EXHIBIT 10.24
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is made as of the
date of its acceptance set forth on the signature page below by and between
International Logistics Limited, a Delaware corporation (the "Company"), and
Xxxx X. Xxxxxx, an individual subscribing for shares of the Company's capital
stock pursuant hereto (the "Management Investor"). Certain capitalized terms
that are used herein are defined in Section 6 of this Agreement. Capitalized
terms used but not defined herein shall have the meanings ascribed to them
under the Stockholders Agreement.
1. PURCHASE AND SALE OF SHARES AND GRANT OF WARRANTS.
(a) Upon the execution of this Agreement, (i) the Management
Investor will receive from the Company, and the Company will grant to the
Management Investor, warrants which, subject to the provisions hereof,
accord to the Management Investor the right to purchase (upon the vesting
of such warrants) up to 5,000 shares of Common Stock from the Company (the
"Warrants") and (ii) the Management Investor will purchase from the
Company, and the Company will sell and issue to the Management Investor,
the Shares that the Management Investor elects to purchase pursuant to an
exercise of, and subject to the terms of, his Warrants. The Management
Investor's election to purchase such Warrants shall constitute a
subscription for the Shares and shall be evidenced by the Management
Investor's completion of the "Management Investor Election" form attached
hereto. The Management Investor will deliver to the Company the full
purchase price for the Shares purchased hereunder by check, wire transfer,
bank draft or money order made payable to "International Logistics
Limited". The purchase price per share for Shares purchased upon exercise
of the Warrants is the Warrant Purchase Price. The Management Investor
agrees to enter into the Stockholders Agreement and the Registration Rights
Agreement concurrently with the execution of this Agreement.
(b) In connection with the purchase and sale of the Shares
hereunder and the grant and receipt of the Warrants hereunder, the
Management Investor represents and warrants to the Company that:
(i) The Management Investor understands that (A) the
Securities have not been registered under the Securities Act, nor
qualified under the securities laws of any other jurisdiction, (B) the
Warrants are non-transferable, (C) the Securities cannot be resold
unless they subsequently are registered under the Securities Act and
qualified under applicable state securities laws, unless the Company
determines that exemptions from such registration and qualification
requirements are available, and (D) except as otherwise set forth in
the Stockholders Agreement and the Registration Rights Agreement, the
Management Investor has no right to require such registration or
qualification;
(ii) The Securities to be acquired by the Management
Investor pursuant to this Agreement will be acquired for the
Management Investor's own account and not with a view to, or intention
of, distribution thereof in violation of the Securities Act, or any
applicable state securities laws, and the Securities will not be
disposed of in contravention of the Securities Act or any applicable
state securities laws;
(iii) The Management Investor has substantial knowledge and
experience in financial and business matters, has specific experience
making investment decisions of a similar nature, and is capable,
without the use of a financial advisor, of utilizing and analyzing the
information made available in connection with the acquisition of the
Securities and of evaluating the merits and risks of an investment in
the Securities. The Management Investor will provide the Company,
upon request, with such information concerning any prior investment
experience, business or professional experience and other information
as the Company may deem necessary to further evaluate the foregoing
representations;
(iv) The Management Investor has carefully reviewed and
understands the risks of, and other considerations relating to, an
investment in the Securities;
(v) The Management Investor understands that his investment
in the Securities is subject to significant economic risk, including
the relative illiquidity resulting from the fact that the Securities
(A) have not been registered under the Securities Act and, therefore,
cannot be sold unless they are subsequently registered under the
Securities Act or they are sold pursuant to an exemption from such
registration, and (B) are subject to additional restrictions as
provided herein. The Management Investor is able to bear such
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economic risk of his investment in the Securities for an indefinite
period of time;
(vi) The Management Investor has had an opportunity to ask
questions and receive answers concerning the terms and conditions of
the offering of the Securities and has had full access to such other
information concerning the Company as he or she has requested.
