EXHIBIT 4.3
THIS WARRANT WAS ORIGINALLY ISSUED ON MAY 31, 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 MAY 15, 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 COMMON STOCK
Date of Issuance: May 31, 2000 Certificate No. W-3
For value received, UNITED SHIPPING & TECHNOLOGY, INC., a Utah
corporation (the "Company"), hereby grants to TH XXX.XXXXXX INTERNET
PARTNERS, L.P., a Delaware limited partnership ("THLI"), or its transferees
and assigns, the right to purchase from the Company up to 228,469 Warrant
Shares (as defined herein) at a price per share equal to (i) the lowest
exercise price per share of Common Stock (the "Base Exercise Price") of any
of the initially approved Options for 3,000,000 shares of Common Stock
issued pursuant to the Company's 2000 Stock Option Plan (the "2000
Options") less (ii) in the event that an indemnification payment is due by
the Company pursuant to Section 9.06 of the Purchase Agreement and to the
extent such indemnification payment is payable pursuant to the terms
thereof by reduction of the exercise price of the Common Warrants (as
defined below) (such indemnification amount, the "Indemnification Amount"),
an amount equal to such Indemnification Amount divided by the total number
of shares of Common Stock issuable upon full exercise of all Common
Warrants (including this Warrant) (provided that the minimum Exercise Price
resulting from the adjustments in this clause (ii) as of the final date of
such adjustments shall be $.004 per share) (such price per share, as
adjusted from time to time, the "Exercise Price"). In the event that the
difference between the highest and the lowest exercise price per share of
Common Stock of all of the 2000 Options is material, the "Purchasers" (as
defined in the Purchase Agreement) and the Company will negotiate in good
faith to consider a mutually acceptable, alternative formula for
calculating the Base Exercise Price in a manner which is not unduly
burdensome for either party. This Warrant is one of the "Common Warrants"
(collectively, the "Common Warrants") issued pursuant to the terms of the
Securities Purchase Agreement dated as of May 15, 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 5 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 May 31, 2004 or, if such
day is not a business day, on the next preceding business day (the
"Exercise Period"); provided, that (i) this Warrant may only be exercised
in the event and to the extent that any of the 2000 Options have been
exercised by the holders thereof from time to time for a total number of
Warrant Shares equal to (x) the total number of shares of Common Stock then
issuable upon full exercise of this Warrant (plus any Warrant Shares that
have been previously issued upon exercise of any portion of this Warrant),
multiplied by (y) a fraction, the numerator of which is the aggregate
number of shares of Common Stock represented by all 2000 Options that have
been so exercised, and denominator of which is the total number of 2000
Options that have been issued and have not been forfeited or terminated
(provided that this Warrant will become fully exercisable in the event that
any indemnification payment by the Company is due pursuant to Section 9.06
of the Purchase Agreement), and (ii) any delay described in Section 1B(ii)
which causes the issuance of the Warrant Shares to occur beyond the
Exercise Period shall in no event limit or affect the Registered Holder's
rights to receive such Warrant Shares at the termination of such delay.
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 together with any cash
payable in lieu of a fraction of a share pursuant to the provisions of
Section 14 hereof; provided, that in the event that the applicable waiting
period under the Xxxx-Xxxxx-Xxxxxx Improvements Act of 1976, as amended, as
described in Section 7.02 of the Purchase Agreement has not expired, the
Company shall not issue such Warrant Shares until such waiting period has
expired. 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 issuance of certificates for Warrant Shares upon
exercise of this Warrant shall be made without charge to the Registered
Holder or the Purchaser for any issuance tax in respect thereof or other
cost incurred by the Company in connection with such exercise and the
related issuance of Warrant Shares.
(v) 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.
(vi) The Company shall assist and cooperate with the
Registered Holder or any Purchaser required to make any governmental
filings or obtain any governmental approvals prior to or in connection with
any exercise of this Warrant (including any filings described in Section
1B(ii) hereof.
(vii) 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.
(viii) The Company shall at all times reserve and keep
available out of its authorized but unissued Common Stock solely for the
purpose of issuance upon the exercise of the Common Warrants, the maximum
number of Warrant Shares issuable upon the exercise of the Common Warrants.
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 or any requirements of any domestic
securities exchange upon which shares of Common Stock or other securities
constituting Warrant Shares may be listed (except for official notice of
issuance which shall be immediately delivered by the Company upon each such
issuance).
