EXHIBIT 10.13
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is made as of the date of
its acceptance set forth on the signature page below by and between
International Logistics Limited, a Delaware corporation (the "Company"), and
____________________, an individual subscribing for shares of the Company's
capital stock pursuant hereto (the "Management Investor"). Certain
capitalized terms that are used herein are defined in Section 6 of this
Agreement. Capitalized terms used but not defined herein shall have the
meanings ascribed to them under the Stockholders Agreement.
1. PURCHASE AND SALE OF SHARES AND GRANT OF WARRANTS.
(a) Upon the execution of this Agreement, (i) the Management
Investor will receive from the Company, and the Company will grant to the
Management Investor, warrants which, subject to the provisions hereof,
accord to the Management Investor the right to purchase (upon the vesting
of such warrants) up to _____ shares of Common Stock from the Company
(the "Warrants") and (ii) the Management Investor will purchase from the
Company, and the Company will sell and issue to the Management Investor,
the Shares that the Management Investor elects to purchase pursuant to an
exercise of, and subject to the terms of, his Warrants. The Management
Investor's election to purchase such Warrants shall constitute a
subscription for the Shares and shall be evidenced by the Management
Investor's completion of the "Management Investor Election" form attached
hereto. The Management Investor will deliver to the Company the full
purchase price for the Shares purchased hereunder by check, wire
transfer, bank draft or money order made payable to "International
Logistics Limited". The purchase price per share for Shares purchased
upon exercise of the Warrants is the Warrant Purchase Price. The
Management Investor agrees to enter into the Stockholders Agreement and
the Registration Rights Agreement concurrently with the execution of this
Agreement.
(b) In connection with the purchase and sale of the Shares
hereunder and the grant and receipt of the Warrants hereunder, the
Management Investor represents and warrants to the Company that:
(i) The Management Investor understands that (A) the
Securities have not been registered under the Securities Act, nor
qualified under the securities laws of any other jurisdiction, (B)
the Warrants are non-
transferable, (C) the Securities cannot be resold unless they
subsequently are registered under the Securities Act and qualified
under applicable state securities laws, unless the Company
determines that exemptions from such registration and qualification
requirements are available, and (D) except as otherwise set forth in
the Stockholders Agreement and the Registration Rights Agreement,
the Management Investor has no right to require such registration or
qualification;
(ii) The Securities to be acquired by the Management Investor
pursuant to this Agreement will be acquired for the Management
Investor's own account and not with a view to, or intention of,
distribution thereof in violation of the Securities Act, or any
applicable state securities laws, and the Securities will not be
disposed of in contravention of the Securities Act or any applicable
state securities laws;
(iii) The Management Investor has substantial knowledge and
experience in financial and business matters, has specific
experience making investment decisions of a similar nature, and is
capable, without the use of a financial advisor, of utilizing and
analyzing the information made available in connection with the
acquisition of the Securities and of evaluating the merits and risks
of an investment in the Securities. The Management Investor will
provide the Company, upon request, with such information concerning
any prior investment experience, business or professional experience
and other information as the Company may deem necessary to further
evaluate the foregoing representations;
(iv) The Management Investor has carefully reviewed and
understands the risks of, and other considerations relating to, an
investment in the Securities;
(v) The Management Investor understands that his investment in
the Securities is subject to significant economic risk, including
the relative illiquidity resulting from the fact that the Securities
(A) have not been registered under the Securities Act and,
therefore, cannot be sold unless they are subsequently registered
under the Securities Act or they are sold pursuant to an exemption
from such registration, and (B) are subject to additional
restrictions as provided herein. The Management
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Investor is able to bear such economic risk of his investment in the
Securities for an indefinite period of time;
(vi) The Management Investor has had an opportunity to ask
questions and receive answers concerning the terms and conditions of
the offering of the Securities and has had full access to such other
information concerning the Company as he or she has requested.
