EXHIBIT 10.22
Securities Purchase Agreements in substantially identical form to the
Securities Purchase Agreement filed herewith below were also entered into on
November 13, 1997 between AmeriTruck Distribution Corp. (the "Company") and each
of the below named individuals. Pursuant to such agreements, the Company issued
Subordinated Notes and Common Stock Purchase Warrants in substantially identical
form to those filed herewith below to each of such below named individuals. The
respective Purchase Prices set forth on the signature page to each such
Securities Purchase Agreement and the respective principal amounts of such
Subordinated Notes issued to such individuals are as set forth below opposite
each such individual's name:
Purchase Price/
Name Note Amount
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Xxxxxx Xxxxx $10,000
Xxxxxxx X. Xxxxxxxx $40,000
Xxxxxx X. Xxxxxx $40,000
Xxxxxxx X. Xxxxxxxxx $ 6,000
SECURITIES PURCHASE AGREEMENT
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This SECURITIES PURCHASE AGREEMENT (this "Agreement") is dated as of
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November 13, 1997, by and between (i) AmeriTruck Distribution Corp., a Delaware
corporation (the "Company"), and (ii) the Person named on the signature hereto
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as the Investor (the "Investor").
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WHEREAS, the Company wishes to sell and the Investor wishes to buy certain
securities of the Company on the terms and subject to the restrictions contained
in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the Company and the Investor agree as follows:
1. DEFINITIONS.
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For all purposes of this Agreement, the following terms shall have the
meanings set forth herein or elsewhere in the provisions hereof:
"Applicable Number" shall have the meaning specified in the Warrant issued
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to the Investor on the Closing Date.
"BBV" shall mean BancBoston Ventures Inc.
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"Charter" shall include the articles or certificate of incorporation,
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statute, constitution, operating agreement, joint venture or partnership
agreement or articles or other charter of any Person other than an individual,
each as from time to time amended and in effect.
"Class A Common Stock" shall have the meaning specified in Section 4.5(a)
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hereof.
"Class B Common Stock" shall have the meaning specified in Section 4.5(a)
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hereof.
"Class C Common Stock" shall have the meaning specified in Section 4.5(a)
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hereof.
"Closing" shall have the meaning specified in Section 2.2 hereof.
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"Closing Date" shall have the meaning specified in Section 2.2 hereof.
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"Commission" shall mean the Securities and Exchange Commission.
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"Common Stock" shall mean, collectively, the Class A Common Stock, the
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Class B Common Stock and the Class C Common Stock, each having the rights and
privileges set forth in the Company's Charter, and any capital stock or other
securities into which or for which such Class A Common Stock, Class B Common
Stock or Class C Common Stock shall have been converted or exchanged pursuant to
any recapitalization, reorganization or merger of the Company.
"Company" shall have the meaning specified in the introductory paragraph
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hereof.
"Conversion Price" shall mean, in relation to a share of Conversion Stock
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at the time of the exercise of any Note holder's conversion rights set forth in
Section 3.4 hereof, the price for such share of such Conversion Stock payable
generally by the investors purchasing such shares in the Qualified Private
Placement in connection with which such conversion rights are being exercised.
"Conversion Stock" shall mean, in the event of a conversion of any Note
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pursuant to (S)3.4 hereof, the shares of any class of capital stock of the
Company which shall be issued by the Company in the applicable Qualified Private
Placement.
"Default" shall mean an event or condition which with the passage of time
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or giving of notice, or both, would become an Event of Default.
"Event of Default" shall have the meaning specified in Section 7.1 hereof.
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"Indebtedness" shall mean (a) all Indebtedness of the Company and its
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Subsidiaries for borrowed money, whether current or funded, or secured or
unsecured, (b) all Indebtedness of the Company and its Subsidiaries for the
deferred purchase price of property or services represented by a note or other
security, (c) all Indebtedness of the Company and its Subsidiaries created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by any of the Company or its Subsidiaries (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (d)
all Indebtedness of the Company and its Subsidiaries secured by a purchase money
mortgage or other lien to secure all or part of the purchase price of property
subject to such mortgage or lien, (e) all obligations under leases which shall
have been or should be, in accordance with generally accepted accounting
principles, recorded as capital leases in respect of which any of the Company or
its Subsidiaries is liable as lessee, (f) any liability of any of the Company
and its Subsidiaries in respect of banker's acceptances or letters of credit,
and (g) all Indebtedness referred to in clause (a), (b), (c), (d), (e) or (f)
above which is directly or indirectly guaranteed by any of the Company and its
Subsidiaries or which any of the Company and its
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Subsidiaries has agreed (contingently or otherwise) to purchase or otherwise
acquire or in respect of which it has otherwise assured a creditor against loss.