(ix) If the Warrant Shares issuable by reason of exercise
of this Warrant are convertible into or exchangeable for any other stock or
securities of the Company, the Company shall, at the Purchaser's option and
upon surrender of this Warrant by such Purchaser as provided above together
with any notice, statement or payment required to effect such conversion or
exchange of Warrant Shares, deliver to such Purchaser (or as otherwise
specified by such Purchaser) a certificate or certificates representing the
stock or securities into which the Warrant Shares issuable by reason of
such conversion are convertible or exchangeable, registered in such name or
names and in such denomination or denominations as such Purchaser has
specified.
(x) The Company shall not, and shall not permit its
Subsidiaries to, directly or indirectly, by any action (including, without
limitation, reincorporation in a jurisdiction other than Utah, amending its
Articles of Incorporation or through any Organic Change (as defined in
Section 2D), issuance or sale of securities or any other voluntary action)
avoid or seek to avoid the observance or performance of any of terms of
this Warrant (except for any action which ratably affects all Warrant
Shares and shares of Common Stock), but shall at all times in good faith
assist in the carrying out of all such terms of Warrant. Without limiting
the generality of the foregoing, the Company shall (a) use its reasonable
best efforts to obtain all such authorizations, exemptions, or consents
from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this
Warrant, and (b) not undertake any reverse stock split, combination,
reorganization, or other reclassification of its capital stock which would
have the effect of making this Warrant exercisable for less than one share
of Common Stock.
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
Exercise Price shall be subject to adjustment from time to time as provided
in this Section 2, and 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. Adjustment of Exercise Price and Number of Shares upon
Issuance of Common Stock.
(i) If and whenever after the original date of issuance of
this Warrant the Company issues or sells, or in accordance with Section 2B
is deemed to have issued or sold, any shares of Common Stock for a
consideration per share less than the Market Price of the Common Stock
determined as of the date of such issue or sale, then immediately upon such
issue or sale the Exercise Price shall be determined by multiplying the
Exercise Price in effect immediately prior to such issue or sale by a
fraction, the numerator of which shall be the sum of (1) the number of
shares of Common Stock Deemed Outstanding immediately prior to such issue
or sale multiplied by the Market Price of the Common Stock determined as of
the date of such issuance of sale, plus (2) the consideration, if any,
received by the Company upon such issue or sale, and the denominator of
which shall be the product derived by multiplying the Market Price of the
Common Stock by the number of shares of Common Stock Deemed Outstanding
immediately after such issue or sale. In the event of a change in the Base
Exercise Price at any time after the original date of issuance of the
Warrant, any adjustments to the Exercise Price previously made pursuant to
this Section 2 shall be recalculated on a pro forma basis as if the Base
Exercise Price at the time of each such adjustment was the Base Exercise
Price after giving effect to such change. In the event that there is an
Indemnification Amount which result in a reduction of the Exercise Price,
any adjustments to the Exercise Price previously made pursuant to this
Section 2 shall be recalculated on a pro forma basis as if the reduction
resulting from the Indemnification Amount had occurred prior to each such
adjustment.
(ii) Upon each such adjustment of the Exercise Price hereunder,
the number of Warrant Shares acquirable upon exercise of this Warrant shall
be adjusted to the number of shares determined by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of
Warrant Shares acquirable upon exercise of this Warrant immediately prior
to such adjustment and dividing the product thereof by the Exercise Price
resulting from such adjustment.
(iii) Notwithstanding the foregoing, there shall be no
adjustment to the Exercise Price or the number of Warrant Shares obtainable
upon exercise of this Warrant with respect to (A) the issuance or granting
of Common Stock, Options or Convertible Securities to employees, officers,
consultants and directors of the Corporation and its Subsidiaries or the
exercise thereof pursuant to the Stock Option Plans, (B) the issuance or
granting of Options for up to 75,000 shares of Common Stock (as adjusted
for any stock splits, reverse stock splits, share combinations, stock
dividends, or similar reclassifications) to employees and consultants of
the Corporation outside of the Stock Option Plans, (C) the issuance of
Series B Preferred Stock upon exercise of the Warrants, (D) the issuance of
Common Stock upon (i) exercise of the Warrant To Purchase Shares of Common
Stock of United Shipping & Technology, Inc. or (ii) the conversion of the
9% Convertible Subordinated Promissory Note, in each case, dated as of
April 25, 2000, issued by the Company to J. Iver & Company, (E) the
issuance of Common Stock upon exercise of the Warrant To Purchase Common
Stock of United Shipping & Technology, Inc., dated as of September 24,
1999, issued to Bayview Capital Partners L.P. (the "Bayview Warrant"), (F)
the issuance of Common Stock upon conversion of the Convertible
Subordinated Note, dated as of September 24, 1999, issued by the Company to
CEX Holdings, Inc. (the "CEX Convertible Note"), (G) the issuance of no
more than 100,000 shares of Common Stock (as adjusted for any stock splits,
reverse stock splits, share combinations, stock dividends or similar
reclassifications) to Xxxx X. Xxxxxxxxxxx XX (or a trust solely for his
benefit) solely as payment in satisfaction of a court-approved settlement
of his claim against Corporate Express Delivery Systems, Inc., et al.,
pending in the United States District Court for the Southern District of
Texas, Houston Division (Case No. H-98-1271), (H) the issuance of Common
Stock upon exercise of the Company's Series B Convertible Preferred Stock,
par value $.004 per share (the "Preferred Stock") and (I) the issuance of
Preferred Stock upon exercise of the Preferred Warrants.