Without limiting the generality of the foregoing, the Management
Investor has been provided with copies of the Stockholders Agreement
and the Registration Rights Agreement and has had an opportunity to
review and ask questions and receive satisfactory answers concerning
the terms and conditions of such Stockholders Agreement and
Registration Rights Agreement;
(vii) The Management Investor is a resident and domiciliary of
the state or other jurisdiction hereinafter set forth opposite the
Management Investor's signature and the Management Investor has no
present intention of becoming a resident of any other state or
jurisdiction. If the Management Investor is a resident and
domiciliary of a state that requires the Company to ascertain
certain other information regarding the Management Investor, the
Company may attach a page to this Agreement containing additional
representations to be made by the Management Investor in connection
with the Management Investor's investment in the Securities, and by
signing this Agreement, the Management Investor shall be deemed to
have made such additional representations to the Company;
(viii) This Agreement, the Stockholders Agreement and the
Registration Rights Agreement constitute the legal, valid and
binding obligations of the Management Investor, enforceable in
accordance with their respective terms, and the execution, delivery
and performance of this Agreement, the Stockholders Agreement and
the Registration Rights Agreement by the Management Investor does
not and will not conflict with, violate or cause a breach of any
agreement, contract or instrument to which the Management Investor
is a party or any order, judgment or decree to which the Management
Investor is subject; and
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(ix) The Management Investor has not received and is not
relying upon any written offering literature or prospectus other
than the Stockholders Agreement and the Registration Rights
Agreement, and has not received and is not relying upon any oral
representations which are in any manner inconsistent with the
written information contained in such document.
(c) The Management Investor further acknowledges and agrees
that:
(i) none of (A) the issuance of the Shares to the Management
Investor, (B) the grant of the Warrants to the Management Investor
or (C) any provision contained herein shall entitle the Management
Investor to remain in the employment of the Company or affect the
right of the Company to terminate the Management Investor's
employment at any time for any reason;
(ii) the Company shall have no duty or obligation to disclose
to the Management Investor and the Management Investor shall have no
right to be advised of, any material information regarding the
Company, its Subsidiaries or Affiliates at any time prior to, upon
or in connection with the repurchase of the Securities upon the
termination of the Management Investor's employment with the Company
or as otherwise provided hereunder;
(iii) the Management Investor is to be an officer of the
Company, and has a high degree of familiarity with the business and
assets of the Company and the prospects of such business;
(iv) the Company is entering into this Agreement in reliance
upon the Management Investor's representations and warranties herein;
(v) all information which the Management Investor has provided
to the Company concerning the Management Investor, his or her
financial position and knowledge of and experience with financial
and business matters is correct and complete as of the date set
forth at the end of this Agreement, and if there should be any
material change in such information prior to the closing of this
offering, the Management Investor will immediately provide the
Company with such information; and
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(vi) the Management Investor is aware of the provisions of
Section 83(b) of the Internal Revenue Code of 1986, and the
regulations promulgated thereunder and has consulted with his or her
tax advisor as to the advisability of filing an election under said
Section. The Management Investor acknowledges that the Management
Investor has received independent tax advice with respect to tax
consequences resulting from the transactions contemplated herein.
(d) The Company and the Management Investor acknowledge and agree
that this Agreement has been executed and delivered and the Shares (upon
exercise of the Warrants) and the Warrants have been issued and granted,
respectively, hereunder, in connection with and as a part of the
compensation and incentive arrangements between the Company and the
Management Investor.
2. AGREEMENT TO THE STOCKHOLDERS AGREEMENT. The Management Investor
acknowledges and agrees that Securities are being issued (or granted)
hereunder pursuant to, and are subject in all respects to, this Agreement as
well as the Registration Rights Agreement, the Stockholders Agreement and the
Warrant Agreement, the terms and conditions of which are incorporated herein
as if set forth fully herein. The Management Investor acknowledges and
agrees to all the terms and conditions of this Agreement and such
Stockholders Agreement, Registration Rights Agreement and Warrant Agreement,
including the rights of repurchase, tag-along and drag-along rights, rights
of first refusal, vesting requirements, restrictions on transfer and other
provisions set forth herein and in such Stockholders Agreement, Registration
Rights Agreement and Warrant Agreement. The Management Investor acknowledges
that the certificates evidencing the Shares shall be imprinted with a legend
providing notice of such restrictions substantially in the form set forth
herein and in Section 10 of the Stockholders Agreement. The Management
Investor is aware that, except as expressly provided in the Registration
Rights Agreement, the Management Investor has no right to require
registration of any of the Securities and must bear the economic risk of
illiquid Securities. The Management Investor is also aware of and familiar
with the provisions of the Stockholders Agreement relating to the management
of the Company and the provisions regarding the election of members to the
Board.
