THIS WARRANT WAS ORIGINALLY ISSUED ON SEPTEMBER 1, 2000 AND HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT,
THE RULES AND REGULATIONS THEREUNDER OR THE PROVISIONS OF THIS
WARRANT. THIS WARRANT IS ALSO SUBJECT TO A SECURITIES PURCHASE
AGREEMENT DATED AS OF SEPTEMBER 1, 2000 BY AND BETWEEN UNITED
SHIPPING & TECHNOLOGY, INC. (THE "COMPANY") AND THE ORIGINAL
HOLDER HEREOF, AS AMENDED FROM TIME TO TIME. A COPY OF SUCH
SECURITIES PURCHASE AGREEMENT WILL BE FURNISHED WITHOUT CHARGE
BY THE COMPANY TO THE HOLDER HEREOF UPON REQUEST.
STOCK PURCHASE WARRANT
TO ACQUIRE SERIES C PREFERRED STOCK
Date of Issuance: September 1, 2000 Certificate No. W-9
For value received, UNITED SHIPPING & TECHNOLOGY, INC., a Utah
corporation (the "Company"), hereby grants to THLI COINVESTMENT PARTNERS
LLC, a Delaware limited liability company, or its transferees and assigns,
the right to purchase from the Company 10,598 Warrant Shares (as defined
herein) at a price per Share equal to $0.01 (the "Exercise Price"). Certain
capitalized terms used herein are defined in Section 3 hereof.
This Warrant is one of the "Series C Warrants" (collectively,
the "Series C Warrants") issued pursuant to the terms of the Securities
Purchase Agreement dated as of September 1, 2000 between the Company and
the purchasers named therein (as amended, restated or modified from time to
time, the "Purchase Agreement"). Certain capitalized terms used herein are
defined in Section 3 hereof.
This Warrant is subject to the following provisions:
SECTION 1. Exercise of Warrant.
1A. Exercise Period. The purchase rights represented by this
Warrant may only be exercised, in whole or in part, at any time, and from
time to time until 5:00 p.m., New York time, on September 1, 2005 or, if
such day is not a business day, on the next preceding business day (the
"Exercise Period").
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised
when all of the following items have been delivered to the Company (the
"Exercise Time"):
(a) a completed Exercise Agreement, as described in
Section 1C below, executed by the Person exercising all or part of
the purchase rights represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if the Purchaser is not the Registered Holder,
an Assignment or Assignments in the form set forth in Exhibit II
attached hereto evidencing the assignment of this Warrant to the
Purchaser; and
(d) a check or wire transfer payable to the Company
in an amount equal to the product of the Exercise Price multiplied by
the number of Warrant Shares being purchased upon such exercise (the
"Aggregate Exercise Price").
(ii) Certificates for Warrant Shares purchased upon
exercise of this Warrant shall be delivered by the Company to the Purchaser
within five days after the date of the Exercise Time. Unless this Warrant
has expired or all of the purchase rights represented hereby have been
exercised, the Company shall prepare a new Warrant, substantially identical
hereto, representing the rights formerly represented by this Warrant which
have not expired or been exercised and shall, within such five-day period,
deliver such new Warrant to the Person designated for delivery in the
Exercise Agreement.
(iii) The Warrant Shares issuable upon the exercise of
this Warrant shall be deemed to have been issued to the Purchaser at the
Exercise Time, and the Purchaser shall be deemed for all purposes to have
become the Registered Holder of such Warrant Shares at the Exercise Time.
(iv) The Company shall not close its books against the
transfer of this Warrant or of any Warrant Shares issued or issuable upon
the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. The Company shall from time to time take all such
action as may be necessary to assure that the par value per share of the
unissued Warrant Shares acquirable upon exercise of this Warrant is at all
times equal to or less than the Exercise Price then in effect. In the event
that the Company fails to comply with its obligations set forth in the
foregoing sentence, the Purchaser may (but shall not be obligated to)
purchase Warrant Shares hereunder at par value, and the Company shall be
obligated to reimburse the Purchaser for the aggregate amount of
consideration paid in connection with such exercise in excess of the
Exercise Price then in effect.
(v) Notwithstanding any other provision hereof, if an
exercise of any portion of this Warrant is to be made in connection with a
public offering or a sale of the Company (pursuant to a merger, sale of
stock, or otherwise), such exercise may at the election of the Registered
Holder be conditioned upon the consummation of such transaction, in which
case such exercise shall not be deemed to be effective until immediately
prior to the consummation of such transaction.
(vi) The Company shall at all times reserve and keep
available out of its authorized but unissued Series C Preferred Stock
solely for the purpose of issuance upon the exercise of this Warrant, the
maximum number of Warrant Shares issuable upon the exercise of this
Warrant. All Warrant Shares which are so issuable shall, when issued and
upon the payment of the applicable Exercise Price, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and
charges except those created by actions of the holder hereof. The Company
shall take all such reasonable actions as may be necessary to ensure that
all such Warrant Shares may be so issued without violation by the Company
of any applicable law or governmental regulation.