"Indenture" shall mean the Indenture dated November 15, 1995 among the
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Company, certain of the Company's Subsidiaries and The Bank of New York, as
trustee thereunder.
"Investor" shall have the meaning specified in the introductory paragraph
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hereof.
"Investor Percentage" shall mean a percentage equal to (i) the quotient of
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the Purchase Price divided by $1,000,000 multiplied by (ii) 100.
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"Loan Agreement" shall mean the Loan and Security Agreement dated as of May
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5, 1997, among the Company and the Senior Lender, as such Loan Agreement may be
amended, restated, modified, supplemented, extended or renewed and in effect
from time to time.
"Majority Holders of the Notes" shall mean the holder or holders at the
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relevant time (excluding the Company) of at least 51% of the then outstanding
principal amount of the Notes.
"Management Fee Agreement" shall mean the Management Fee Agreement dated as
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of the date hereof between the Company and First Capital Corporation of Boston,
as the same may be amended, restated, modified or supplemented and in effect
from time to time.
"Maximum Rate" shall have the meaning specified in Section 3.6(c).
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"Notes" shall mean the Note of the Company in the form of Exhibit A hereto
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issued to the Investor pursuant to Section 2.1 hereof and any other Notes
transferred to any other holders pursuant to Section 8 hereof.
"Person" shall mean an individual, partnership, corporation, limited
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liability company, association, trust, joint venture, unincorporated
organization, or any government, governmental department or agency or political
subdivision thereof.
"Preferred Stock" shall have the meaning specified in Section 4.5(a)
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hereof.
"Public Sale" shall mean any sale of Common Stock or Preferred Stock to the
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public pursuant to a public offering registered under the Securities Act, or to
the public through a broker or market-maker pursuant to the provisions of Rule
144 (or any successor rule) adopted under the Act.
"Purchase Price" shall have the meaning set forth in Section 2.1 hereof.
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"Purchased Securities" shall have the meaning set forth in Section 2.1
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hereof.
"Qualified Private Placement" shall mean any non-public sale of shares of
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any class of the Company's capital stock yielding gross proceeds to the Company
of at least $10,000,000.
"Registration Rights Agreement" shall mean the Registration Rights
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Agreement, dated as of November 15, 1995, among the Company and the stockholders
of the Company named therein, as the same may be amended, restated, modified or
supplemented and in effect from time to time.
"Related Agreements" shall mean, collectively, the Securities, the
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Management Fee Agreement and the Charter of the Company.
"Securities" shall mean the Notes and the Warrants.
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"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Senior Indebtedness" shall have the meaning given to such term in the
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Indenture.
"Senior Lender" shall mean FINOVA Capital Corporation and any other lender
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from time to time party to the Loan Agreement.
"Senior Subordinated Notes" shall mean the Company's 12-1/4% Senior
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Subordinated Notes due 2005 issued pursuant to the Indenture.
"Small Business Act" shall mean the Small Business Investment Act of 1958,
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as amended, or any successor federal statute, and the rules and regulations of
the Small Business Administration thereunder, all as the same shall be in effect
from time to time.
"Stockholder Agreement" shall mean the Stockholder Agreement, dated as of
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November 15, 1995, among the Company and the stockholders of the Company named
therein, as the same may be amended, restated, modified or supplemented and in
effect from time to time.
"Subsidiary" shall mean, with respect to the Company, any corporation a
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majority (by number of votes) of the outstanding shares of any class or classes
of which shall at the time be owned by the Company or by a Subsidiary of the
Company, if the holders of the shares of such class or classes (a) are
ordinarily, in the absence of contingencies, entitled to vote for the election
of a majority of the
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directors (or persons performing similar functions) of the issuer thereof, even
though the right so to vote has been suspended by the happening of such a
contingency, or (b) are at the time entitled, as such holders, to vote for the
election of a majority of the directors (or persons performing similar
functions) of the issuer thereof, whether or not the right so to vote exists by
reason of the happening of a contingency.