Without limiting the generality of the foregoing, the Management
Investor has been provided with copies of the Stockholders Agreement
and the Registration Rights Agreement and has had an opportunity to
review and ask questions and receive satisfactory answers concerning
the terms and conditions of such Stockholders Agreement and
Registration Rights Agreement;
(vii) The Management Investor is a resident and domiciliary
of the state or other jurisdiction hereinafter set forth opposite the
Management Investor's signature and the Management Investor has no
present intention of becoming a resident of any other state or
jurisdiction. If the Management Investor is a resident and
domiciliary of a state that requires the Company to ascertain certain
other information regarding the Management Investor, the Company may
attach a page to this Agreement containing additional representations
to be made by the Management Investor in connection with the
Management Investor's investment in the Securities, and by signing
this Agreement, the Management Investor shall be deemed to have made
such additional representations to the Company;
(viii) This Agreement, the Stockholders Agreement and the
Registration Rights Agreement constitute the legal, valid and binding
obligations of the Management Investor, enforceable in accordance with
their respective terms, and the execution, delivery and performance of
this Agreement, the Stockholders Agreement and the Registration Rights
Agreement by the Management Investor does not and will not conflict
with, violate or cause a breach of any agreement, contract or
instrument to which the Management Investor is a party or any order,
judgment or decree to which the Management Investor is subject; and
(ix) The Management Investor has not received and is not
relying upon any written offering literature or prospectus other than
the Stockholders Agreement and the Registration Rights Agreement, and
has not received
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and is not relying upon any oral representations which are in any
manner inconsistent with the written information contained in such
document.
(c) The Management Investor further acknowledges and agrees
that:
(i) none of (A) the issuance of the Shares to the
Management Investor, (B) the grant of the Warrants to the Management
Investor or (C) any provision contained herein shall entitle the
Management Investor to remain in the employment of the Company or
affect the right of the Company to terminate the Management Investor's
employment at any time for any reason;
(ii) the Company shall have no duty or obligation to
disclose to the Management Investor and the Management Investor shall
have no right to be advised of, any material information regarding the
Company, its Subsidiaries or Affiliates at any time prior to, upon or
in connection with the repurchase of the Securities upon the
termination of the Management Investor's employment with the Company
or as otherwise provided hereunder;
(iii) the Management Investor is to be an officer of the
Company, and has a high degree of familiarity with the business and
assets of the Company and the prospects of such business;
(iv) the Company is entering into this Agreement in reliance
upon the Management Investor's representations and warranties herein;
(v) all information which the Management Investor has
provided to the Company concerning the Management Investor, his or her
financial position and knowledge of and experience with financial and
business matters is correct and complete as of the date set forth at
the end of this Agreement, and if there should be any material change
in such information prior to the closing of this offering, the
Management Investor will immediately provide the Company with such
information; and
(vi) the Management Investor is aware of the provisions of
Section 83(b) of the Internal Revenue Code of 1986, and the
regulations promulgated thereunder and has consulted with his or her
tax advisor as to the advisability of filing an election under said
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Section. The Management Investor acknowledges that the Management
Investor has received independent tax advice with respect to tax
consequences resulting from the transactions contemplated herein.
(d) The Company and the Management Investor acknowledge and
agree that this Agreement has been executed and delivered and the Shares
(upon exercise of the Warrants) and the Warrants have been issued and
granted, respectively, hereunder, in connection with and as a part of the
compensation and incentive arrangements between the Company and the
Management Investor.
2. AGREEMENT TO THE STOCKHOLDERS AGREEMENT. The Management
Investor acknowledges and agrees that Securities are being issued (or
granted) hereunder pursuant to, and are subject in all respects to, this
Agreement as well as the Registration Rights Agreement, the Stockholders
Agreement and the Warrant Agreement, the terms and conditions of which are
incorporated herein as if set forth fully herein. The Management Investor
acknowledges and agrees to all the terms and conditions of this Agreement and
such Stockholders Agreement, Registration Rights Agreement and Warrant
Agreement, including the rights of repurchase, tag-along and drag-along
rights, rights of first refusal, vesting requirements, restrictions on
transfer and other provisions set forth herein and in such Stockholders
Agreement, Registration Rights Agreement and Warrant Agreement. The
Management Investor acknowledges that the certificates evidencing the Shares
shall be imprinted with a legend providing notice of such restrictions
substantially in the form set forth herein and in Section 10 of the
Stockholders Agreement. The Management Investor is aware that, except as
expressly provided in the Registration Rights Agreement, the Management
Investor has no right to require registration of any of the Securities and
must bear the economic risk of illiquid Securities. The Management Investor
is also aware of and familiar with the provisions of the Stockholders
Agreement relating to the management of the Company and the provisions
regarding the election of members to the Board.
