Exhibit 4.6
THE
WARRANT EVIDENCED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK PURCHASABLE UPON EXERCISE OF THE WARRANT ARE SUBJECT TO
CANCELLATION PURSUANT TO THE OPTION AGREEMENT DATED MAY 29, 1997
AND ARE SUBJECT TO A SECOND AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT DATED AS OF NOVEMBER 7, 1996, A REGISTRATION RIGHTS
AGREEMENT AND A SUBSCRIPTION, AGREEMENT EACH DATED AS OF THE
EFFECTIVE DATE, 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, REGISTRATION RIGHTS AGREEMENT AND
SUBSCRIPTION AGREEMENT PROVIDE, AMONG OTHER THINGS, FOR CERTAIN
RESTRICTIONS ON VOTING, SALE, TRANSFER, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION OF THE WARRANT EVIDENCED BY THIS CERTIFICATE AND
THE SHARES OF COMMON STOCK PURCHASABLE UPON EXERCISE OF THE WARRANT
AND THAT SUCH SHARES OF COMMON STOCK ARE SUBJECT TO PURCHASE BY THE
COMPANY AS WELL AS CERTAIN OTHER PERSONS UPON THE OCCURRENCE OF
CERTAIN EVENTS. ANY SALE, ASSIGNMENT, TRANSFER OR OTHER
DISPOSITION OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE TO
PERSONS OTHER THAN IN ACCORDANCE WITH SUCH SECOND AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT, REGISTRATION RIGHTS AGREEMENT AND
SUBSCRIPTION AGREEMENT SHALL BE NULL AND VOID.
THE
WARRANT EVIDENCED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK PURCHASABLE UPON EXERCISE OF THE WARRANT HAVE NOT BEEN
REGISTERED OR QUALIFIED PURSUANT TO THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ ACT ”), ANY STATE SECURITIES LAW
OR ANY FOREIGN SECURITIES OR OTHER APPLICABLE FOREIGN LAW OF ANY
JURISDICTION OUTSIDE THE UNITED STATES, AND SUCH WARRANT AND SUCH
SHARES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
THE SAME IS REGISTERED AND QUALIFIED IN ACCORDANCE WITH THE ACT,
ANY APPLICABLE STATE SECURITIES LAW AND ANY APPLICABLE FOREIGN
SECURITIES OR OTHER APPLICABLE FOREIGN LAW, OR IN THE OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY SUCH REGISTRATION
AND QUALIFICATION ARE NOT REQUIRED.
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No.
28
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Warrant to Purchase
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5,861 Shares Dated
as of the Effective Date
(as defined below)
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WARRANT
To
Purchase Common Stock of
INTERNATIONAL LOGISTICS LIMITED
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Purchase Price
of Common Stock:
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Purchase price per share
as set forth below
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(subject to
adjustment as described herein).
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THIS WARRANT CERTIFIES that, for value
received, Cotech Company Inc., a company organized under the laws
of the British Virgin Islands, or registered assigns is entitled,
on the first Business Day immediately following the Effective Date
(as defined herein) and prior to the close of business in Chicago,
Illinois on the Expiration Date (as defined herein), to purchase
5,861 shares of Common Stock in International Logistics Limited, a
Delaware corporation (the “ Company ”), at a
purchase price per share equal to $45.00 (U.S.) (the “
Warrant Purchase Price ”) upon surrender of this
Warrant at the principal office of the Company, and payment of such
purchase price by bank check, cashier’s check, certified
check, wire transfer or by a cashless exercise as set forth in
Section 2.B.2, below. The Warrant Purchase Price shall be
effective as of the Effective Date.
This Warrant is issued by the Company in
connection with the closing of the transactions contemplated by the
Option Agreement (as defined herein). The terms and conditions of
the Warrant are set forth herein. Any capitalized terms used herein
and not defined herein shall have the meanings set forth in the
Stockholders Agreement (as defined herein).
SECTION 1
Definitions
“ Business Day ” means any
day other than a Saturday, a Sunday, or any day on which commercial
banks in the city of Chicago, Illinois are authorized or required
by law to close.
“ Common Stock ” means (i)
any shares of the Common Stock of the Company, $.001 par value per
share, authorized on the date of the original issue of this Warrant
or (ii) 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.