"Transfer Notice" shall have the meaning specified in Section 8.2 hereof.
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"Warrants" shall mean the Common Stock Purchase Warrant of the Company
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issued to the Investor hereunder and any other Common Stock Purchase Warrants
transferred to any other holders in accordance with the terms hereof.
2. SALE AND PURCHASE OF PURCHASED SECURITIES.
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2.1. Sale and Purchase of Purchased Securities. The Company agrees to
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issue and sell to the Investor, and, subject to all of the terms and conditions
hereof and in reliance on the representations and warranties set forth or
referred to herein, the Investor agrees to purchase the following Securities
(collectively, the "Purchased Securities") for the dollar amount specified by
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the Investor on the signature page hereto (the "Purchase Price"):
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(a) a Note of the Company in the form of Exhibit A hereto in the principal
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amount equal to the Investor Percentage multiplied by $1,000,000;
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(b) a Warrant in the form of Exhibit B hereto for the purchase of a number
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of shares of Common Stock equal to the Applicable Number.
2.2. Closing. The closing of the purchase and sale of the Purchased
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Securities (the "Closing") will take place at the offices of the Company on
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November __, 1997 or such other date as the parties hereto may agree upon (the
"Closing Date"). At the Closing, the Company will deliver to the Investor the
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Purchased Securities against payment by the Investor of the Purchase Price by
wire transfer or by check. The Purchased Securities purchased by the Investor
will be issued to the Investor on or before the Closing Date and registered in
the Investor's name in the Company's records. At the Closing, the Company will
also deliver to you the application fee and the closing fee referred to in
Section 6.12 hereof in immediately available funds.
2.3. Use of Proceeds. The Company agrees that it will use the proceeds
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from the sale of the Purchased Securities hereunder solely to provide a bridge
financing for working capital and general corporate purposes of the Company in
anticipation of the consummation of a Qualified Private Placement.
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3. PRINCIPAL AND INTEREST PAYMENTS ON NOTES.
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3.1. Mandatory Principal Repayments.
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(a) The Company agrees to repay the principal amount of the Notes, together
with all accrued and unpaid interest thereon, in one installment on April 1,
1998.
(b) Notwithstanding the provisions of Section 3.1(a) hereof, concurrently
with the consummation of a Qualified Private Placement, the Company agrees to
repay the principal amount of the Notes then outstanding, together with all
accrued and unpaid interest thereon.
3.2. No Prepayments. The Company shall not be permitted to prepay the
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Notes without the written consent of the Majority Holders of the Notes and of
the Senior Lender.
3.3. Application of Payments. Any repayment of less than the entire
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aggregate unpaid principal amount of all outstanding Notes and all other notes
of the Company issued pursuant to each of the other securities purchase
agreements of even date herewith between the Company and certain other
stockholders, directors and executive officers of the Company, shall be applied
pro rata to all outstanding Notes and all such other notes of the Company,
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according to the respective unpaid principal amounts thereof.
3.4. Conversion Rights. Notwithstanding the provisions of Section 3.1(b)
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hereof, in connection with the consummation by the Company of a Qualified
Private Placement, the holder of any Note may, but shall not be obligated to,
convert any portion of the unpaid principal amount of, and accrued and unpaid
interest on, such Note, into such number of whole shares of Conversion Stock as
such portion of the unpaid principal amount of, and accrued and unpaid interest
on, such Note, will purchase at the Conversion Price, upon the terms and subject
to the conditions hereinafter specified. The Company agrees to give each holder
of Notes not less than ten (10) days prior written notice of the closing of a
Qualified Private Placement, accompanied by copies of the agreements containing
all of the material terms and provisions thereof, and such holder may then, by
notice to the Company not later than three (3) days prior to the date specified
in the Company's notice, exercise its conversion rights hereunder as to all or
any portion of the outstanding principal amount of, and accrued and unpaid
interest on, such Note. The holder's notice to the Company in connection with a
contemplated Qualified Private Placement may expressly provide that the exercise
of conversion rights as set forth therein is contingent upon the completion of
such Qualified Private Placement on the terms and provisions described in the
Company's notice thereof.