3. BUYBACK PROVISIONS APPLICABLE TO THE SECURITIES.
(a) BUYBACK. If at any time prior to the initial public
offering of the Company, the Management Investor's employment with the
Company is terminated by either the Company or the Management Investor for
any reason, then the Company or its designee(s) hereby agrees to repurchase,
and the Management Investor and his transferees, if any, hereby agree to
sell, the Securities (i.e. all of the Shares and the Warrants that have not
been cancelled and terminated pursuant to the Warrant Agreement),
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in whole, that are then owned by the Management Investor or any transferee
(such repurchase and sale being the "Buyback"). The Company will, in
connection with the Buyback, be entitled to receive customary representations
and warranties from the sellers regarding such sale and to require that all
sellers' signatures be guaranteed.
Notwithstanding anything to the contrary contained herein, the
Buyback shall be subject to applicable restrictions contained in the Delaware
General Corporation Law and in the Company's and its Subsidiaries' debt and
equity financing agreements. If any such restrictions prohibit the Buyback
to any extent, the Company shall repurchase such Securities and the
Management Investor (and any transferees) shall sell such Securities, to the
extent permitted by such restrictions within the time period specified in
Section 3(b) below, and the Management Investor (and any transferees) shall
complete the repurchase and sale of the remaining Securities subject to the
Buyback as soon as they are permitted to do so under such restrictions. The
Management Investor shall be entitled to receive, and the Company shall pay,
interest on any portion of the Securities being sold subject to the
restrictions set forth in this paragraph, with such interest accruing at an
annual rate of 10% (beginning of the date that such Securities would have
been sold but for the restrictions), and with such interest being paid on the
date that such restricted portion of the Securities is repurchased.
(b) BUYBACK PRICE. The price applicable to the Buyback
described in Section 3(a) above shall be as follows:
(i) WARRANTS. If the Management Investor's employment
with the Company is terminated for Cause or as a result of the resignation of
the Management Investor (other than a resignation resulting from a diminution
in responsibility), then the aggregate repurchase/sale price for the Warrants
shall be equal to zero dollars ($0.00). If the Management Investor's
employment with the Company is terminated in any other manner, then the
aggregate repurchase/sale price for the Warrants shall be equal to the
Warrant Market Value as of the Date of Termination. Such repurchase/sale
price shall be paid by the Company by check, wire transfer, bank draft or
money order (subject to the obligations of the Management Investor as set
forth in Section 3(a)) within 60 days after the Date of Termination.
(ii) SHARES. If the Management Investor's employment
with the Company is terminated for Cause or as a result of the resignation
(other than a resignation resulting from a diminution in responsibility) of
the Management Investor, then the repurchase/sale price per Share shall be
equal to the LOWER of cost or the Fair Market Value as of the Date of
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Termination, with such amount to be paid (subject to the obligations of the
Management Investor as set forth in Section 3(a)) within two years after the
Date of Termination. If the Management Investor's employment is terminated
as a result of the expiration of his Employment Agreement or as a result of
the death or Disability of the Management Investor, then the repurchase/sale
price per share shall be equal to the Fair Market Value as of the Date of
Termination, with such amount (subject to the obligations of the Management
Investor as set forth in Section 3(a)) to be paid within 90 days (60 days if
termination is caused by the death or Disability of the Management Investor)
after the Date of Termination. If the Management Investor's employment is
terminated in any other manner, then the repurchase price per share shall be
the HIGHER of cost or the Fair Market Value as of the Date of Termination,
with such amount to be paid (subject to the obligations of the Management
Investor as set forth in Section 3(a)) within 60 days after the Date of
Termination.