3. BUYBACK PROVISIONS APPLICABLE TO THE SECURITIES.
(a) BUYBACK. If at any time prior to the initial public offering of
the Company, the Management Investor's employment with the Company is
terminated by either the Company
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or the Management Investor for any reason, then the Company or its
designee(s) hereby agrees to repurchase, and the Management Investor and his
transferees, if any, hereby agree to sell, the Securities (i.e. all of the
Shares and the Warrants that have not been cancelled and terminated pursuant
to the Warrant Agreement above), in whole, that are then owned by the
Management Investor or any transferee (such repurchase and sale being the
"Buyback"). The Company will, in connection with the Buyback, be entitled to
receive customary representations and warranties from the sellers regarding
such sale and to require that all sellers' signatures be guaranteed.
Notwithstanding anything to the contrary contained herein, the Buyback
shall be subject to applicable restrictions contained in the Delaware General
Corporation Law and in the Company's and its Subsidiaries' debt and equity
financing agreements. If any such restrictions prohibit the Buyback to any
extent, the Company shall repurchase such Securities and the Management
Investor (and any transferees) shall sell such Securities, to the extent
permitted by such restrictions within the time period specified in Section
3(b) below, and the Management Investor (and any transferees) shall complete
the repurchase and sale of the remaining Securities subject to the Buyback as
soon as they are permitted to do so under such restrictions. The Management
Investor shall be entitled to receive, and the Company shall pay, interest on
any portion of the Securities being sold subject to the restrictions set
forth in this paragraph, with such interest accruing at an annual rate of 10%
(beginning of the date that such Securities would have been sold but for the
restrictions), and with such interest being paid on the date that such
restricted portion of the Securities is repurchased.
(b) BUYBACK PRICE. The price applicable to the Buyback described
in Section 3(a) above shall be as follows:
(i) WARRANTS. If the Management Investor's employment with
the Company is terminated for Cause or as a result of the resignation of the
Management Investor (other than a resignation resulting from a diminution in
responsibility), then the aggregate repurchase/sale price for the Warrants
shall be equal to zero dollars ($0.00). If the Management Investor's
employment with the Company is terminated in any other manner, then the
aggregate repurchase/sale price for the Warrants shall be equal to the
Warrant Market Value as of the Date of Termination. Such repurchase/sale
price shall be paid by the Company by check, wire transfer, bank draft or
money order (subject to the obligations of the Management Investor as set
forth in Section 3(a)) within 60 days after the Date of Termination.
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(ii) SHARES. If the Management Investor's employment with the
Company is terminated for Cause or as a result of the resignation (other than
a resignation resulting from a diminution in responsibility) of the
Management Investor, then the repurchase/sale price per Share shall be equal
to the LOWER of cost or the Fair Market Value as of the Date of Termination,
with such amount to be paid (subject to the obligations of the Management
Investor as set forth in Section 3(a)) within two years after the Date of
Termination. If the Management Investor's employment is terminated as a
result of the expiration of his Employment Agreement or as a result of the
death or Disability of the Management Investor, then the repurchase/sale
price per share shall be equal to the Fair Market Value as of the Date of
Termination, with such amount (subject to the obligations of the Management
Investor as set forth in Section 3(a)) to be paid within 90 days (60 days if
termination is caused by the death or Disability of the Management Investor)
after the Date of Termination. If the Management Investor's employment is
terminated in any other manner, then the repurchase price per share shall be
the HIGHER of cost or the Fair Market Value as of the Date of Termination,
with such amount to be paid (subject to the obligations of the Management
Investor as set forth in Section 3(a)) within 60 days after the Date of
Termination.