“ Effective Date ” means the
date on which the Company acquires 100% of the ordinary shares and
other equity interests in LEP International Worldwide Limited, a
corporation registered under the laws of England, that are
currently beneficially owned by Wolfgang Hollermann.
“ Expiration Date ” means
December 31, 2007.
“ Fair Market Value ” shall
mean the amount obtained by dividing (A) (EBITDA X 5) - (Debt - CA)
by (B) the number of shares of Common Stock outstanding plus the
number of shares subject to options and warrants (to the extent
such options and
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warrants are exercisable at an exercise price
below Fair Market Value) on the valuation date. For the purpose of
this definition only: “EBITDA” means the
Company’s consolidated earnings before interest, taxes,
depreciation and amortization for the four fiscal quarters of the
Company ending on the last day of the fiscal quarter immediately
preceding the valuation date, computed in accordance with generally
accepted Accounting principles; “Debt” means any
current or long-term indebtedness of the Company as of the last day
of the fiscal quarter immediately preceding the valuation date
(including capitalized lease obligations and accrued but unpaid
interest), as set forth on the Company’s consolidated balance
sheet (prepared in accordance with generally accepted accounting
principles); and “CA” means the Company’s
consolidated cash and cash equivalents on hand as of the last day
of the fiscal quarter immediately preceding the valuation data,
including, without limitation, payments that have bean received or
will be received upon the exercise of options and warrants to the
extent such options and warrants are exercisable at an exercise
price below Fair Market Value as set forth on its consolidated
balance sheet (prepared in accordance with generally accepted
accounting principles).
“ Family Member ” means (a)
to the extent alive at the time of determination, Wolfgang
Hollermann, his spouse, his siblings, his children, his
childrens’ spouses, his grandchildren or his
grandchildrens’ spouses or (b) any trust of which the sole
beneficiaries are, at the time of determination, one or more of the
foregoing.
“ Initial Public Offering ”
means the first underwritten public offering of Common Stock by the
Company pursuant to a registration of shares under the Securities
Act on a Form S-1 Registration Statement (or equivalent or
successor form).
“ OCM ” means OCM Principal
Opportunities Fund, L.P., a Delaware limited
partnership.
“ OCM Affiliates ” means any
investor in or any employee of OCM or Oaktree Capital Management,
LLC (“ Oaktree ”), a California limited
liability company, or in any company, joint venture, limited
liability company, association or partnership of which the OCM or
Oaktree, is a shareholder, manager or general partner, as the case
may be.
“ Option Agreement ” means
the Option Agreement dated as of May 29, 1997, by and among the
Company, Wolfgang Hollermann and Cotech Company Inc., a company
organized under the laws of the British Virgin Islands.
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“ Qualified Sale ” shall
mean (i) any sale of all or substantially all of the assets of the
Company to any entity or (ii) any sale, merger or liquidation of
the Company with or into any entity other than to or with OCM, TCW,
WES&S, an OCM Affiliate, a TCW Affiliate or a WES&S
Affiliate whereby such entity or the holders of a majority of the
voting stock thereof 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 the
Effective Date, by and among the Company and each of the Investors
listed on exhibit A thereto, as the same may be amended from
time to time.
“ Securities Act ” means the
Securities Act of 1933, as amended and as the same may be amended
from time to time.
“ Simon Entity ” means
Logistical Simon, L.L.C., a Delaware limited liability corporation,
WESINVEST, Inc., a Delaware corporation, or William E. Simon &
Sons, L.L.C., a Delaware limited liability company.
“ Stockholders Agreement ”
means the Second Amended and Restated Stockholders Agreement dated
as of November 7, 1996, by and among the Company and each of
the other Holders listed on exhibit A thereto, as the same
may be amended from time to time.
“ TCW ” means TCW Special
Credits Fund V - The Principal Fund, a California limited
partnership.
“ TCW Affiliates ” means any
investor in or any employee of TCW, TCW Asset Management Company, a
California corporation (“ TAMCO ”), Trust
Company of the West, a California trust company (“
Trustco ”) or Oaktree, or in any company, joint
venture, limited liability company, association or partnership of
which TCW, TAMCO, Trustco or Oaktree, is a shareholder, manager or
general partner, as the case may be.