(c) IPO. The Company hereby agrees that upon consummation of
its initial public offering, neither the Company nor its designees shall have
any right or obligation to repurchase any of the Securities that are then
owned by the Management Investor or its transferees and that the provisions
of Sections 3(a) and 3(b) above shall have no further force and effect. The
Management Investor hereby agrees that upon consummation of the Company's
initial public offering, neither the Management Investor nor its transferees
shall have any right or obligation to sell to the Company any of the
Securities that are then owned by the Management Investor or its transferees
and that the provisions of Sections 3(a) and 3(b) above shall have no further
force and effect.
4. TRANSFER RESTRICTIONS. The Management Investor shall hold the
Securities subject to the terms of the Stockholders Agreement, the
Registration Rights Agreement, the Warrant Agreement and the terms of this
Agreement. As provided in the Stockholders Agreement, the Shares may be
transferred in certain limited circumstances. As also provided in the
Stockholders Agreement and the Warrant Agreement, no Warrants may be
transferred. Any transferee of any Securities shall take those Securities
subject to the terms of the Stockholders Agreement, the Registration Rights
Agreement, the Warrant Agreement and this Agreement, including, without
limitation, the repurchase rights set forth in Section 3 of this Agreement.
Any such transferee must, upon the request of the Company, execute an
agreement agreeing to be bound by the Stockholders Agreement, the
Registration Rights Agreement, the Warrant Agreement and this Agreement and
must agree to such other waivers, limitations and restrictions as the Company
may reasonably require. The Company
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shall not, and shall not permit any transfer agent or registrar for any
shares of the Company's capital stock to, transfer upon the books of the
Company any shares of the Company's capital stock originally issued hereunder
or pursuant hereto in any manner except in accordance with this provision,
and any purported transfer not in compliance herewith shall be void.
5. SECURITIES LAW RESTRICTIONS AND OTHER RESTRICTIONS ON TRANSFER
OF SHARES.
(a) The Management Investor is advised that federal and state
securities laws govern and restrict the Management Investor's right to offer,
sell or otherwise dispose of any Securities unless the Management Investor's
offer, sale or other disposition thereof is registered under the Securities
Act and state securities laws, or in the opinion of the Company's counsel,
such offer, sale or other disposition is exempt from registration or
qualification thereunder. The Management Investor agrees that the Management
Investor will not offer, sell or otherwise dispose of any such Securities in
any manner which would: (i) require the Company to file any registration
statement with the Commission (or any similar filing under state law) or to
amend or supplement any such filing or (ii) violate or cause the Company to
violate the Securities Act, the rules and regulations promulgated thereunder
or any other state or federal law. The certificates for any Shares will bear
such legends as the Company deems necessary or desirable in connection with
the Securities Act or other rules, regulations or laws.
(b) The certificates representing the Shares will bear the
following legends:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAW, AND SUCH SECURITIES 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 REASONABLY SATISFACTORY TO THE COMPANY SUCH REGISTRATION
AND QUALIFICATION ARE NOT REQUIRED."
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THAT CERTAIN
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, DATED AS OF NOVEMBER 7,
1996, A SUBSCRIPTION AGREEMENT, DATED AS OF MARCH 3, 1997, AND A SECOND
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT DATED AS OF NOVEMBER 7,
1996 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
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SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, SUBSCRIPTION
AGREEMENT AND SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
PROVIDE, AMONG OTHER THINGS, FOR CERTAIN RESTRICTIONS ON VOTING, SALE,
TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
EVIDENCED BY THIS CERTIFICATE 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 A PARTY TO SUCH SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT SHALL BE NULL AND VOID."
(c) Notwithstanding any other provision contained herein, the
Company may refuse to register any transfer of Securities if the registration
of such transfer would require the Company to register any class of equity
securities with the Commission under the Securities Exchange Act (except in
connection with an effective registration statement under the Securities Act).