(c) IPO. The Company hereby agrees that upon consummation of its
initial public offering, neither the Company nor its designees shall have any
right or obligation to repurchase any of the Securities that are then owned
by the Management Investor or its transferees and that the provisions of
Sections 3(a) and 3(b) above shall have no further force and effect. The
Management Investor hereby agrees that upon consummation of the Company's
initial public offering, neither the Management Investor nor its transferees
shall have any right or obligation to sell to the Company any of the
Securities that are then owned by the Management Investor or its transferees
and that the provisions of Sections 3(a) and 3(b) above shall have no further
force and effect.
4. TRANSFER RESTRICTIONS. The Management Investor shall hold the
Securities subject to the terms of the Stockholders Agreement, the
Registration Rights Agreement, the Warrant Agreement and the terms of this
Agreement. As provided in the Stockholders Agreement, the Shares may be
transferred in certain limited circumstances. As also provided in the
Stockholders Agreement and the Warrant Agreement, no Warrants may be
transferred. Any transferee of any Securities shall take those Securities
subject to the terms of the Stockholders Agreement, the Registration Rights
Agreement, the Warrant Agreement and this Agreement, including, without
limitation, the
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repurchase rights set forth in Section 3 of this Agreement. Any such
transferee must, upon the request of the Company, execute an agreement
agreeing to be bound by the Stockholders Agreement, the Registration Rights
Agreement, the Warrant Agreement and this Agreement and must agree to such
other waivers, limitations and restrictions as the Company may reasonably
require. The Company shall not, and shall not permit any transfer agent or
registrar for any shares of the Company's capital stock to, transfer upon the
books of the Company any shares of the Company's capital stock originally
issued hereunder or pursuant hereto in any manner except in accordance with
this provision, and any purported transfer not in compliance herewith shall
be void.
5. SECURITIES LAW RESTRICTIONS AND OTHER RESTRICTIONS ON TRANSFER OF
SHARES.
(a) The Management Investor is advised that federal and state securities
laws govern and restrict the Management Investor's right to offer, sell or
otherwise dispose of any Securities unless the Management Investor's offer,
sale or other disposition thereof is registered under the Securities Act and
state securities laws, or in the opinion of the Company's counsel, such
offer, sale or other disposition is exempt from registration or qualification
thereunder. The Management Investor agrees that the Management Investor will
not offer, sell or otherwise dispose of any such Securities in any manner
which would: (i) require the Company to file any registration statement with
the Commission (or any similar filing under state law) or to amend or
supplement any such filing or (ii) violate or cause the Company to violate
the Securities Act, the rules and regulations promulgated thereunder or any
other state or federal law. The certificates for any Shares will bear such
legends as the Company deems necessary or desirable in connection with the
Securities Act or other rules, regulations or laws.
(b) The certificates representing the Shares will bear the following
legends:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAW, AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS THE SAME ARE REGISTERED AND QUALIFIED IN
ACCORDANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR IN
THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY SUCH
REGISTRATION AND QUALIFICATION ARE NOT REQUIRED."
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THAT CERTAIN
SECOND AMENDED AND RESTATED STOCKHOLDERS
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AGREEMENT, DATED AS OF NOVEMBER 7, 1996, A SUBSCRIPTION AGREEMENT, DATED
AS OF MARCH 3, 1997, AND A REGISTRATION RIGHTS AGREEMENT DATED AS OF JUNE
1, 1997 COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED TO THE HOLDER ON REQUEST TO THE SECRETARY
OF THE COMPANY. SUCH SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT,
SUBSCRIPTION AGREEMENT AND REGISTRATION RIGHTS AGREEMENT PROVIDE, AMONG
OTHER THINGS, FOR CERTAIN RESTRICTIONS ON VOTING, SALE, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES EVIDENCED BY THIS
CERTIFICATE AND THAT SUCH SECURITIES MAY BE SUBJECT TO PURCHASE BY THE
COMPANY AS WELL AS CERTAIN OTHER PERSONS UPON THE OCCURRENCE OF CERTAIN
EVENTS. ANY ISSUANCE, SALE, ASSIGNMENT, TRANSFER OR OTHER DISPOSITION OF
THE SECURITIES EVIDENCED BY THIS CERTIFICATE TO PERSONS WHO ARE NOT A
PARTY TO SUCH SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT SHALL BE
NULL AND VOID."