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3.5. No Reborrowing. No amount repaid pursuant to Section 3.1 may be
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reborrowed under the Notes.
3.6. Interest Payments.
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(a) Subject to Section 3.6(b) hereof, the unpaid principal amount of the
Notes outstanding from time to time shall bear interest at a rate equal to
fourteen percent (14%) per annum. Interest on the Notes shall be calculated on
the basis of the actual number of days elapsed and a 360 day year, shall accrue
and be compounded quarterly in arrears on the first day of each calendar
quarter, commencing on the first such date to occur after the Closing Date,
until paid pursuant to Section 3.1 hereof or converted pursuant to Section 3.4
hereof.
(b) During the continuance of a Default or Event of Default of the type
described in Section 7.1(a) hereof, the principal and (to the extent permitted
by applicable law) interest on the Notes shall bear interest at a rate equal to
twenty-one percent (21%) per annum, payable on demand and compounded quarterly,
until such amount shall be paid in full.
(c) It is not intended by the holders of the Notes, and nothing contained
in this Agreement or any Note shall be deemed, to establish or require the
payment of a rate of interest in excess of the maximum rate permitted by
applicable federal, state or other law (the "Maximum Rate") and, to prevent such
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an occurrence, any agreement which may now or hereafter be in effect between the
Company and the holders of the Notes regarding the payment of fees or interest
to such holders is hereby limited by the provisions of this Section 3.6(c). If,
in any month, the effective interest rate applicable to the principal
outstanding under the Notes, absent the Maximum Rate limitation contained
herein, would have exceeded the Maximum Rate, then the effective interest rate
applicable to the Notes for that month shall be the Maximum Rate, and, if in any
subsequent month, the effective interest rate would otherwise be less than the
Maximum Rate, then the effective interest rate applicable to the Notes for such
month shall be increased to the Maximum Rate until such time as the amount of
interest paid hereunder equals the amount of interest which would have been paid
in respect of the Notes if the same had not been limited by the Maximum Rate. In
the event that, upon payment in full of the principal outstanding under the
Notes, the total amount of interest paid or accrued in respect of the Notes
under the terms of this Agreement is less than the total amount of interest
which would have been paid or accrued in respect of the Notes had the interest
not been limited hereby to the Maximum Rate, then the Company shall, to the
extent permitted by such applicable federal, state or other law, pay to each of
the holders of the Notes an amount equal to the excess, if any, of (i) the
lesser of (A) the amount of interest which would have been charged in respect of
the Notes if the Maximum Rate had, at all times, been in effect with respect to
the Notes and (B) the amount of interest which would have accrued in
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respect of the Notes had the effective interest rate applicable with respect to
the Notes at all times not been limited hereunder by the Maximum Rate over (ii)
the amount of interest actually paid or accrued in respect of the Notes held by
such holder under this Agreement. In the event that the holders of the Notes
receive, collect or apply as interest any sum in excess of the Maximum Rate,
such excess amount shall be applied in accordance with Section 3.3 hereof to the
reduction of principal outstanding under the Notes and such other notes of the
Company described in Section 3.3 and if no such principal is then outstanding,
such excess or part thereof remaining, shall be paid to the Company.
3.7. Subordination. Notwithstanding any other provision of this
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Agreement, the payment of principal and interest on the Notes and other
Indebtedness of the Company hereunder is and shall be subordinated in right of
payment to the Senior Indebtedness to the same extent, and according to the same
terms as, the Company's Senior Subordinated Notes. The provisions of Article
Ten of the Indenture (other than Section 10.07 thereof), together with the
associated definitions used therein, as each of the same is in effect on the
date hereof, are hereby incorporated herein such that the subordination terms
set forth therein with respect to the Senior Subordinated Notes shall apply
mutatis mutandis to the Notes issued hereunder. For purposes of such
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incorporation, the terms "Trustee" and "Holder" used in the Indenture shall
refer to the holders of the Notes issued hereunder, and the terms "Note" and
"Notes" used in the Indenture shall refer to the Notes issued hereunder. In
addition to the foregoing and without in any way limiting the foregoing, upon
the occurrence and during the continuance of any Event of Default under and as
defined in the Loan Agreement, then no payment or distribution of any assets of
the Company of any kind or character shall be made by the Company on account of
principal of or interest on the Notes unless and until such Event of Default
shall have been cured or waived or shall have ceased to exist or such Senior
Indebtedness shall have been discharged or paid in full or payment thereof
provided for, after which the Company shall resume making any and all required
payments in respect of the Notes.
