Exhibit 10.10
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION IN COMPLIANCE WITH
SUCH ACT AND SUCH STATE LAWS OR (2) AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.
ANY PAYMENT REQUIRED UNDER SECTIONS 9 OR 10 OF THIS WARRANT IS SUBORDINATED TO
OTHER INDEBTEDNESS PURSUANT TO, AND TO THE EXTENT PROVIDED IN, AND IS OTHERWISE
SUBJECT TO THE TERMS OF, THE INTERCREDITOR AND SUBORDINATION AGREEMENT, DATED
SEPTEMBER 24, 1999 (THE "SUBORDINATION AGREEMENT"), AS THE SAME MAY BE AMENDED,
MODIFIED OR OTHERWISE SUPPLEMENTED FROM TIME TO TIME, BY AND AMONG UST DELIVERY
SYSTEMS, INC. AND UNITED SHIPPING & TECHNOLOGY, INC., AS CO-BORROWERS, EACH
SUBSIDIARY OF THE CO-BORROWERS LISTED ON EXHIBIT A THERETO, GENERAL ELECTRIC
CAPITAL CORPORATION, AS AGENT, AND THE HOLDERS FROM TIME TO TIME OF THE
OBLIGATIONS ARISING UNDER THE SUBORDINATED LOAN AGREEMENT REFERRED TO IN THE
SUBORDINATION AGREEMENT, INCLUDING, WITHOUT LIMITATION, THIS WARRANT.
WARRANT
TO PURCHASE COMMON STOCK OF
UNITED SHIPPING & TECHNOLOGY, INC.
SEPTEMBER 24, 1999
United Shipping & Technology, Inc., a Utah corporation (the
"Company"), does hereby certify and agree that Bayview Capital Partners LP, a
Delaware limited partnership or its successors and assigns ("Bayview" or
"Holder") are hereby entitled to purchase from the Company 1,366,220 shares of
the Company's Common Stock (the "Exercise Quantity"), all upon the terms and
provisions and subject to adjustment as provided in the Note and Warrant
Purchase Agreement between the Company, Bayview and UST Delivery Services, Inc.,
dated the date hereof (the "Purchase Agreement") and this Warrant (the
"Warrant"). The exercise price of the Common Stock for which this Warrant is
exercisable shall be $3.3125 per share, subject to adjustment as provided below
(the "Exercise Price"). Capitalized terms used and not otherwise defined in this
Warrant shall have the meanings respectively assigned to them in the Purchase
Agreement.
This Warrant is subject to the following provisions, terms and
conditions:
1. Term of Warrant. The term of this Warrant commences as of the
date hereof and expires at 5:00 P.M., Minneapolis time, on September 24, 2009
(the "Expiration Date").
2. Exercise. This Warrant may be exercised by the record holder of
this Warrant at any time on or after the date hereof, and thereafter during the
term of this Warrant, in whole or in part from time to time, by (a) providing
written notice of exercise to the Company on or before the intended date of
exercise, (b) surrendering the Warrant (properly endorsed if required) at the
principal office of the Company, and (c) paying an amount equal to the Exercise
Price multiplied by the number of shares of Common Stock being purchased. At the
option of the Holder, payment of the Exercise Price may be made either by (x)
check payable to the order of the Company, (y) surrender of stock certificates
then held representing, or deduction from the number of shares issuable upon
exercise of this Warrant, that number of shares which has an aggregate current
market price on the date of exercise equal to the aggregate Exercise Price for
all shares to be purchased pursuant to this Warrant, or (z) any combination of
the foregoing methods. Upon the proper exercise of this Warrant, the Company
will issue and deliver (or cause to be delivered) to the Holder, stock
certificates for that number of shares of Common Stock purchased. In the event
of a partial exercise of this Warrant, the Company will issue and deliver to the
Holder a new Warrant at the same time such stock certificates are delivered,
which new Warrant will entitle the Holder to purchase the balance of the shares
not purchased in that partial exercise and will otherwise be upon the same terms
and provisions as this Warrant. Notwithstanding anything to the contrary in this
Section 2, with respect to partial exercises of this Warrant, the Holder agrees
that such partial exercises will not be for less than 100,000 shares of Common
Stock; provided that such requirement will be adjusted in accordance with any
adjustments to the Exercise Quantity under this Warrant.