(c) Notwithstanding any other provision contained herein, the
Company may refuse to register any transfer of Securities if the registration
of such transfer would require the Company to register any class of equity
securities with the Commission under the Securities Exchange Act (except in
connection with an effective registration statement under the Securities Act).
(d) Unless otherwise set forth in the Stockholders Agreement or the
Registration Rights Agreement, the Management Investor may not effect any
Public Sale or distribution of any Shares or other equity securities of the
Company, or any Warrants or other securities convertible into or exchangeable
or exercisable for any of the Company's equity securities, during the ten
days prior to and the 120 days after the effectiveness of any underwritten
public offering of any class of the Company's equity securities, except as
part of such underwritten public offering or if otherwise consented to by the
Company in writing prior to such sale or distribution.
6. DEFINITIONS.
"AFFILIATE" means with respect to any Person, any other Person that
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by
agreement or otherwise.
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"BOARD" means the board of directors of the Company.
"CAUSE" shall have the meaning set forth in the
Employment Agreement.
"COMMISSION" means the United States Securities and
Exchange Commission.
"COMMON STOCK" means the Company's common stock, par value $0.001
per share, or in the event that the outstanding Common Stock is hereafter
changed into or exchanged for different stock or securities of the Company,
such other stock or securities.
"DATE OF TERMINATION" shall have the meaning set forth in the
Management Investor's Employment Agreement.
"DISABILITY" shall mean the Management Investor's physical or mental
disability or infirmity which, in the opinion of a competent physician
selected by the Board, renders the Management Investor unable to perform his
duties under the Management Investor's Employment Agreement for more than 90
days during any 180-day period.
"EMPLOYMENT AGREEMENT" means the Employment Agreement dated as of
March 3, 1997, by and between the Management Investor and the Company.
"FAIR MARKET VALUE" means the fair market value (as determined by a
nationally recognized investment banking, valuation or appraisal firm of the
Company's choice paid for by the Company) of the Company's common shares (or
other securities if in the context of untraded securities distributed in
connection with a Qualified Sale) divided by the number of such shares, as
determined on a fully-distributed basis without regard to liquidity or size
relative to the number of shares outstanding.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department,
agency or political subdivision thereof.
"PUBLIC SALE" means any sale pursuant to a registered public
offering under the Securities Act or any sale to the public pursuant to Rule
144 promulgated under the Securities Act (if and as modified by Rule 701(c)
under the Securities Act) effected through a broker, dealer or market maker.
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"QUALIFIED SALE" shall mean (i) any sale of all or substantially all
of the assets of the Company or (ii) any sale, merger or liquidation of the
Company with or into any entity (other than OCM Principal Opportunities
Fund, L.P., TCW Special Credits Fund V - The Principal Fund, Logistical
Simon, L.L.C., or any Affiliate of the foregoing) whereby such entity shall
obtain (A) at least a majority of the voting stock of the surviving entity
and (B) the right to elect a majority of the surviving entity's board of
directors.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of June 1, 1997 by and among the Company and the Investors
listed in Exhibit A thereto, as the same may be amended from time to time.
"SECURITIES" means the Shares and the Warrants.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"SHARES" means, with respect to the Management Investor, (a) any
shares of Common Stock of the Company purchased by the Management Investor
upon exercise of the Warrants and (b) any shares of the capital stock of the
Company issued in respect of any of the securities described in clause (a)
above, whether by way of stock dividend, stock split, merger, consolidation,
reorganization or other recapitalization. Except as otherwise expressly
provided in the Stockholders Agreement, each subsequent holder of the Shares
shall succeed to all rights and obligations hereunder attributable to the
Management Investor as a holder of Shares.
"STOCKHOLDERS AGREEMENT" means the Second Amended and Restated
Stockholders Agreement dated as of November 7, 1996 by and among the Company and
the Holders listed in Exhibit A thereto, as the same may be amended from time to
time.
"SUBSIDIARY" means any corporation of which the Company owns, directly
or through one or more intermediaries, securities having a majority of the
ordinary voting power in electing the board of directors of such corporation.