3.8. Senior Subordinated Notes. All Indebtedness of the Company evidenced
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by the Notes shall be pari passu in right of payment to the Indebtedness of the
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Company evidenced by the Senior Subordinated Notes.
4. REPRESENTATIONS AND WARRANTIES.
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In order to induce the Investor to enter into this Agreement and to
purchase the Purchased Securities, the Company hereby represents and warrants
that, both before and immediately after giving effect to the Closing:
4.1. Organization and Good Standing. The Company and each of its
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Subsidiaries is duly organized and existing in good standing in its jurisdiction
of
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incorporation, is duly qualified as a foreign corporation and authorized to
do business in all other jurisdictions in which the nature of its business or
property makes such qualification necessary, except where the failure to so
qualify would not have a material adverse effect on the business of the Company
or such Subsidiary, and has the corporate power to own its properties and to
carry on its business as now conducted and as proposed to be conducted.
4.2. Authorization. The execution, delivery and performance by the Company
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of this Agreement and the execution and delivery by the Company of each Related
Agreement to which it is a party, and the issuance and sale by the Company of
the Securities hereunder, (a) are within the Company's corporate power and
authority, (b) have been duly authorized by all necessary corporate proceedings,
and (c) do not conflict with or result in any breach of any provision of or the
creation of any lien upon any of the property of the Company or require any
consent or approval pursuant to the Charter or bylaws of the Company, or any
law, regulation, order, judgment, writ, injunction, license, permit, agreement
or instrument.
4.3. Enforceability. The execution and delivery by the Company of this
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Agreement and each Related Agreement to which it is a party, and the issuance
and sale by the Company of the Securities hereunder, will result in legally
binding obligations of the Company, enforceable against the Company in
accordance with the respective terms and provisions hereof and thereof, except
to the extent that (a) such enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and (b) the availability of the remedy of
specific performance or injunctive or other equitable relief will be subject to
the discretion of the court before which any proceeding therefor may be brought.
4.4. Governmental Approvals. Except as set forth in Schedule 4.4 hereto,
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the execution, delivery and performance by the Company of this Agreement and
each Related Agreement to which it is a party, and the issuance and sale by the
Company of the Securities hereunder, do not require the approval or consent of,
or any filing with, any governmental authority or agency prior to the Closing
other than those already obtained or filed.
4.5. Capitalization.
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(a) Capital Stock. The authorized capital stock of the Company consists
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solely of (i) 20,000 shares of Preferred Stock, $1.00 par value per share (the
"Preferred Stock"), (ii) 12,000,000 shares of Class A Voting Common Stock, $.01
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par value per share (the "Class A Common Stock"), (iii) 12,000,000 shares of
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Class B Non-Voting Common Stock, $.01 par value per share ("Class B Common
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Stock"), and (iv) 1,775,000 shares of Class C Voting Common Stock, $.01 par
value per share (the "Class C Common Stock"). On the Closing Date, after giving
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effect to the transactions contemplated hereby, by the Related Agreements and by
the other securities purchase agreements of even date herewith between the
Company and certain other stockholders, directors and executive officers of the
Company, the Company will have no outstanding capital stock other than 3,000
shares of Series A Preferred Stock, 2,835,462 shares of Class A Common Stock and
1,394,814 shares of Class C Common Stock, all of which will be owned of record
as set forth in Schedule 4.5(a) hereto, and all of which will be duly
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authorized, validly issued, fully paid and nonassessable.
(b) Options, Etc. Except as set forth on Schedule 4.5(b) hereto, the
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Company has no outstanding rights (either preemptive or other) or options to
subscribe for or purchase from the Company and no warrants or other agreements
providing for or requiring the issuance by the Company, of any of its capital
stock or any securities convertible into or exchangeable for its capital stock.
4.6. Small Business Concern. The Company meets the criteria established
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under the Small Business Act for classification as a "small business concern"
within the meaning of the Small Business Act.