3. Issuance of Shares. The Company agrees that the shares of Common
Stock purchased hereby will and are deemed to be issued to the Holder as of the
close of business on the date on which this Warrant is surrendered and payment
is made for such shares as provided in Section 2 above. Certificates for the
shares of stock so purchased will be delivered to the Holder within a reasonable
time, not exceeding thirty (30) days after the rights represented by this
Warrant have been exercised, and, unless this Warrant has expired, a new Warrant
representing the number of shares, if any, with respect to which this Warrant
has not been exercised will also be delivered to the Holder within such time.
4. Covenants of Company.
(a) The Company covenants and agrees that all shares which may be
issued upon the exercise of this Warrant will, upon such issuance, be duly
authorized and issued, fully paid, nonassessable and free from all taxes, liens
and charges with respect to the issue thereof, and without limiting the
generality of the foregoing, the Company covenants and agrees that it will from
time to time take all such action as may be required to assure that the par
value per share (if any) of the Common Stock is at all times equal to or less
than the then effective purchase price per share of the Common Stock issuable
pursuant to this Warrant. The Company further covenants and agrees that during
the period within which the rights represented by this Warrant may be exercised,
the Company will at all times have authorized, and reserved for the purpose of
issue or transfer upon exercise of the subscription rights evidenced by this
Warrant, a sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant.
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(b) The Company covenants and agrees that it will not declare, make
or pay any cash dividend or other cash distribution, with respect to the Common
Stock except that cash dividends will be permitted so long as such dividends are
not prohibited by any contractual obligation of the Company.
5. Anti-dilution Adjustments. The above provisions are subject to
the following:
(a) Upon any adjustment of the Exercise Price as provided in this
Section 5, the Exercise Quantity shall be adjusted such that at the Exercise
Price resulting from such adjustment, the new Exercise Quantity shall be
obtained by multiplying the former Exercise Quantity by a fraction (i) the
numerator of which shall be the Exercise Price in effect immediately prior to
such adjustment and (ii) the denominator of which shall be the Exercise Price
resulting from such adjustment. Further, the Company will give written notice of
each adjustment, by first class mail, postage prepaid, addressed to the Holder
at the address shown on the books of the Company, which notice will state the
Exercise Price and Exercise Quantity resulting from such adjustment and will set
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.
(b) In case the Company at any time hereafter subdivides or combines
the outstanding shares of Common Stock or declares a dividend payable in shares
of Common Stock, the Exercise Price in effect immediately prior to the
subdivision, combination or record date for such dividend payable in Common
Stock will be proportionately increased (in the case of a combination) or
decreased (in the case of a subdivision or dividend payable in Common Stock),
and the Exercise Quantity will be adjusted in accordance with Section 5(a)
above.
(c) If the Company shall issue (or, pursuant to Section 5(c)(iii)
below, shall be deemed to have issued) any Common Stock other than Excluded
Stock (as defined below) for a consideration per share less than the Market
Value (as defined in Section 9(d) below) on the date the Company fixes the
purchase price for such Common Stock (excluding stock dividends, subdivisions,
split-ups, combinations or recapitalizations which are addressed by Sections
5(b) or (e)), the Exercise Price in effect immediately after each such issuance
shall be reduced, concurrently with such issuance, to a price (calculated to the
nearest cent) determined by multiplying the applicable Exercise Price
immediately prior to such issuance by a fraction, the numerator of which shall
be the sum of the number of shares of Common Stock and Common Stock Equivalents
(as defined in Section 6 below) outstanding immediately prior to such issuance
plus the number of shares of Common Stock which the aggregate consideration
received by the Company for such issuance would purchase at such Market Value
per share, and the denominator of which shall be the number of shares of Common
Stock and Common Stock Equivalents outstanding immediately after such issuance.
For the purposes of any adjustment of the Exercise Price pursuant to
this Section 5(c), the following provisions shall be applicable:
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(i) In the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor after
deducting any discounts or commissions paid or incurred by the Company in
connection with the issuance and sale thereof.