2B. Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Exercise Price under Section 2A, the following shall
be applicable:
(i) Issuance of Rights or Options. If the Company in any manner
grants or sells any Options and the price per share for which Common Stock
is issuable upon the exercise of such Options, or upon conversion or
exchange of any Convertible Securities issuable upon exercise of such
Options, is less than the Market Price of the Common Stock determined as of
such time, then the total maximum number of shares of Common Stock issuable
upon the exercise of such Options, or upon conversion or exchange of the
total maximum amount of such Convertible Securities issuable upon the
exercise of such Options, shall be deemed to be outstanding and to have
been issued and sold by the Company at such time for such price per share.
For purposes of this paragraph, the "price per share for which Common Stock
is issuable" is determined by dividing (A) the total amount, if any,
received or receivable by the Company as consideration for the granting or
sale of such Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of all such Options,
plus in the case of such Options which are exercisable into Convertible
Securities, the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the issuance or sale of such Convertible
Securities and the conversion or exchange thereof, by (B) the total maximum
number of shares of Common Stock issuable upon exercise of such Options or
upon the conversion or exchange of all such Convertible Securities issuable
upon the exercise of such Options. No further adjustment of the Exercise
Price shall be made upon the actual issuance of such Common Stock or of
such Convertible Securities upon the exercise of such Options or upon the
actual issuance of such Common Stock upon conversion or exchange of such
Convertible Securities.
(ii) Issuance of Convertible Securities. If the Company in any
manner issues or sells any Convertible Securities and the price per share
for which Common Stock is issuable upon conversion or exchange thereof is
less than the Market Price of the Common Stock determined as of such time,
then the maximum number of shares of Common Stock issuable upon conversion
or exchange of such Convertible Securities shall be deemed to be
outstanding and to have been issued and sold by the Company for such price
per share. For the purposes of this paragraph, the "price per share for
which Common Stock is issuable" is determined by dividing (A) the total
amount received or receivable by the Company as consideration for the issue
or sale of such Convertible Securities, plus the minimum aggregate amount
of additional consideration, if any, payable to the Company upon the
conversion or exchange thereof, by (B) the total maximum number of shares
of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities. No further adjustment of the Exercise Price shall
be made upon the actual issue of such Common Stock upon conversion or
exchange of such Convertible Securities, and if any such issue or sale of
such Convertible Securities is made upon exercise of any Options for which
adjustments of the Exercise Price had been or are to be made pursuant to
other provisions of this Section 2, no further adjustment of the Exercise
Price shall be made by reason of such issue or sale.
(iii) Change in Option Price or Conversion Rate. If the
purchase price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion or exchange of any Convertible
Securities, or the rate at which any Convertible Securities are convertible
into or exchangeable for Common Stock changes at any time, the Exercise
Price in effect at the time of such change shall be adjusted immediately to
the Exercise Price which would have been in effect at such time had such
Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or changed conversion
rate, as the case may be, at the time initially granted, issued or sold and
the number of Warrant Shares shall be correspondingly adjusted. For
purposes of this Section 2B, if the terms of any Option or Convertible
Security which was outstanding as of the date of issuance of this Warrant
are changed in the manner described in the immediately preceding sentence,
then such Option or Convertible Security and the Common Stock deemed
issuable upon exercise, conversion or exchange thereof shall be deemed to
have been issued as of the date of such change; provided, that (A) no such
change shall at any time cause the Exercise Price hereunder to be
increased, and (B) no adjustment to the Conversion Price pursuant to this
clause (iii) shall be made as a result of any adjustment to the exercise
and/or conversion price with respect to the Bayview Warrant, CEX
Convertible Note or the Preferred Warrants pursuant to and in accordance
with the antidilution protection provisions of such securities as in effect
on May 31, 2000.