(d) Unless otherwise set forth in the Stockholders Agreement or
the Registration Rights Agreement, the Management Investor may not effect any
Public Sale or distribution of any Shares or other equity securities of the
Company, or any Warrants or other securities convertible into or exchangeable
or exercisable for any of the Company's equity securities, during the ten
days prior to and the 120 days after the effectiveness of any underwritten
public offering of any class of the Company's equity securities, except as
part of such underwritten public offering or if otherwise consented to by the
Company in writing prior to such sale or distribution.
6. DEFINITIONS.
"AFFILIATE" means with respect to any Person, any other Person that
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by
agreement or otherwise.
"BOARD" means the board of directors of the Company.
"CAUSE" shall have the meaning set forth in the Employment Agreement.
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"COMMISSION" means the United States Securities and Exchange
Commission.
"COMMON STOCK" means the Company's common stock, par value $0.001
per share, or in the event that the outstanding Common Stock is hereafter
changed into or exchanged for different stock or securities of the Company,
such other stock or securities.
"DATE OF TERMINATION" shall mean (i) if the Management Investor's
employment is terminated by his death, the date of his death, (ii) if the
Management Investor's employment is terminated by reason of his Disability,
the date of the opinion of a physician opining to such effect, (iii) if the
Management Investor's employment is terminated for Cause, or without Cause by
the Company, the date of such termination, (iv) if the Management Investor
resigns or retires, the date of such resignation or retirement, and (v) if
the Company's Board determines that a Synergy Event (as such term is defined
in the Warrant Agreement) has occurred, the date of such determination.
"DISABILITY" shall mean the Management Investor's physical or
mental disability or infirmity which, in the opinion of a competent physician
selected by the Board, renders the Management Investor unable to perform his
duties under the Management Investor's Employment Agreement for more than 90
days during any 180-day period.
"EMPLOYMENT AGREEMENT" means the Employment Agreement dated as of
March 3, 1997, by and between the Management Investor and the Company.
"FAIR MARKET VALUE" means the fair market value (as determined by a
nationally recognized investment banking, valuation or appraisal firm of the
Company's choice paid for by the Company) of the Company's common shares (or
other securities if in the context of untraded securities distributed in
connection with a Qualified Sale) divided by the number of such shares, as
determined on a fully-distributed basis without regard to liquidity or size
relative to the number of shares outstanding.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department,
agency or political subdivision thereof.
"PUBLIC SALE" means any sale pursuant to a registered public
offering under the Securities Act or any sale to the
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public pursuant to Rule 144 promulgated under the Securities Act (if and as
modified by Rule 701(c) under the Securities Act) effected through a broker,
dealer or market maker.
"QUALIFIED SALE" shall mean (i) any sale of all or substantially
all of the assets of the Company or (ii) any sale, merger or liquidation of
the Company with or into any entity (other than OCM Principal Opportunities
Fund, L.P., TCW Special Credits Fund V - The Principal Fund, Logistical
Simon, L.L.C., or any Affiliate of the foregoing) whereby such entity 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.
"REGISTRATION RIGHTS AGREEMENT" means the Second Amended and
Restated Registration Rights Agreement dated as of November 7, 1996 by and
among the Company and the Investors listed in Exhibit A thereto, as the same
may be amended from time to time.
"SECURITIES" means the Shares and the Warrants.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"SHARES" means, with respect to the Management Investor, (a) any
shares of Common Stock of the Company purchased by the Management Investor
upon exercise of the Warrants and (b) any shares of the capital stock of the
Company issued in respect of any of the securities described in clause (a)
above, whether by way of stock dividend, stock split, merger, consolidation,
reorganization or other recapitalization. Except as otherwise expressly
provided in the Stockholders Agreement, each subsequent holder of the Shares
shall succeed to all rights and obligations hereunder attributable to the
Management Investor as a holder of Shares.
"STOCKHOLDERS AGREEMENT" means the Second Amended and Restated
Stockholders Agreement dated as of November 7, 1996 by and among the Company
and the Holders listed in Exhibit A thereto, as the same may be amended from
time to time.