(ii) In the case of the issuance of Common Stock for a consideration
in whole or in part other than cash, the consideration other than cash
shall be deemed to be the fair value thereof as determined in good faith
by the Board of Directors.
(iii) In the case of the issuance of (A) options to purchase or
rights to subscribe for Common Stock, (B) securities, by their terms,
convertible into or exchangeable for Common Stock, (C) options to purchase
or rights to subscribe for securities, by their terms, convertible into or
exchangeable for Common Stock, or (D) stock appreciation rights, phantom
stock or similar stock based compensation (the "Units") issuable to Xxxx
Xxxxxx or Xxxxx Xxxxxxx pursuant to paragraph 3 of those certain letter
agreements dated September 23, 1999 or any definitive agreement related
thereto:
(1) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options to purchase or rights to
subscribe for Common Stock shall be deemed to have been issued at
the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in
subdivisions (i) and (ii) above of this Section 5(c)), if any,
received by the Company upon the issuance of such options or rights
plus the minimum purchase price provided in such options or rights
for the Common Stock covered thereby;
(2) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange for any such
convertible or exchangeable securities or the Units, or upon the
exercise of options to purchase or rights to subscribe for such
convertible or exchangeable securities and subsequent conversion or
exchange thereof, shall be deemed to have been issued at the time
such securities or Units were issued or such options or rights were
issued and for a consideration equal to the consideration received
by the Company for any such securities and related options or rights
(excluding any cash received on account of accrued interest or
accrued dividends), plus the additional minimum consideration, if
any, to be received by the Company upon the conversion or exchange
of such securities or the exercise of any related options or rights
(the consideration in each case to be determined in the manner
provided in subdivisions (i) and (ii) above of this Section 5(c));
(3) on any change in the number of shares of Common Stock
deliverable upon exercise of any such options or rights or
conversion of or exchange for such convertible or exchangeable
securities, or on any change in the minimum purchase
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price of such options, rights or securities, other than a change
resulting from the antidilution provisions of such options, rights
or securities, the Exercise Price shall forthwith be readjusted to
such Exercise Price as would have been obtained had the adjustment
made upon (a) the issuance of such options, rights or securities not
exercised, converted or exchanged prior to such change or (b) the
options or rights related to such securities not converted or
exchanged prior to such change, as the case may be, been made upon
the basis of such change;
(4) other than any expiration or termination of the Units, on
the expiration of any such options or rights, the termination of any
such rights to convert or exchange or the expiration of any options
or rights related to such convertible or exchangeable securities,
the Exercise Price shall forthwith be readjusted to such Exercise
Price as would have been obtained had the adjustment made upon the
issuance of such options, rights, convertible or exchangeable
securities or options or rights related to such convertible or
exchangeable securities, as the case may be, been made upon the
basis of the issuance of only the number of shares of Common Stock
actually issued upon the exercise of such options or rights, upon
the conversion or exchange of such convertible or exchangeable
securities or upon the exercise of the options or rights related to
such convertible or exchangeable securities, as the case may be; and
(5) for purposes of the issuance of the Units under Section
5(c)(iii), the Market Value on the date of issuance shall be deemed
to be $3.3125 per share and the consideration received, and to be
received upon any conversion or exchange of the Units, by the
Company shall be deemed to be zero.
(iv) "Excluded Stock" shall mean (A) all shares of Common Stock
issued upon the exercise or conversion of currently issued and outstanding
Common Stock Equivalents in accordance with their terms, or (B) all shares
of Common Stock or Common Stock Equivalents issued pursuant to the
Company's 1995 Stock Option Plan or 1996 Director Stock Option Plan at a
price not less than the Fair Market Value (as such term is defined in such
plans as in effect on the date hereof) at the date of grant; provided,
however, the Units shall not be Excluded Stock.
(d) No fractional shares of Common Stock are to be issued upon the
exercise of the Warrant, but the Company shall pay a cash adjustment in respect
of any fraction of a share which would otherwise be issuable in an amount equal
to the same fraction of the market price per share of Common Stock on the day of
exercise as determined in good faith by the Company.