(iv) Treatment of Expired Options and Unexercised Convertible
Securities. Upon the expiration of any Option or the termination of any
right to convert or exchange any Convertible Securities without the
exercise of such Option or right, the Exercise Price then in effect and the
number of Warrant Shares acquirable hereunder shall be adjusted immediately
to the Exercise Price and the number of shares which would have been in
effect at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination, never been issued. For purposes of this Section
2B, the expiration or termination of any Option or Convertible Security
which was outstanding as of the date of issuance of this Warrant shall not
cause the Exercise Price hereunder to be adjusted unless, and only to the
extent that, a change in the terms of such Option or Convertible Security
caused it to be deemed to have been issued after the date of issuance of
this Warrant.
(v) Calculation of Consideration Received. If any Common Stock,
Options or Convertible Securities are issued or sold or deemed to have been
issued or sold for cash, the consideration received therefor shall be
deemed to be the net amount received by the Company therefor. In case any
Common Stock, Options or Convertible Securities are issued or sold for a
consideration other than cash, the amount of the consideration other than
cash received by the Company shall be the fair value of such consideration,
except where such consideration consists of securities, in which case the
amount of consideration received by the Company shall be the Market Price
thereof as of the date of receipt. The fair value of any consideration
other than cash or securities shall be determined jointly by the Company
and the Required Holders. If such parties are unable to reach agreement
within a reasonable period of time, such fair value shall be determined by
an appraiser jointly selected by the Company and the Required Holders. The
determination of such appraiser shall be final and binding on the Company
and the Registered Holders of the Warrants, and the fees and expenses of
such appraiser shall be paid by the Company.
(vi) Integrated Transactions. In case any Option (other than
the Preferred Warrants) is issued in connection with the issue or sale of
other securities of the Company, together comprising one integrated
transaction in which no specific consideration is allocated to such Options
by the parties thereto, the Options shall be deemed to have been issued
without consideration.
(vii) Treasury Shares. The number of shares of Common Stock
outstanding at any given time does not include shares owned or held by or
for the account of the Company or any of its Subsidiaries, and the
disposition of any shares so owned or held shall be considered an issue or
sale of Common Stock.
(viii) Record Date. If the Company takes a record of the holders
of Common Stock for the purpose of entitling them (A) to receive a dividend
or other distribution payable in Common Stock, Options or in Convertible
Securities or (B) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed to be the
date of the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or the making of such
other distribution or the date of the granting of such right of
subscription or purchase, as the case may be.
2C. 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 Exercise Price
in effect immediately prior to such subdivision shall be proportionately
reduced and 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 Common 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.
2D. 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 each of the Registered Holders of the
Warrants 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 each such Registered Holder would have received in connection
with such Organic Change if such Registered Holder had exercised its
Warrants in full immediately prior to such Organic Change. In each such
case, the Company shall make appropriate provision with respect to such
holders' rights and interests to insure that the provisions of this Section
2 and Sections 3 and 4 hereof shall thereafter be applicable to the
Warrants. 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 each such holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such holder may be
entitled to acquire.
2E. 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 (including, without limitation, the granting of
stock appreciation rights, phantom stock rights or other rights with equity
features), then the Company's board of directors shall make an appropriate
adjustment in the Exercise Price and the number of Warrant Shares
obtainable upon exercise of this Warrant so as to protect the rights of the
holders of the Warrants; provided, that no such adjustment shall increase
the Exercise Price or decrease the number of Warrant Shares obtainable as
otherwise determined pursuant to this Section 2.
2F. Notices.
(i) Immediately upon any adjustment of the Exercise Price, the
Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such
adjustment.
(ii) 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 dividend or distribution
upon the Common Stock, (b) with respect to any pro rata subscription offer
to holders of Common Stock or (c) for determining rights to vote with
respect to any Organic Change, dissolution or liquidation.