"SUBSIDIARY" means any corporation of which the Company owns,
directly or through one or more intermediaries, securities having a majority
of the ordinary voting power in electing the board of directors of such
corporation.
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"WARRANT AGREEMENT" means that warrant certificate (#__), executed
by the Company as of March 3, 1997, certifying that the Management Investor
has been granted the Warrants by the Company.
"WARRANT MARKET VALUE" means the amount by which the Fair Market
Value multiplied by the number of common shares underlying the Warrants
exceeds the Warrant Purchase Price multiplied by the number of common shares
underlying the Warrants. If the Warrant Purchase Price is greater than or
equal to the Fair Market Value, then the "Warrant Market Value" shall equal
$0.00.
"WARRANT PURCHASE PRICE" has the meaning set forth in the Warrant
Agreement.
7. NOTICES. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall
be deemed to have been duly given and made and served either by personal
delivery to the person for whom it is intended or if deposited, postage
prepaid, registered or certified mail, return receipt requested, in the
United States mail:
If to the Company, addressed to:
International Logistics Limited
000 X. Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
With copies to:
Milbank, Tweed, Xxxxxx & XxXxxx
000 X. Xxxxxxxx Xx.
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
If to the Management Investor, addressed to:
the Management Investor at his address shown on the stock records
of the Company, or at such other address as the Management
Investor may specify by written notice to the Company
8. MISCELLANEOUS.
(a) Upon its acceptance by the Company, this Agreement shall be
binding upon and inure to the benefit of the Company and its successors and
assigns and the
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Management Investor and the Management Investor's executors
or administrators, personal representatives, heirs, legatees and
distributees.
(b) This Agreement shall be governed by and construed in
accordance with the local law, and not the law of conflicts, of the State
of Delaware.
(c) In any conflict between the terms and provisions of this
Agreement and the terms and provisions of the Stockholders Agreement, the
Warrant Agreement or the Registration Rights Agreement, the terms and
provisions of the Stockholders Agreement, the Warrant Agreement or
Registration Rights Agreement, as the case may be, shall govern.
(d) No course of dealing or any delay or failure to exercise any
right, power or remedy hereunder on the part of any party hereto shall
operate as a waiver of or otherwise prejudice such party's rights, powers
or remedies.
(e) Notwithstanding anything in this Agreement, the Company
shall not be obligated to issue, grant or sell any Securities to any Person
if, in the judgment of the Board, such issuance or sale may violate Federal
or applicable state securities laws or regulations or may require the
Company to register or qualify any such Securities under any Federal or
state securities laws, or require the Company or any of its agents or
representatives to register or qualify with any governmental agency or
organization, pursuant to such laws or regulations.
(f) This Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter hereof
between the parties and contains the sole and entire agreement between the
parties hereto with respect to the subject matter hereof.
9. JOINT SIGNATORIES; SUCCESSORS AND ASSIGNS. If this Agreement is
signed by more than one Person or entity, then the obligations of the
undersigned shall be joint and several, and the acknowledgements,
representations, warranties and agreements herein contained shall be deemed to
be made by and be binding upon each such Person or entity. This Agreement shall
survive the death or disability of the undersigned and shall be binding upon the
undersigned's heirs, executors, administrators, successors and assigns.
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10. ACCREDITED INVESTOR. Please initial all boxes which apply to
you.