(e) In the event that any capital reorganization or reclassification
of the capital stock of the Company, or the consolidation or merger of the
Company with another corporation, or the sale of all or substantially all of the
Company's assets to another corporation is effected in such a way that the
Company's common stockholders will be entitled to receive stock, securities
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or assets with respect to or in exchange for their Common Stock (an "Exchange
Event"), then, from and after such Exchange Event, the Warrant will be
exercisable, upon the terms and conditions specified in this Warrant, for an
amount of such stock, securities or assets to which a holder of the number of
shares of Common Stock purchaseable upon exercise of the Warrant at the time of
such Exchange Event would have been entitled to receive upon such Exchange
Event. Appropriate provisions will be made with respect to the rights and
interests of the Holder to ensure that the provisions of this Warrant (including
without limitation the provisions to adjust the Exercise Price and the number of
shares purchasable upon the exercise of this Warrant) will be applicable, as
nearly as may be, in relation to any such stock, securities or assets
deliverable upon the exercise of this Warrant after an Exchange Event. The
Company will not effect any Exchange Event unless, prior to the consummation
thereof, the successor or purchasing corporation (if other than the Company)
with respect to such Exchange Event, assumes by written instrument executed and
delivered to the Holder at the address of such Holder as shown on the books of
the Company, the obligation to deliver to such Holder such stock, securities or
assets as, in accordance with the foregoing provisions, such Holder may be
entitled to purchase.
6. Preemptive Rights. In the event that at any time after the date
hereof the Company proposes to issue Common Stock or Common Stock Equivalents
(as defined below), the Company will give written notice to the Holders of this
Warrant and any Common Stock issued upon exercise of this Warrant, describing
such proposal at least thirty (30) days in advance of such issuance. Each such
Holder will then have the right, exercisable by written notice given to the
Company no later than twenty (20) days after receipt of the Company's notice, to
purchase its pro rata share (assuming the conversion of all Common Stock
Equivalents to Common Stock except for options issued pursuant to the Company's
1995 Stock Option Plan or 1996 Director Stock Option Plan) of the Common Stock
or Common Stock Equivalents proposed to be issued by the Company on the same
price and terms as are proposed by the Company. "Common Stock Equivalents" means
all options, warrants (including this Warrant), convertible securities,
securities, and other rights to acquire from the Company shares of Common Stock
(without regard to whether such options, warrants, convertible securities,
securities and other rights are then exchangeable, exercisable or convertible in
full, in part or at all). The rights granted under this Section 6 do not apply
to issuances of Common Stock or Common Stock Equivalents (a) in a public
offering pursuant to a registration statement under the Securities Act, or (b)
pursuant to the Company's 1995 Stock Option Plan or 1996 Director Stock Option
Plan in an aggregate amount not exceeding 1,125,250 shares, or (c) the exercise
or conversion of currently issued and outstanding Common Stock Equivalents in
accordance with their terms.
7. No Voting Rights. This Warrant, as such, does not entitle the
Holder to any voting rights or other rights as a stockholder of the Company.
8. Transfer of Warrant or Shares. The Holder acknowledges that it
has obtained this Warrant for investment and not with the intention of making
any resale or distribution. The Holder further acknowledges (a) that neither
this Warrant nor any of the shares of Common
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Stock obtainable under it have been registered under the Securities Act of 1933
(the "Securities Act") or any state securities statutes, and (b) that neither
this Warrant nor any shares of Common Stock obtainable under it may be
transferred without such registration or an opinion of legal counsel reasonably
acceptable to the Company that such transfer may be made without registration.
Subject to the foregoing, the Company agrees that this Warrant is transferable
in whole or in part.
9. Put Rights of the Holders.
(a) Put of the Warrant Stock. At any time and from time to time
after the earlier to occur of (i) the fifth anniversary of the date hereof, (ii)
any Sale Transaction (as defined below), (iii) any Event of Default under the
Purchase Agreement other than an Event of Default under Section 9.01(c) of the
Purchase Agreement, or (iv) any Event of Default under Section 9.01(c) of the
Purchase Agreement that results in the acceleration of the indebtedness
evidenced by the Note, any Holder of the Warrant or any Holder of shares of
Common Stock issued pursuant to this Warrant (the "Warrant Stock"), will have
the right to sell all or any portion of its Warrant or Warrant Stock to the
Company, and the Company will be obligated to purchase such Warrant or Warrant
Stock, subject to the following terms and conditions (the "Put Right"):
(i) The Holder will give the Company thirty (30) days written
notice, in the form of Exhibit A (the "Notice of Put"), of the Holder's
intention to exercise the Put Right. The date of the Notice of Put, or
such later date as specified in the Notice of Put, is the "Put Date." The
Company agrees to give all Holders of the Warrant or Warrant Stock not
less than sixty (60) days prior written notice of any proposed Sale
Transaction.