1C. Exercise Agreement. Upon any exercise of this Warrant, the
Purchaser shall deliver to the Company an Exercise Agreement in
substantially the form set forth as Exhibit I hereto, except that if the
Warrant Shares are not to be issued in the name of the Registered Holder,
the Exercise Agreement shall also state the name of the Person to whom the
certificates for the Warrant Shares are to be issued, and if the number of
Warrant Shares to be issued does not include all of the Warrant Shares
purchasable hereunder, it shall also state the name of the Person to whom a
new Warrant for the unexercised portion of the rights hereunder is to be
issued.
SECTION 2. Adjustment of Exercise Price and Number of Shares.
In order to prevent dilution of the rights granted under this Warrant, the
number of Warrant Shares obtainable upon exercise of this Warrant shall be
subject to adjustment from time to time as provided in this Section 2.
2A. Subdivision or Combination of Common Stock. If the Company
at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding
shares of Common Stock into a greater number of shares, the number of
Warrant Shares obtainable upon exercise of this Warrant shall be
proportionately increased. If the Company at any time combines (by reverse
stock split or otherwise) one or more classes of its outstanding shares of
Preferred Stock into a smaller number of shares, the Exercise Price in
effect immediately prior to such combination shall be proportionately
increased and the number of Warrant Shares obtainable upon exercise of this
Warrant shall be proportionately decreased.
2B. Reorganization, Reclassification, Consolidation, Merger or
Sale. Any recapitalization, reorganization, reclassification,
consolidation, merger, sale of all or substantially all of the Company's
assets or other transaction, which in each case is effected in such a way
that the holders of Common Stock are entitled to receive (either directly
or upon subsequent liquidation) stock, securities or assets with respect to
or in exchange for Common Stock is referred to herein as "Organic Change."
Prior to the consummation of any Organic Change, the Company shall make
appropriate provision to insure that the Registered Holder of this Warrant
shall thereafter have the right to acquire and receive, in lieu of the
Warrant Shares immediately theretofore acquirable and receivable upon the
exercise of such holder's Warrant, such shares of stock, securities or
assets as such Registered Holder would have received in connection with
such Organic Change if such Registered Holder had exercised this Warrant in
full immediately prior to such Organic Change. In each such case, the
Company shall make appropriate provision with respect to such holder's
rights and interests to insure that the provisions of this Section 2 shall
thereafter be applicable to this Warrant. The Company shall not effect any
such consolidation, merger or sale, unless prior to the consummation
thereof, the successor entity (if other than the Company) resulting from
consolidation or merger or the entity purchasing such assets assumes by
written instrument, the obligation to deliver to such holder such shares of
stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to acquire.
2C. Certain Events. If any event occurs of the type
contemplated by the provisions of this Section 2 but not expressly provided
for by such provisions, then the Company's board of directors shall make an
appropriate adjustment in the number of Warrant Shares obtainable upon
exercise of this Warrant so as to protect the rights of the holders of this
Warrant; provided, that no such adjustment shall increase or decrease the
number of Warrant Shares obtainable as otherwise determined pursuant to
this Section 2.
2D. Notices.
(i) The Company shall give written notice to the
Registered Holder at least 20 days prior to the date on which the Company
closes its books or takes a record (a) with respect to any pro rata
subscription offer to holders of Common Stock or (b) for determining rights
to vote with respect to any Organic Change, dissolution or liquidation.
(ii) The Company shall also give written notice to the
Registered Holders at least 20 days prior to the date on which any Organic
Change, dissolution or liquidation shall take place.
SECTION 3. Definitions. The following terms have the meanings
set forth below:
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization or
government or department or agency thereof.
"Registered Holder" means the holder of this Warrant as
reflected in the records of the Company maintained pursuant to the
provisions of Section 11.
"Series C Preferred Stock" means, collectively, the Company's
Series C Convertible Preferred Stock, par value $0.004 per share, and any
securities into which such common stock is hereafter converted or
exchanged.
"Subsidiary" means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total
voting power of shares of stock entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the
partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest
in a limited liability company, partnership, association or other business
entity if such Person or Persons shall be allocated a majority of limited
liability company, partnership, association or other business entity gains
or losses or shall be or control the managing general partner of such
limited liability company, partnership, association or other business
entity.
"Warrant Shares" means shares of Series C Preferred Stock
issuable upon exercise of the Warrant; provided, that if the securities
issuable upon exercise of this Warrant are issued by an entity other than
the Company or there is a change in the class of securities so issuable,
then the term "Warrant Shares" shall mean shares of the security issuable
upon exercise of this Warrant if such security is issuable in shares, or
shall mean the equivalent units in which such security is issuable if such
security is not issuable in shares.
