX X.X. XXXXXXX
XXXX X. XXXXX XXXXXX X. XXXXXXX
XXX XXXXXX XXXX XXXXXXXX
XXXX XXXXX XXXXXX X. XXXXXXXXXXX
XXXXX XXXXXX XXXXXXX X. XXXXXXXXXX
XXX XXXXXXXX XXXXXXXX X. XXXXXX
XXX XXXXXXX XXXXXXXXX X. XXXXX
XXXXX XXXXXXXXX XXXXXXX X. XXXXXX
DIEGO XXXXXXX XXXX WASP
XXXXX XXXXXXXX HERA VENTURES LIMITED
XXX XXXXXXXX XXXXXXXX XXXXXXXXXX
XXXX XXXXXX COTECH COMPANY INC.
XXXXXX XXXXXX XXXXXX XXXXXXX
XXXXX XXXXXXX ELGAR TRADING LIMITED
XXXXXXX XXXX XXXXXXX X. XXXXX
XXXX XXXXXX XXXXXX XXXXXXXXX
-40-