(ii) Within twenty (20) business days after the Put Date, the
Company will give all other Holders of the Warrant or Warrant Stock, if
any, written notice of the Company's receipt of a Notice of Put. This
notice must specify (A) the amount of the Warrant or Warrant Stock covered
by the Notice of Put, (B) the Put Repurchase Date (as defined below), (C)
the Put Exercise Price (as defined below), and (D) the location to which
the Warrant or Warrant Stock must be presented and surrendered for
repurchase. Such other Holders of Warrant or Warrant Stock will then have
the right, to be exercised by providing the Company a written Notice of
Put within five (5) business days after receipt of the Company's notice,
to require the Company to repurchase all or any portion of such Holders'
Warrant or Warrant Stock on the Put Repurchase Date and on the same terms
as the Holder who first gave the Notice of Put under Section 9(a)(i).
(iii) The Company will fix a date for the repurchase of the Warrant
Stock, which date must be between ninety (90) and one hundred (100) days
after the Put Date (the "Put Repurchase Date"), or such shorter period as
may be reasonably practicable under the circumstances.
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(iv) On the Put Repurchase Date, the Company will deliver payment,
in same-day funds, to each Holder issuing a Notice of Put in an amount
equal to the aggregate Put Exercise Price (as defined below) applicable to
such Holder's Warrant or Warrant Stock to be repurchased.
(b) Remaining Warrants and Warrant Stock. In the event of a partial
exercise of a Put Right, the remaining Warrants and Warrant Stock will continue
to enjoy the same benefits provided herein as they enjoyed immediately preceding
such exercise of the Put Right.
(c) Survival. The obligations of the Company under this Section 9
will survive the exercise of the Warrant. The Put Right will terminate with
respect to the Warrant and any Warrant Stock upon the Expiration Date. In
addition, upon the transfer of any Warrant Stock by Bayview, other than
transfers to any general or limited partner or other affiliate of Bayview, the
Put Right will terminate with respect to such transferred Warrant Stock.
(d) Definitions. The following terms have the meanings indicated
below for purposes of Sections 9 and 10:
(i) "Sale Transaction" means a single transaction or series of
transactions resulting in (A) a sale, exchange, issuance, or other
disposition of fifty percent (50%) or more of the ownership of the Company
by or through the Company and/or its shareholders (other than a
recapitalization of the Company resulting in no change in ownership), (B)
any sale, transfer, or other disposition by the Company of assets with a
fair market value equal to or greater than fifty percent (50%) of the
aggregate fair market value of all assets of the Company immediately prior
to such sale, transfer, or other disposition (other than sales of
inventory in the ordinary course of business); provided that, for purposes
of this definition, such transaction or series of transactions include,
without limitation, a merger, consolidation, joint venture, tender offer,
exchange offer, equity investment in the Company, or other similar
transaction.
(ii) "Put Exercise Price" means (A) the Fair Value of the Common
Stock determined as of the Put Date, divided by (B) the number of shares
of Common Stock outstanding as of the Put Date, provided, however, that
with respect to the Warrant, prior to its exercise, the Put Exercise Price
will be reduced by the Exercise Price in effect on the Put Date.
(iii) "Fair Value" means the fair value of the Common Stock as
mutually agreed to by the Holder and the Company, or, if they do not agree
to such value within twenty (20) days of the Put Date, the greater of (A)
the Market Value, or (B) the Adjusted EBITDA Value.