SECTION 4. No Voting Rights; Limitations of Liability. This
Warrant shall not entitle the Registered Holder hereof to any voting rights
or other rights as a stockholder of the Company. No provision hereof, in
the absence of affirmative action by the Registered Holder to purchase
Warrant Shares, and no enumeration herein of the rights or privileges of
the Registered Holder shall give rise to any liability of such Registered
Holder for the Exercise Price of Warrant Shares acquirable by exercise
hereof or as a stockholder of the Company.
SECTION 5. Transferability. Subject to compliance with the
Securities Act of 1933, as amended, and other applicable securities law,
this Warrant and all rights hereunder are transferable, in whole or in
part, without charge to the Registered Holder, upon surrender of this
Warrant with a properly executed Assignment (in the form of Exhibit II
hereto).
SECTION 6. Warrant Exchangeable for Different Denominations.
This Warrant is exchangeable, upon the surrender hereof by the Registered
Holder at the principal office of the Company, for new Warrants of like
tenor representing in the aggregate the purchase rights hereunder, and each
of such new Warrants shall represent such portion of such rights as is
designated by the Registered Holder at the time of such surrender. At the
request of the Registered Holder (pursuant to a transfer of this Warrant or
otherwise), this Warrant may be exchanged for one or more Warrants to
purchase Common Stock. The date the Company initially issues this Warrant
shall be deemed to be the date of issuance hereof regardless of the number
of times new certificates representing the unexpired and unexercised rights
formerly represented by this Warrant shall be issued.
SECTION 7. Exchange. In the event that it becomes unlawful or,
in the reasonable judgment of any Registered Holder of this Warrant, unduly
burdensome by reason of a change in legal or regulatory considerations or
the interpretation thereof affecting the ability of financial institutions
or their affiliates to hold equity securities, or any material change
(including a reduction in the number of shares of Common Stock outstanding)
in the capital structure of the Company, to hold this Warrant or any of the
Warrant Shares, the Registered Holder of this Warrant shall have the
right to require all or part of this Warrant or such Registered Holder's
Warrant Shares to be exchanged for nonvoting stock or similar interests
that convey equivalent economic benefits to such Warrant or Warrant Shares.
Any such exchange shall occur as soon as practicable but in any event
within sixty (60) days after written notice by the Registered Holder of
this Warrant to the Company (or such earlier date if required to comply
with applicable law).
SECTION 8. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction, or
mutilation of any certificate evidencing this Warrant, and in the case of
any such loss, theft, or destruction, upon receipt of indemnity reasonably
satisfactory to the Company (provided, that if the Registered Holder is a
financial institution or other institutional investor its own Agreement
shall be satisfactory), or, in the case of any such mutilation upon
surrender of such certificate, the Company shall (at its expense) execute
and deliver in lieu of such certificate a new certificate of like kind
representing the same rights represented by such lost, stolen, destroyed,
or mutilated certificate and dated the date of such lost, stolen,
destroyed, or mutilated certificate.
SECTION 9. Notices. Except as otherwise expressly provided
herein, all notices and deliveries referred to in this Warrant shall be in
writing, shall be delivered personally, sent by registered or certified
mail, return receipt requested and postage prepaid or sent via nationally
recognized overnight courier or via facsimile, and shall be deemed to have
been given when so delivered (or when received, if delivered by any other
method) if sent (i) to the Company, at its principal executive offices, and
(ii) to a Registered Holder, at such Registered Holder's address as it
appears in the records of the Company (unless otherwise indicated by any
such Registered Holder).
SECTION 10. Amendment and Waiver. Except as otherwise provided
herein, the provisions of this Warrant may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the prior
written consent of the Registered Holder.
SECTION 11. Warrant Register. The Company shall maintain at its
principal executive offices books for the registration and the registration
of transfer of Warrants. The Company may deem and treat the Registered
Holder as the absolute owner hereof (notwithstanding any notation of
ownership or other writing thereon made by anyone) for all purposes and
shall not be affected by any notice to the contrary.
SECTION 12. Descriptive Headings; Governing Law. The
descriptive headings of the several Sections and paragraphs of this Warrant
are inserted for convenience only and do not constitute a part of this
Warrant. THE CONSTRUCTION, VALIDITY AND INTERPRETA TION OF THIS WARRANT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS OR CHOICE OF LAW OF THE STATE OF NEW YORK
OR ANY OTHER JURISDICTION WHICH WOULD RESULT IN THE APPLICATION OF THE LAWS
OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
* * * * *
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officers under its corporate
seal and to be dated as of the date hereof.
By: /s/ Xxxxx X. Xxxxx
________________________________
Name:
Title:
Attest:
/s/ Xxxxxxx X. Xxxxxxx
________________________________
EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. [ ]), hereby agrees to subscribe for the
purchase of ______ Warrant Shares covered by such Warrant and makes payment
herewith in full therefor at the price per share provided by such Warrant.
Signature _____________________
Address ______________________
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, _____________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the
attached Warrant (Certificate No. [ ]) with respect to the number of the
Warrant Shares covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
Dated: Signature _______________________
_______________________
Witness _______________________