_ I will be a director or executive officer of the Company;
_ I am a natural person whose individual net worth, or joint
net worth with my spouse, exceeds $1 million;
_ I am a natural person and had individual (NOT JOINT) income
in excess of $200,000 in each of the two most recent years
and reasonably expect to reach the same income level in the
current year;
_ I am a natural person and had joint income (together with my
spouse) in excess of $300,000 in each of the two most recent
years and reasonably expect to reach the same income level
in the current year;
_ I am a person who is subscribing to purchase $150,000 or
more of the Securities, and this investment does not exceed
10% of my personal net worth or my joint net worth with my
spouse;
_ The undersigned is an organization described in Section
501(c)(3) of the Internal Revenue Code of 1986 as amended
(I.E., tax exempt entities), a corporation, a trust, a
Massachusetts or similar business trust, or a partnership,
not formed for the specific purpose of acquiring Securities,
with total assets in excess of $5 million and the investment
decisions of which are directed by one or more persons able
to make the representation set forth in Section 8(e) above;
_ The undersigned is an employee benefit plan within the
meaning of Title I of the Employment Retirement Income
Security Act of 1974, the investment decisions of which are
made by a plan fiduciary, as defined in Section 9(21) of
such Act, which is either a bank, a savings and loan
association, an insurance company, or a registered
investment advisor;
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_ The undersigned is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income
Security Act of 1974, which either has total assets in
excess of $5 million or is a self-directed plan, the
investment decisions of which are made solely by one or more
persons able to make the representations contained in
Section 8(e) above and who fits into one of the above
categories; or
_ The undersigned is an entity in which all of the equity
owners are accredited investors, falling into one or more of
the categories described above.
11. CERTIFICATION AS TO TAXPAYER IDENTIFICATION NUMBER AND BACKUP
WITHHOLDING AND NON-FOREIGN STATUS-SUBSTITUTE FORM W-9; SOCIAL SECURITY OR
TAX ID NUMBER. Under penalties of perjury, the Management Investor certifies by
his or her signature below that (a) the number shown on this form is his or her
correct taxpayer identification number; (b) the Management Investor is not
subject to backup withholding either because (i) the Management Investor is
exempt from backup withholding, (ii) the Management Investor has not been
notified that the Management Investor is subject to backup withholding as a
result of a failure to report all interest or dividends, or (iii) the Internal
Revenue Service has notified the Management Investor that the Management
Investor is no longer subject to backup withholding; (c) the Management Investor
is not a non-resident alien for purposes of U.S. income taxation; (d) the
Management Investor's home address (individual) or business address (entity) set
forth in this Agreement is correct; and (e) if the Management Investor becomes a
non-resident alien, the Management Investor will notify the Company within 60
days of doing so.
IF THE MANAGEMENT INVESTOR HAS BEEN NOTIFIED BY THE IRS THAT THE MANAGEMENT
INVESTOR IS PRESENTLY SUBJECT TO BACKUP WITHHOLDING, STRIKE OUT THE LANGUAGE
UNDER (b) ABOVE BEFORE SIGNING.
12. TYPE OF OWNERSHIP FOR THE SHARES TO BE ACQUIRED.
(Check the Appropriate Box)
_ INDIVIDUAL OWNERSHIP BY UNMARRIED PERSON
_ OWNERSHIP BY MARRIED PERSON AS SOLE AND SEPARATE PROPERTY
(if the Management Investor lives in a state which has
community property
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laws, signatures of both spouses may be required)
_ COMMUNITY PROPERTY (signatures of both spouses are required)
_ JOINT TENANTS WITH RIGHT OF SURVIVORSHIP (both parties must
sign)
_ TENANTS-IN-COMMON (both parties must sign)
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MANAGEMENT INVESTOR ELECTION AND SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the latest date written below.
MANAGEMENT INVESTOR:
No. of Warrants: 5,000
------------------------------------- ------------------------------------
Management Investor (Print or Business Name
Type Name)
------------------------------------- ------------------------------------
Signature Business Address
------------------------------------- ------------------------------------
Social Security or Tax ID # City and State Zip
------------------------------------- ------------------------------------
Residence Street Address Business Telephone
-------------------------------------
City and State Zip Mail Correspondence to:
__ Residence __ Business
-------------------------------------
Residence Telephone
-------------------------------------
Other Investor (Print or Type
Name)
-------------------------------------
Signature
-------------------------------------
Social Security or Tax ID #
-------------------------------------
Residence Street Address
-------------------------------------
City and State Zip
-------------------------------------
Residence Telephone
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COMPANY:
Accepted as of this 3rd day of March, 1997.
INTERNATIONAL LOGISTICS LIMITED
a Delaware corporation
By: ___________________________________
Xxxxx X. Xxxxxx
Its: President and
Chief Executive Officer
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