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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION
OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
WARRANT TO PURCHASE COMMON STOCK
OF
ELITE LOGISTICS, INC.
October 13, 2000
No. W-__
This certifies that Koyage Leverage Partners, L.P. (the "Holder") is
entitled, subject to the terms and conditions of this Warrant, to purchase from
Elite Logistics, Inc., an Idaho corporation (the "Company"), all or any part of
an aggregate of 222,222.5 shares of the Company's authorized and unissued Common
Stock, par value $0.01 (the "Warrant Stock"), at the Warrant Price (as defined
herein), upon surrender of this Warrant at the principal offices of the Company,
together with a duly executed subscription form in the form attached hereto as
Exhibit 1 and simultaneous payment of the Warrant Price for each share of
Warrant Stock so purchased in lawful money of the United States, unless
exercised in accordance with the provisions of Section 2.6 of this Warrant. The
Holder may exercise the Warrant at any time after the date of this Warrant and
prior to the third anniversary of the date hereof (the "Expiration Date").
This Warrant is issued pursuant to that certain Common Stock Purchase
Agreement dated as of October 13, 2000 (the "Purchase Agreement"), by and among
the Company, the Holder and certain of the other investors listed on the
Schedule of Investors attached to the Purchase Agreement (the "Investors").
1. Definitions. The following definitions shall apply for purposes of
this Warrant:
1.1 "Acquisition" means any consolidation, merger or
reorganization of the Company with or into any other corporation or other entity
or person, or any other corporate reorganization, in which the stockholders of
the Company immediately prior to such consolidation, merger or reorganization,
own less than fifty percent of the Company's voting power immediately after such
consolidation, merger or reorganization, or any transaction or series of related
transactions to which the Company is a party in which in excess of fifty percent
of the
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Company's voting power is transferred, excluding any consolidation, merger or
reorganization effected exclusively to change the domicile of the Company.
1.2 "Asset Transfer" means a sale, lease or other disposition
of all or substantially all of the assets of the Company.
1.3 "Company" means the "Company" as defined above and
includes any corporation or other entity that succeeds to or assumes the
obligations of the Company under this Warrant.
1.4 "Fair Market Value" of a share of Warrant Stock means (i)
if the Common Stock is traded on a securities exchange, the average of the
closing price each day over the thirty consecutive day period ending three days
before the day the fair market value of the securities is being determined, (ii)
if the Common Stock is actively traded over-the counter, the average of the
closing bid and asked prices quoted on the NASDAQ system (or similar system)
each day over the thirty consecutive day period ending three days before the day
the fair market value of the securities is being determined, or (iii) if at any
time the Common Stock is not listed on any securities exchange or quoted in the
NASDAQ System or the over-the-counter market, then as determined by the
Company's Board of Directors in good faith.
1.5 "Holder" means the "Holder" as defined above and includes
any transferee who shall at the time be the registered holder of this Warrant.
1.6 "Warrant" means this Warrant and any warrant(s) delivered
in substitution or exchange therefor, as provided herein.
1.7 "Warrant Price" means $2.70 per share of Warrant Stock.
The Warrant Price is subject to adjustment as provided herein.
1.8 "Warrant Stock" means the Common Stock of the Company. The
number and character of shares of Warrant Stock are subject to adjustment as
provided herein and the term "Warrant Stock" shall include stock and other
securities and property at any time receivable or issuable upon exercise of this
Warrant in accordance with its terms.
2. Exercise.
2.1 Method of Exercise. Subject to the terms and conditions of
this Warrant, the Holder may exercise the purchase rights represented by this
Warrant in whole or in part, at any time or from time to time, on or after the
date hereof and before the Expiration Date, by surrendering this Warrant at the
principal offices of the Company, with the subscription form attached hereto
duly executed by the Holder, and payment of an amount equal to the product
obtained by multiplying (i) the number of shares of Warrant Stock so purchased
by (ii) the Warrant Price.