(iv) "Market Value" means the fair value of the Common Stock
determined by an independent professional appraiser mutually selected by
the Holder and the Company. In the event that the Holder and the Company
are unable to mutually select an
8
appraiser within twenty (20) days of the Put Date, then the Holder and the
Company will each select an independent professional appraiser who will
jointly select a third independent professional appraiser to conduct the
appraisal. Each such appraiser must be selected within thirty (30) days of
the Put Date, and, if either the Holder or the Company fails to select an
appraiser within such time period, then the appraiser selected by the
other party will determine the Market Value. In no event will any
appraiser apply any discounts for illiquidity, lack of control or other
similar factors in determining the Market Value. All costs associated with
the appraisal will be borne equally by the Company and the Holder.
Notwithstanding the foregoing, if the Company's Common Stock is listed and
trading on a national securities exchange or on the Nasdaq National Market
System, Market Value means, on a per share basis, the average closing sale
price per share of the Common Stock for the twenty (20) trading days
immediately preceding any date of determination.
(v) "Adjusted EBITDA Value" means the sum of (A) the EBITDA of the
Company for the twelve months preceding the Put Date times 6.0, plus (B)
the cash and cash equivalents of the Company as of the Put Date, minus (C)
the indebtedness for borrowed money of the Company as of the Put Date, all
as determined in accordance with GAAP.
(vi) "EBITDA" means, for any specified period, the net income of the
Company plus (A) deductions for interest expense, income taxes,
depreciation and amortization, minus (B) extraordinary income and gains
(losses) on sales of assets, all as determined in accordance with GAAP.
10. Call Rights of the Company.
(a) Call Right. At any time and from time to time after the sixth
anniversary of the date hereof, the Company will have the right, exercisable
upon not less than thirty (30) days prior written notice to the Holder, to
repurchase the Warrant or the Warrant Stock for cash at a per share purchase
price equal to the Put Exercise Price as determined under Section 9 above (the
"Call Right"). The Call Right will terminate at the same time and to the extent
of any termination of the Put Right under Section 9(c) above.
(b) Sale Transaction Subsequent to Call. In the event that a Sale
Transaction occurs, or an agreement or plan to effect a Sale Transaction is
entered into, within six (6) months of the date on which the Warrant or Warrant
Stock are repurchased pursuant to the Call Right, the Company agrees to pay the
Holder the excess, if any, of (i) the amount the Holder would have received if
the Holder's Warrant or Warrant Stock remained outstanding through the date of
the Sale Transaction less (ii) the amount actually received by the Holder in
connection with the purchase of the Holder's Warrant or Warrant Stock pursuant
to the Call Right.
11. Registration Rights.
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(a) Incidental Registration. Each time the Company proposes to file
any registration statement under the Securities Act in connection with the
proposed offer and sale of Common Stock (other than a registration statement on
a form that does not permit the inclusion of shares by its security holders) (a
"Registration Statement"), it will notify all the Holders of this Warrant or any
Warrant Stock at least thirty (30) days prior to such filing and will include in
the Registration Statement (to the extent permitted by applicable regulation),
all or any portion of the Warrant Stock to the extent requested by any Holder.
Notwithstanding the foregoing, the number of shares of Warrant Stock proposed to
be registered on behalf of the Holders will be reduced pro rata with any other
selling shareholder (other than the Company and CEX Holdings, Inc.) upon the
good faith request of the managing underwriter of such offering. If the
Registration Statement has not become effective within six (6) months following
the date notice is given to the Holders, the Company must again notify the
Holders in the manner provided above.
(b) Demand Registration. The Holders of fifty percent (50%) or more
of the Warrant Stock purchased or purchasable upon exercise of the Warrant
(excluding any Warrant Stock that has previously been sold pursuant to a
Registration Statement) may request the registration of the Warrant Stock. Upon
receipt of such request, the Company will mail (by certified or registered mail,
return receipt requested) to each Holder of this Warrant or any Warrant Stock,
at their last known post office address, written notice of such request, and
each Holder will have twenty (20) days from the date of deposit of such notice
in the U.S. Mail to notify the Company in writing whether such Holder wishes to
include their Warrant Stock in such registration. The Company will promptly use
its best efforts to register under the Securities Act all Warrant Stock which
the Holders request in writing to be registered, and in a manner corresponding
to the methods of distribution described in such Holders' request. The Holders
may exercise the demand registration rights described in this Section 11(b) only
twice. In addition, the Holders may only exercise the demand registration rights
described in this Section 11(b) if the Company is entitled to use Form S-3 (or
any successor form to Form S-3) to register the Warrant Stock unless the Company
fails to meet any requirement for the use of Form S-3 as a result of any act or
omission that is reasonably within the control of the Company.
