EXHIBIT 4.2
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 SERIES B PREFERRED STOCK
Date of Issuance: May 31, 2000 Certificate No. W- 2
For value received, UNITED SHIPPING & TECHNOLOGY, INC., a
Utah corporation (the "Company"), hereby grants to TH XXX.XXXXXX INTERNET
PARALLEL PARTNERS, L.P., a Delaware limited partnership ("THLI"), or its
transferees and assigns, the right to purchase from the Company up to a
number of Warrant Shares (as defined herein) equal to $13,872,780 divided
by the Exercise Price, at a price per share equal to the Market Price as of
the date of exercise (the "Exercise Price"). This Warrant is one of the
"Preferred Warrants" (collectively, the "Preferred 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 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 November 30, 2001 or, if
such day is not a business day, on the next preceding business day (the
"Exercise Period"); provided, that (i) the Aggregate Expense Price (as
defined in Section 1(B)(i)(d) below) for each partial exercise of the
purchase rights represented hereby must be at least $5,000,000, 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. Notwithstanding any contained in the
foregoing to the contrary, the Registered Holders' rights to receive the
Warrant Shares shall terminate if the Company fails to receive shareholder
approval pursuant to Section 1B(ii) prior to November 30, 2001.
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 12 hereof; provided, that in the event that (i) the approval of the
Company's shareholders described in Section 5.07 of the Purchase Agreement
has not been obtained, or (ii) 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 approval has been obtained and
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 not reduce its authorized
but unissued shares of Preferred Stock which have been reserved solely for
the purpose of issuance upon the exercise of the Preferred Warrants, and in
the event that the maximum number of shares of Preferred Stock issuable
upon the exercise of the Preferred Warrants exceeds the number of shares of
Preferred Stock so reserved, the Company shall, prior to the exercise of
the Preferred Warrants representing such excess, increase its authorized
but unissued shares of Preferred Stock by at least the amount of such
excess shares of Preferred Stock. 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 2A), 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, 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 Preferred 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. Organic Change.
2A. Organic Change. Any recapitalization, reorganization,
reclassification, consolidation, merger, sale of all or substantially all
of the Company's assets or other transaction which is effected in such a
way that 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 an "Organic
Change". Prior to the consummation of any Organic Change, the Company shall
make appropriate provision to ensure that each Registered Holder of
Warrants shall thereafter have the right to acquire and receive upon
exercise thereof, in lieu of or addition to (as the case may be) the
Warrant Shares immediately theretofore acquirable and receivable upon
exercise of such Registered Holder's Warrants, such shares of stock,
securities or assets as may be issued or payable with respect to or in
exchange for the number of Warrant Shares immediately theretofore
acquirable and receivable upon exercise of such Registered Holder's
Warrants had such Organic Change not taken place. In any such case, the
Company shall make appropriate provision with respect to such Registered
Holder's rights and interests to insure that the provisions hereof
(including this Section 2) shall thereafter be applicable to the Warrants.
The Company shall not effect any such Organic Change unless, prior to the
consummation thereof, the successor entity (if other than the Company)
resulting from such Organic Change (including a purchaser of all or
substantially all the Company's assets) assumes by written instrument the
obligation to deliver to each Registered Holder of Warrants such shares of
stock, securities or assets as, in accordance with the foregoing
provisions, such Registered Holder may be entitled to acquire upon exercise
of Warrants.
2B. Notices.
(i) The Company shall give written notice to the
Registered Holder at least thirty (30) days prior to the date on which the
Company closes its books or takes a record 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 Holder at least thirty (30) 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:
"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.
"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 forty five (45) 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 Stock" means the Company's Series B Convertible
Preferred Stock, par value $0.004 per share.
"Registered Holder" means the holder of this Warrant as
reflected in the records of the Company maintained pursuant to the
provisions of Section 11.
"Required Holders" means the holders of at least two-thirds
of the aggregate purchase rights represented by the Preferred Warrants as
originally issued which remain outstanding and unexercised.
"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 the Preferred 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 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 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 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
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 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 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 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. 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 (assuming such Warrant Shares were
immediately converted into Common Stock) on the date of such exercise.
SECTION 13. 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-2), 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-2) 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 _______________________