2.2 Form of Payment. Except as provided in Section 2.6,
payment may be made by (i) a check payable to the Company's order, (ii) wire
transfer of funds to the Company,
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(iii) cancellation of indebtedness of the Company to the Holder, or (iv) any
combination of the foregoing.
2.3 Partial Exercise. Upon a partial exercise of this Warrant,
this Warrant shall be surrendered by the Holder and replaced with a new Warrant
or Warrants of like tenor for the balance of the shares of Warrant Stock
purchasable under the Warrant surrendered upon such purchase. The Warrant or
Warrants will be delivered to the Holder thereof within a reasonable time.
2.4 No Fractional Shares. No fractional shares may be issued
upon any exercise of this Warrant, and any fractions shall be rounded down to
the nearest whole number of shares. If upon any exercise of this Warrant a
fraction of a share results, the Company will pay an amount equal to the such
fraction multiplied by the Fair Market Value of a share of Warrant Stock.
2.5 Automatic Exercise. Anything herein to the contrary
notwithstanding, this Warrant shall be deemed to be automatically exercised,
with no notice required by the Holder and, in lieu of payment as provided for in
Section 2.2 of this Warrant, on a Net Issue Exercise basis as described in
Section 2.6, on the earlier of date on which (i) the value of the cash, stock or
other property that the Holder would receive for each share of Warrant Stock if
the Holder shall have exercised this Warrant immediately prior to the closing of
an Acquisition or an Asset Transfer exceeds the Warrant Price, and (ii) closing
price of the Warrant Stock, as listed on any securities exchange or as quoted in
the NASDAQ System, each day over a thirty consecutive day period is more than
$10.00 per share of Common Stock. For purposes of this Section 2.5, the value of
stock or other property described in clause (i) of the previous sentence will be
deemed its fair market value as determined in good faith by the Board of
Directors of the Company.
2.6 Net Exercise Election. The Holder may elect to convert all
or a portion of this Warrant, without the payment by the Holder of any
additional consideration, by the surrender of this Warrant or such portion to
the Company, with the net exercise election selected in the subscription form
attached hereto duly executed by the Holder, into up to the number of shares of
Warrant Stock that is obtained under the following formula:
X = Y (A-B)
-------
A
where X = the number of shares of Warrant Stock to be issued to the
Holder pursuant to this Section 2.6.
Y = the number of shares of Warrant Stock purchasable under
this Warrant, or if only a portion of the Warrant is being
exercised, the number of shares of Warrant Stock represented
by the portion of the Warrant being exercised.
A = the Fair Market Value of one share of Warrant Stock as at
the time the net exercise election is made pursuant to this
Section 2.6.
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B = the Warrant Price.
3. Issuance of Stock. This Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Warrant Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date; provided, that in the event this Warrant is automatically exercised
in connection with an Acquisition or Asset Transfer pursuant to Section 2.5,
then the shares of Warrant Stock purchased pursuant to this Warrant shall be and
are deemed to be issued to the Holder as the record owner of such shares
immediately prior to such Acquisition or Asset Transfer. As soon as practicable,
but in any event no later than three days after such date, the Company shall
issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of whole shares of Warrant Stock
issuable upon such exercise. The Company covenants and agrees that all shares of
Warrant Stock that are issued upon the exercise of the rights represented by
this Warrant will, upon issuance, be duly authorized, validly issued, fully paid
and nonassessable and free from all preemptive rights of any stockholder, free
of all taxes, liens and charges with respect to the issue thereof and free and
clear of any restrictions on transfer (other than under the Act and state
securities laws).