“ Trading Price ” means the
trading price for each such trading day: (a) if the Common Stock is
traded on a national securities exchange in the United States of
America, its last reported sale price on the preceding Business Day
on such national securities exchange or, if there was no sale on
that day, the last reported sale price on such national securities
exchange on the next preceding Business Day on which there was a
sale, all as made available over the Consolidated Last Sale
Reporting System of the CTA Plan (the “ CLSRS ”)
or, if the Common Stock is not then eligible for reporting over the
CLSRS, its last reported sale price on the preceding Business Day
on such
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national securities exchange or, if there was
no sale on that day, on the next preceding Business Day on which
there was a sale on such exchange or (b) if the principal market
for the Common Stock is the over-the-counter market in the United
States of America, but the Common Stock is not then eligible for
reporting over the CLSRS, but the Common Stock is quoted on the
National Association of Securities Dealers Automated Quotations
System (“ NASDAQ ”) the last sale price reported
on NASDAQ on the preceding Business Day or, if the Common Stock is
an issue for which last sale prices are not reported on NASDAQ, the
closing bid quotation on such day, but in each of the next
preceding two cases, if the relevant NASDAQ price or quotation did
not exist on such day, then the price or quotation on the next
preceding Business Day in which there was such a price or
quotation.
“ WES&S Affiliate ”
means any Simon Entity or any partnership, limited liability
company or corporation that directly or indirectly, through one or
more intermediaries, has control of, is controlled by or is under
common control with (i) any Simon Entity or (ii) any shareholder,
partner or member of a Simon Entity or any such
shareholder’s, partner’s or member’s spouse,
siblings, children, children’s spouses, grandchildren or
their spouses or any trusts for the benefit of any of the
foregoing.
“ Warrant Purchase Price ”
has the meaning assigned to that term in the introductory paragraph
hereof.
“ Warrant Shares ” means the
shares of Common Stock purchased or purchasable by the
Warrantholder upon the exercise of the Warrant pursuant to
Section 2 hereof.
“ Warrantholder ” means the
registered holder of the Warrant and any related Warrant
Shares.
SECTION 2
Exercise
A.
General . The Warrantholder shall be entitled to
exercise the Warrant on the first Business Day immediately
following the Effective Date, in whole or in part, at any time or
from time to time on or before 5:00 p.m., Chicago, Illinois time,
on the Expiration Date.
B.
Manner of Exercise . The Warrantholder may exercise
the Warrant, in whole or in part, by either of the following
methods:
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1.
The Warrantholder shall complete one of the Subscription Forms
attached hereto, and deliver it to the Company, at its principal
offices located at 330 S. Mannheim Road, Hillside, IL 60162,
Attention: Chief Executive Officer (or at such other location as
the Company may designate by notice in writing to the
Warrantholder), together with the Warrant and either a certified
check, a bank cashier’s check or wire transfer, in an amount
in U.S. Dollars equal to the then aggregate Warrant Purchase Price
of the shares of Common Stock being purchased; or
2.
The Warrantholder may, alternatively at its election, exercise this
Warrant, in whole or in part, in a “cashless” exercise
by delivering to the Company, at its principal offices located at
330 S. Mannheim Road, Hillside, IL 60162, Attention: Chief
Executive Officer (or at such other location as the Company may
designate by notice in writing to the Warrantholder), (i) one of
the Subscription Forms attached hereto, which notice shall specify
the number of Warrant Shares to be delivered to such Warrantholder
and the number of Warrant Shares with respect to which this Warrant
is being surrendered in payment of the aggregate Warrant Purchase
Price for the Warrant Shares to be delivered to the Warrantholder,
and (ii) the Warrant. For purposes of this cashless exercise
provision, each Warrant Share as to which the Warrant is
surrendered will be attributed the following per share value:
(i) prior to an Initial Public Offering (other than in the context
of a Qualified Sale), at the Fair Market Value; (ii) prior to
an Initial Public Offering and in the context of a Qualified Sale,
the per share consideration received by the stockholders with
respect to their outstanding shares of Common Stock; (iii)
concurrently with an Initial Public Offering, a value equal to the
Initial Public Offering offer price per share to the public; or
(iv) subsequent to an Initial Public Offering, a value per share
equal to the average Trading Price of the Company’s Common
Stock for the twenty (20) preceding
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