(c) Expenses. All expenses of any registrations referred to in this
Section 11, except the fees of legal counsel to such Holders and any
underwriting commissions or discounts, and transfer taxes applicable to the
Warrant Stock, will be borne by the Company.
(d) Miscellaneous. The Company will furnish to each Holder for whom
a Registration Statement has been filed a reasonable number of copies of any
prospectus included in such filing and will amend or supplement the same as
required during the period of required use thereof. The Company will maintain
the effectiveness of any Registration Statement filed by the Company, whether or
not at the request of the Holders, until all the Warrant Stock registered under
such Registration Statement are sold pursuant thereto or six (6) calendar
months, whichever is shorter. In the case of the filing of any Registration
Statement, and to the extent
10
permissible under the Act and controlling precedent thereunder, the Company and
the Holders of Warrant Stock covered by such Registration Statement will provide
cross indemnification agreements to each other in customary scope covering the
accuracy and completeness of the information furnished by each. Holders of
Warrant Stock being so registered agree to cooperate with the Company in the
preparation and filing of any such Registration Statement, and in the furnishing
of information concerning the Holder for inclusion therein, or in any efforts by
the Company to establish that the proposed sale is exempt under the Act as to
any proposed distribution.
12. Governing Law. This Warrant will be construed and enforced in
accordance with the substantive laws of the State of Minnesota without giving
effect to its conflict of laws principles.
13. Consent to Jurisdiction; Jury Waiver. AT THE OPTION OF THE
HOLDER, THIS WARRANT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE
COURT SITTING IN HENNEPIN COUNTY; AND THE COMPANY CONSENTS TO THE JURISDICTION
AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS
NOT CONVENIENT. IN THE EVENT THE COMPANY COMMENCES ANY ACTION IN ANOTHER
JURISDICTION OR VENUE ARISING OUT OF OR RELATING TO THIS WARRANT, THE HOLDER, AT
ITS OPTION, IS ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS
AND VENUES DESCRIBED ABOVE, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER
APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE. THE COMPANY
HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION BASED ON OR PERTAINING
TO THIS WARRANT.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer and dated as of the date first above written.
UNITED SHIPPING & TECHNOLOGY, INC.
By: ___________________________________
Name:
Title:
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Exhibit A
NOTICE OF PUT
United Shipping & Technology, Inc.
Attention: President
0000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
This Notice of Put is given pursuant to Section 9(a) of the Warrant
dated as of ________ ___, 1999 (the "Warrant") issued to Bayview Capital
Partners LP ("Bayview"). Unless otherwise defined herein, terms used herein
shall have the meanings assigned to them in the Warrant.
The undersigned Holder of the Warrant or Warrant Stock hereby elects
to exercise its right to put its Warrant to the extent of __________ shares of
the current Exercise Quantity and/or to the extent of _________ shares of
Warrant Stock as set forth below:
1. The total Put Exercise Price applicable to all of
Holder's Warrant or Warrant Stock is $______________,
which has been calculated as set forth on the attached
schedule.
2. The amount to be paid to the Holder for the Warrant and
Warrant Stock covered by this Notice of Put is
$__________ (the "Put Payment").
3. The Warrant and Warrant Stock covered by this Notice of
Put is enclosed herewith.
4. The Put Date with respect to the Warrant and Warrant
Stock covered by this Notice of Put is ________________.
Please deposit the amount of the Put Payment to the account of the
Holder at _________________________, Account No. ______________ by no sooner
than ninety (90) and no later than one hundred (100) calendar days from the Put
Date.
To the extent this put is exercised with respect to less than all of
the Warrant, the undersigned Holder requests that a new Warrant of like tenor
(exercisable for the balance of the shares of Common Stock underlying this
Warrant) be issued and delivered to the undersigned Holder at the address on the
warrant register of the Company.
Dated:___________________ __________________________________________
(Name of Registered Holder - Please Print)
By__________________________________
(Signature of Registered Holder or
of Duly Authorized Signatory)
Title________________________________