4. Adjustment Provisions. The number and character of shares of Warrant
Stock issuable upon exercise of this Warrant (or any shares of stock or other
securities or property at the time receivable or issuable upon exercise of this
Warrant) and the Warrant Price therefor, are subject to adjustment upon the
occurrence of the following events between the date this Warrant is issued and
the date it is exercised:
4.1 Adjustment for Stock Splits, Stock Dividends,
Recapitalizations, etc. The Warrant Price of this Warrant and the number of
shares of Warrant Stock issuable upon exercise of this Warrant (or any shares of
stock or other securities at the time issuable upon exercise of this Warrant)
shall each be appropriately and proportionally adjusted to reflect any stock
dividend, stock split, reverse stock split, combination of shares,
reclassification, recapitalization or other similar event affecting the number
of outstanding shares of Warrant Stock (or such other stock or securities).
4.2 Adjustment for Other Dividends and Distributions. In case
the Company shall make or issue, or shall fix a record date for the
determination of eligible holders entitled to receive, a dividend or other
distribution payable with respect to the Warrant Stock that is payable in (a)
securities of the Company (other than issuances with respect to which adjustment
is made under Section 4.1), or (b) assets (other than cash dividends paid or
payable solely out of retained earnings), then, and in each such case, the
Holder, upon exercise of this Warrant at any time after the consummation,
effective date or record date of such event, shall receive, in addition to the
shares of Warrant Stock issuable upon such exercise prior to such date, the
securities or such other assets of the Company to which the Holder would have
been entitled upon such date if the Holder had exercised this Warrant
immediately prior thereto (all subject to further adjustment as provided in this
Warrant).
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4.3 Adjustment for Reorganization, Consolidation, Merger. In
case of any reorganization of the Company (or of any other corporation or
entity, the stock or other securities of which are at the time receivable on the
exercise of this Warrant), after the date of this Warrant, or in case, after
such date, the Company (or any such corporation or entity) shall consolidate
with or merge into another corporation or entity or convey all or substantially
all of its assets to another corporation or entity, then, and in each such case,
the Holder, upon the exercise of this Warrant (as provided in Section 2), at any
time after the consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise of this Warrant prior to
such consummation, the stock or other securities or property to which the Holder
would have been entitled upon the consummation of such reorganization,
consolidation, merger or conveyance if the Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in this
Warrant, and the successor or purchasing corporation or entity in such
reorganization, consolidation, merger or conveyance (if other than the Company)
shall duly execute and deliver to the Holder a supplement hereto acknowledging
such corporation's or entity's obligations under this Warrant; and in each such
case, the terms of this Warrant shall be applicable to the shares of stock or
other securities or property receivable upon the exercise of this Warrant after
the consummation of such reorganization, consolidation, merger or conveyance.
4.4 Notice of Adjustments. The Company shall promptly give
written notice of each adjustment or readjustment of the Warrant Price or the
number of shares of Warrant Stock or other securities issuable upon exercise of
this Warrant. The notice shall describe the adjustment or readjustment and show
in reasonable detail the facts on which the adjustment or readjustment is based.
4.5 No Change Necessary. The form of this Warrant need not be
changed because of any adjustment in the Warrant Price or in the number of
shares of Warrant Stock issuable upon its exercise.
5. No Rights or Liabilities as Stockholder. This Warrant does not by
itself entitle the Holder to any voting rights or other rights as a stockholder
of the Company. In the absence of affirmative action by the Holder to purchase
Warrant Stock by exercise of this Warrant, no provisions of this Warrant, and no
enumeration herein of the rights or privileges of the Holder, shall cause the
Holder to be a stockholder of the Company for any purpose.
6. Attorneys' Fees. In the event any party is required to engage the
services of any attorneys for the purpose of enforcing this Warrant, or any
provision thereof, the prevailing party shall be entitled to recover its
reasonable expenses and costs in enforcing this Warrant, including attorneys'
fees.
7. Transfer. This Warrant may be transferred or assigned by the Holder
hereof in whole or in part, if, on the Company's reasonable request, the Holder
provides an opinion of counsel reasonably satisfactory to the Company that such
transfer does not require registration under the Act and the applicable state
securities law, except that this Warrant may be transferred by a Holder which is
a partnership or limited liability company to a partner, former partner, member,
former member or other affiliate of such partnership or limited liability
company, as the
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case may be, if (a) the transferee agrees in writing to be subject to the terms
of this Warrant; and (b) the Holder delivers notice of such transfer to the
Company. The rights and obligations of the Company and the Holder under this
Warrant shall be binding upon and benefit their respective permitted successors,
assigns, heirs, administrators and transferees.