"WARRANT AGREEMENT" means that warrant certificate (#___), executed by
the Company as of March 3, 1997, certifying that the Management Investor has
been granted the Warrants by the Company.
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"WARRANT MARKET VALUE" means the amount by which the Fair Market Value
multiplied by the number of common shares underlying the Warrants exceeds the
Warrant Purchase Price multiplied by the number of common shares underlying the
Warrants. If the Warrant Purchase Price is greater than or equal to the Fair
Market Value, then the "Warrant Market Value" shall equal $0.00.
"WARRANT PURCHASE PRICE" has the meaning set forth in the Warrant
Agreement.
7. NOTICES. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall
be deemed to have been duly given and made and served either by personal
delivery to the person for whom it is intended or if deposited, postage
prepaid, registered or certified mail, return receipt requested, in the
United States mail:
If to the Company, addressed to:
International Logistics Limited
000 X. Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
With copies to:
Milbank, Tweed Hadley & XxXxxx
000 X. Xxxxxxxx Xx.,
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
If to the Management Investor, addressed to:
the Management Investor at his address shown on the stock
records of the Company, or at such other address as the
Management Investor may specify by written notice to the
Company
8. MISCELLANEOUS.
(a) Upon its acceptance by the Company, this Agreement shall
be binding upon and inure to the benefit of the Company and its successors
and assigns and the Management Investor and the Management Investor's
executors or administrators, personal representatives, heirs, legatees and
distributees.
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(b) This Agreement shall be governed by and construed in
accordance with the local law, and not the law of conflicts, of the State
of Delaware.
(c) In any conflict between the terms and provisions of this
Agreement and the terms and provisions of the Stockholders Agreement, the
Warrant Agreement or the Registration Rights Agreement, the terms and
provisions of the Stockholders Agreement, the Warrant Agreement or
Registration Rights Agreement, as the case may be, shall govern.
(d) No course of dealing or any delay or failure to exercise any
right, power or remedy hereunder on the part of any party hereto shall
operate as a waiver of or otherwise prejudice such party's rights, powers
or remedies.
(e) Notwithstanding anything in this Agreement, the Company
shall not be obligated to issue, grant or sell any Securities to any Person
if, in the judgment of the Board, such issuance or sale may violate Federal
or applicable state securities laws or regulations or may require the
Company to register or qualify any such Securities under any Federal or
state securities laws, or require the Company or any of its agents or
representatives to register or qualify with any governmental agency or
organization, pursuant to such laws or regulations.
(f) This Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter hereof
between the parties and contains the sole and entire agreement between the
parties hereto with respect to the subject matter hereof.
9. JOINT SIGNATORIES; SUCCESSORS AND ASSIGNS. If this Agreement
is signed by more than one Person or entity, then the obligations of the
undersigned shall be joint and several, and the acknowledgements,
representations, warranties and agreements herein contained shall be deemed
to be made by and be binding upon each such Person or entity. This Agreement
shall survive the death or disability of the undersigned and shall be binding
upon the undersigned's heirs, executors, administrators, successors and
assigns.
10. ACCREDITED INVESTOR. Please initial all boxes which apply to
you.
_ I will be a director or executive officer of the Company;
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_ I am a natural person whose individual net worth, or joint
net worth with my spouse, exceeds $1 million;
_ I am a natural person and had individual (NOT JOINT) income
in excess of $200,000 in each of the two most recent years
and reasonably expect to reach the same income level in the
current year;
_ I am a natural person and had joint income (together with
my spouse) in excess of $300,000 in each of the two most
recent years and reasonably expect to reach the same income
level in the current year;
_ I am a person who is subscribing to purchase $150,000 or
more of the Securities, and this investment does not exceed
10% of my personal net worth or my joint net worth with my
spouse;
_ The undersigned is an organization described in Section
501(c)(3) of the Internal Revenue Code of 1986 as amended
(I.E., tax exempt entities), a corporation, a trust, a
Massachusetts or similar business trust, or a partnership,
not formed for the specific purpose of acquiring
Securities, with total assets in excess of $5 million and
the investment decisions of which are directed by one or
more persons able to make the representation set forth in
Section 8(e) above;
_ The undersigned is an employee benefit plan within the
meaning of Title I of the Employment Retirement Income
Security Act of 1974, the investment decisions of which are
made by a plan fiduciary, as defined in Section 9(21) of such
Act, which is either a bank, a savings and loan
association, an insurance company, or a registered
investment advisor;
_ The undersigned is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974, which either has total assets in excess of
$5 million or is a self-directed plan, the
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investment decisions of which are made solely by one or
more persons able to make the representations contained
in Section 8(e) above and who fits into one of the above
categories; or
_ The undersigned is an entity in which all of the equity
owners are accredited investors, falling into one or more
of the categories described above.