(iii) 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. Liquidating Dividends. If the Company declares or
pays a dividend upon the Common Stock payable otherwise than in cash out of
earnings or earned surplus (determined in accordance with generally
accepted accounting principles, consistently applied) except for a stock
dividend payable in shares of Common Stock (a "Liquidating Dividend"), then
the Company shall pay to the Registered Holder of this Warrant at the time
of payment thereof the Liquidating Dividend which would have been paid to
such Registered Holder on the Warrant Shares had this Warrant been fully
exercised immediately prior to the date on which a record is taken for such
Liquidating Dividend, or, if no record is taken, the date as of which the
record holders of Common Stock entitled to such dividends are to be
determined.
Section 4. Purchase Rights. If at any time the Company grants,
issues or sells any Options, Convertible Securities or rights to purchase
stock, warrants, securities or other property pro rata to the record
holders of any class of Common Stock (the "Purchase Rights"), then the
Registered holder of this Warrant shall be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights
which such holder could have acquired if such holder had held the number of
Warrant Shares acquirable upon complete exercise of this Warrant
immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken,
the date as of which the record holders of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
SECTION 5. Definitions. The following terms have the meanings
set forth below:
"Common Stock" means, collectively, the Company's common stock,
par value $.004 per share, and any securities into which such common stock
is hereafter converted or exchanged.
"Common Stock Deemed Outstanding" means, at any given time, the
number of shares of Common Stock actually outstanding at such time, plus
the number of shares of Common Stock deemed to be outstanding pursuant to
Sections 2B(i) and 2B(ii) hereof whether or not the Options or Convertible
Securities are actually exercisable at such time.
"Market Price" of any security means the average of the closing
prices of such security's sales on all securities exchanges on which such
security may at the time be listed, or, if there has been no sales on any
such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and asked
prices quoted in the NASDAQ System as of 4:00 P.M., New York time, or, if
on any day such security is not quoted in the NASDAQ System, the average of
the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case
averaged over a period of the twenty (20) consecutive trading days
immediately prior to the day as of which "Market Price" is being
determined. If at any time such security is not listed on any securities
exchange or quoted in the NASDAQ System or the over-the-counter market, the
"Market Price" shall be the fair value thereof determined jointly by the
Corporation and the Required Holders. If such parties are unable to reach
agreement within a reasonable period of time, such fair value shall be
determined by an independent appraiser experienced in valuing securities
jointly selected by the Corporation and the Required Holders. The
determination of such appraiser shall be final and binding upon the
parties, and the Corporation shall pay the fees and expenses of such
appraiser.
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization or
government or department or agency thereof.
"Preferred Warrants" means, collectively, the "Preferred
Warrants" and "Additional Warrants" as defined in, and issued pursuant to,
the Purchase Agreement, and any warrants issued in exchange, substitution
or replacement therefor.
"Registered Holder" means the holder of this Warrant as
reflected in the records of the Company maintained pursuant to the
provisions of Section 13.
"Required Holders" means the holders of at least two-thirds of
the purchase rights represented by this Warrant as originally issued which
remain outstanding and unexercised.
"Stock Option Plans" means, collectively, the Corporation's
1995 Stock Option Plan, 1996 Director Stock Option Plan, and 2000 Stock
Option Plan (if and only to the extent approved by the Company's
stockholders).
"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 any 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 the Common Stock issuable upon
exercise of the Warrant; provided, that if the securities issuable upon
exercise of the Warrants 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 the Warrants 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 6. 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 7. 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 8. 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 Warrants 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. All Warrants
representing portions of the rights hereunder are referred to herein as the
"Warrants."
SECTION 9. 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 any or all of the Warrants
or Warrant Shares, the Registered Holder of this Warrant shall have the
right to require all or part of such Registered Holder's Warrants or
Warrant Shares to be exchanged for nonvoting stock or similar interests
that convey equivalent economic benefits to such Warrants or Warrant Shares
and include, in the case of Warrants, equivalent anti-dilution protection.
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 10. 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 11. 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 12. Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrants 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 Required Holders.
SECTION 13. 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 14. Fractions of Shares. The Company may, but shall not be
required to, issue a fraction of a Warrant Share upon the exercise of this
Warrant in whole or in part. As to any fraction of a share which the
Company elects not to issue, the Company shall make a cash payment in
respect of such fraction in an amount equal to the same fraction of the
Market Price of a Warrant Share on the date of such exercise.
SECTION 15. Descriptive Headings; Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted
for convenience only and do not constitute a part of this Warrant. THE
CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS OR CHOICE OF LAW OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION WHICH WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
* * * * *
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officers under its corporate
seal and to be dated as of the date hereof.
UNITED SHIPPING & TECHNOLOGY, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: CEO
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. W-3), 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. W-3) 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 _______________________