8. Loss or Mutilation. Upon receipt by the Company of evidence
reasonably satisfactory to it of the ownership and the loss, theft, destruction
or mutilation of this Warrant, and of indemnity reasonably satisfactory to it,
and (in the case of mutilation) upon surrender and cancellation of this Warrant,
the Company will execute and deliver in lieu thereof a new Warrant of like
tenor.
9. Reservation of Warrant Stock. If at any time the number of
authorized but unissued shares of the Warrant Stock shall not be sufficient to
effect the exercise of this Warrant, the Company will take all such corporate
action as may be necessary to increase its authorized but unissued shares of
Warrant Stock to such number of shares of Warrant Stock as shall be sufficient
for such purpose.
10. Governing Law. This Warrant shall be governed by and construed and
interpreted in accordance with the laws of the State of Washington, without
giving effect to its conflicts of law principles. All disputes between the
parties hereto, whether sounding in contract, tort, equity or otherwise, shall
be resolved only by state and federal courts located in Spokane, Washington, and
the courts to which an appeal therefrom may be taken. All parties hereto waive
any objections to the location of the above referenced courts, including but not
limited to any objection based on lack of jurisdiction, improper venue or forum
non conveniens.
11. Headings. The headings and captions used in this Warrant are used
for convenience only and are not to be considered in construing or interpreting
this Warrant. All references in this Warrant to sections and exhibits shall,
unless otherwise provided, refer to sections hereof and exhibits attached
hereto, all of which exhibits are incorporated herein by this reference.
12. Notices. Any request, consent, notice or other communication
required or permitted under this Warrant shall be in writing and shall be deemed
duly given and received when delivered personally or transmitted by facsimile,
one business day after being deposited for next-day delivery with a nationally
recognized overnight delivery service, or three days after being deposited as
first class mail with the United States Postal Service, all charges or postage
prepaid, and properly addressed to the party to receive the same at the address
indicated for such party on the signature pages of the Purchase Agreement. Any
party may, at any time, by providing ten days' advance notice to the other party
hereto, designate any other address in substitution of the an address
established pursuant to the foregoing.
13. Amendment; Waiver. Any term of this Warrant may be amended, and the
observance of any term of this Warrant may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Holder.
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14. Severability. If one or more provisions of this Warrant are held to
be unenforceable under applicable law, such provision(s) shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
15. Terms Binding. By acceptance of this Warrant, the Holder accepts
and agrees to be bound by all the terms and conditions of this Warrant.
16. Valid Issuance; Taxes. All shares of Warrant Stock issued upon the
exercise of this Warrant shall be validly issued, fully paid and non-assessable,
and the Company shall pay all taxes and other governmental charges that may be
imposed in respect of the issue or delivery thereof. The Company shall not be
required to pay any tax or other charge imposed in connection with any transfer
involved in the issuance of any certificate for shares of Warrant Stock in any
name other than that of the Holder of this Warrant.
17. Registration Rights. All shares of Warrant Stock issuable upon
exercise of this Warrant shall be deemed to be "Registrable Securities" or such
other definition of securities entitled to registration rights pursuant to the
Investor Rights Agreement, dated as of the date hereof, among the Company and
Holder and the other Investors party thereto, and are entitled, subject to the
terms and conditions of that agreement, to all registration rights granted to
holders of Registrable Securities thereunder.
18. No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or bylaws, or through reorganization,
consolidation, merger, dissolution, issue or sale of securities, sale of assets
or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of the
Holder of this Warrant against impairment. Without limiting the generality of
the foregoing, the Company (a) will not increase the par value of any shares of
stock issuable upon the exercise of this Warrant above the amount payable
therefor upon such exercise, and (b) will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable shares of Warrant Stock upon exercise of this
Warrant.