11. CERTIFICATION AS TO TAXPAYER IDENTIFICATION NUMBER AND BACKUP
WITHHOLDING AND NON-FOREIGN STATUS-SUBSTITUTE FORM W-9; SOCIAL SECURITY OR
TAX ID NUMBER. Under penalties of perjury, the Management Investor certifies
by his or her signature below that (a) the number shown on this form is his
or her correct taxpayer identification number; (b) the Management Investor is
not subject to backup withholding either because (i) the Management Investor
is exempt from backup withholding, (ii) the Management Investor has not been
notified that the Management Investor is subject to backup withholding as a
result of a failure to report all interest or dividends, or (iii) the
Internal Revenue Service has notified the Management Investor that the
Management Investor is no longer subject to backup withholding; (c) the
Management Investor is not a non-resident alien for purposes of U.S. income
taxation; (d) the Management Investor's home address (individual) or business
address (entity) set forth in this Agreement is correct; and (e) if the
Management Investor becomes a non-resident alien, the Management Investor
will notify the Company within 60 days of doing so.
IF THE MANAGEMENT INVESTOR HAS BEEN NOTIFIED BY THE IRS THAT THE MANAGEMENT
INVESTOR IS PRESENTLY SUBJECT TO BACKUP WITHHOLDING, STRIKE OUT THE LANGUAGE
UNDER (b) ABOVE BEFORE SIGNING.
12. TYPE OF OWNERSHIP FOR THE SHARES TO BE ACQUIRED.
(Check the Appropriate Box)
_ INDIVIDUAL OWNERSHIP BY UNMARRIED PERSON
_ OWNERSHIP BY MARRIED PERSON AS SOLE AND SEPARATE PROPERTY
(if the Management Investor lives in a state which has
community property laws, signatures of both spouses may be
required)
_ COMMUNITY PROPERTY (signatures of both spouses are required)
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_ JOINT TENANTS WITH RIGHT OF SURVIVORSHIP
(both parties must sign)
_ TENANTS-IN-COMMON (both parties must sign)
_ TRUST*
_ OTHER ENTITY*
* Any Person executing this Agreement on behalf of such
entities hereby represents and agrees that: (i) he or she
is duly authorized to act on behalf of such corporation,
partnership, trust or other entity, (ii) such corporation,
partnership, trust or other entity was formed on
_________________, 19___, and (iii) he or she will provide
such information as the Company may request confirming the
authority to sign on behalf of such entity.
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MANAGEMENT INVESTOR ELECTION AND SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the latest date written below.
MANAGEMENT INVESTOR:
No. of Warrants: _____
_____________________________ _______________________________
Management Investor (Print or Business Name
Type Name)
_____________________________ _______________________________
Signature Business Address
_____________________________ _______________________________
Social Security or Tax ID # City and State Zip
_____________________________ _______________________________
Residence Street Address Business Telephone
_____________________________ Mail Correspondence to:
City and State Zip
_ Residence _ Business
_____________________________
Residence Telephone
_____________________________
Other Investor (Print or Type
Name)
_____________________________
Signature
_____________________________
Social Security or Tax ID #
_____________________________
Residence Street Address
_____________________________
City and State Zip
_____________________________
Residence Telephone
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COMPANY:
Accepted as of this 3rd day of March, 1997.
INTERNATIONAL LOGISTICS LIMITED
a Delaware corporation
By: _______________________
Xxxxx X. Xxxxxx
Its: President and
Chief Executive Officer
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