[Signature appears on the following page.]
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IN WITNESS WHEREOF, the undersigned has executed this Warrant as of the
date first set forth above.
Elite Logistics, Inc.
By:
-------------------------------
Name:
Title:
[SIGNATURE PAGE TO WARRANT]
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Exhibit 1
FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: Elite Logistics, Inc.
(1) Check the box that applies and the provide the necessary
information:
[ ] The undersigned Holder hereby elects to purchase ___________ shares
of Common Stock of Elite Logistics, Inc. (the "Warrant Stock"), pursuant to the
terms of the attached Warrant, and tenders herewith payment of the purchase
price for such shares in full.
[ ] Net Exercise Election. The undersigned Holder elects to convert the
Warrant into shares of Warrant Stock by net exercise election pursuant to
Section 2.6 of the Warrant. This conversion is exercised with respect to
__________ shares of Common Stock of Elite Logistics, Inc. (the "Warrant Stock")
covered by the Warrant.
(2) In exercising the Warrant, the undersigned Holder hereby makes the
representations and warranties set forth on Appendix A hereto as of the date
hereof.
(3) Please issue a certificate or certificates representing such shares
of Warrant Stock in the name or names specified below:
------------------------------------- -------------------------------------
(Name) (Name)
------------------------------------- -------------------------------------
(Address) (Address)
------------------------------------- -------------------------------------
(City, State, Zip Code) (City, State, Zip Code)
------------------------------------- -------------------------------------
(Federal Tax Identification Number) (Federal Tax Identification Number)
------------------------------------- -------------------------------------
(Date) (Signature of Holder)
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Appendix A
INVESTMENT REPRESENTATION
The undersigned, _____________________ (the "Holder"), intends to acquire shares
of Common Stock (the "Common Stock") of Elite Logistics, Inc. (the "Company")
from the Company pursuant to the exercise or conversion of a Warrant to purchase
Common Stock held by the Holder. The Common Stock will be issued to the Holder
in a transaction not involving a public offering and pursuant to an exemption
from registration under the Securities Act of 1933, as amended (the "Securities
Act"), and applicable state securities laws. In connection with such purchase
and in order to comply with the exemptions from registration relied upon by the
Company, the Holder represents, warrants and agrees as follows:
(a) The Holder is acquiring the Common Stock for its own account, to hold for
investment, and the Holder shall not make any sale, transfer or other
disposition of the Common Stock in violation of the Securities Act or the
General Rules and Regulations promulgated thereunder by the Securities and
Exchange Commission or in violation of any applicable state securities law.
(b) The Holder has been advised that the Common Stock has not been registered
under the Securities Act or state securities laws on the ground that this
transaction is exempt from registration, and that reliance by the Company on
such exemptions is predicated in part on the Holder's representations set forth
herein.
(c) The Holder has been informed that under the Securities Act, the Common Stock
must be held indefinitely unless it is subsequently registered under the
Securities Act or unless an exemption from such registration (such as Rule 144)
is available with respect to any proposed transfer or disposition by the Holder
of the Common Stock. The Holder further agrees that the Company may refuse to
permit the Holder to sell, transfer or dispose of the Common Stock (except as
permitted under Rule 144) unless there is in effect a registration statement
under the Securities Act and any applicable state securities laws covering such
transfer, or unless the Holder furnishes an opinion of counsel reasonably
satisfactory to counsel for the Company to the effect that such registration is
not required.
The Holder also understands and agrees that there will be placed on the
certificate(s) for the Common Stock or any substitutions therefor, a legend
stating in substance:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws. These shares have been
acquired for investment purposes and may not be sold or otherwise
transferred in the absence of an effective registration statement for
these shares under the Securities Act and applicable state securities
laws or an opinion of counsel satisfactory to the Company that
registration is not required and that an applicable exemption is
available."