4.7. Disclosure. The Company's Annual Report on Form 10-K for the year
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ended December 31, 1996, as of its date of filing with the Commission, and the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as
of its date of filing with the Commission, did not contain any untrue statement
of material fact or omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances in which they were
made, not misleading.
5. INVESTMENT REPRESENTATIONS.
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(a) The Investor represents and warrants to the Company that (i) the
Investor is an "accredited investor" as such term is defined in Rule 501
promulgated under the Securities Act and (ii) the Investor is acquiring the
Purchased Securities for investment, and not with a view to selling or otherwise
distributing the Purchased Securities; provided, however, that the disposition
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of the Investor's property shall at all times be and remain in the Investor's
control, subject to the provisions of Section 8 hereof.
(b) The Investor understands that the Purchased Securities have not been
registered under the Securities Act on the grounds that the offer and sale of
the Purchased Securities to the Investor are exempt from the registration
requirements of the Securities Act under Section 4(2) thereof as a transaction
not involving any public offering of the Purchased Securities. The Investor
understands that the Company's reliance on such exemption is predicated in part
on the representations of the Investor which are contained herein.
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(c) The Investor understands that he/she/it must bear the economic risk of
the investment in the Purchased Securities contemplated hereby for an indefinite
period of time because the Purchased Securities have not been registered under
the Securities Act and, therefore, cannot be sold unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available.
6. CONDITIONS TO PURCHASE.
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The obligation of the Investor to purchase the Purchased Securities
pursuant to this Agreement is subject to compliance by the Company with its
agreements contained herein, and to the satisfaction, on or prior to the Closing
Date, of the following conditions:
6.1. This Agreement; Related Agreements. This Agreement and each of the
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Related Agreements shall have been executed and delivered in a form reasonably
satisfactory to the Investor, shall be in full force and effect and no term or
condition hereof or thereof shall have been amended, modified or waived except
with the prior written consent of the Investor. All covenants, agreements and
conditions contained herein or in the Related Agreements which are to be
performed or complied with on or prior to the Closing Date shall have been
performed or complied with (or waived with the prior written consent of the
Investor) in all material respects.
6.2. Charter Documents; Good Standing Certificates. The Investor shall
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have received from the Company a copy, certified by a duly authorized officer of
the Company to be true and complete as of the Closing Date, of the Charter and
the bylaws of the Company and a certificate, dated not more than ten (10) days
prior to the Closing Date, of the Delaware Secretary of State as to the
Company's good standing in such state.
6.3. Proof of Corporate Action; Approvals. The Investor shall have
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received from the Company copies, certified by a duly authorized officer thereof
to be true and complete as of the Closing Date, of the records of all corporate
action taken to authorize the execution, delivery and performance of this
Agreement or any of the Related Agreements to which the Company is or is to
become a party.
6.4. Incumbency Certificate. The Investor shall have received from the
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Company an incumbency certificate, dated the Closing Date, signed by a duly
authorized officer of the Company, and giving the name and bearing a specimen
signature of each individual who shall be authorized to sign, in the name and on
behalf of the Company, this Agreement and each of the Related Agreements to
which the Company is or is to become a party, and to give notices and to take
other action on the Company's behalf under each of such documents.
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6.5. Representations and Warranties; Officers' Certificates. The
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representations and warranties of the Company contained herein shall be true and
correct in all material respects on and as of the Closing Date; and the Company
and shall have performed and complied with all conditions and agreements
required to be performed or complied with by it hereunder and under the Related
Agreements prior to the Closing; and the Investor shall have received on the
Closing Date a certificate to these effects signed by the President of the
Company.
6.6. Legality; Governmental Authorization. The purchase of the Purchased
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Securities shall not be prohibited by any law, governmental order or regulation,
and shall not subject the Investor to any penalty, special tax, or other onerous
condition. All necessary consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or other Person, with respect to any of
the transactions contemplated by this Agreement or any of the Related
Agreements, shall have been duly obtained or made and shall be in full force and
effect.
6.7. Amendment of Loan Agreement. On or prior to the Closing Date,
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simultaneously with the purchase and sale of the Purchased Securities hereunder,
the Company shall have completed an amendment to the Loan Agreement, in form and
substance satisfactory to the Investor, which shall provide the Company
additional revolving credit availability thereunder in an amount equal to at
least $6,000,000 more than the amount available prior to giving effect to such
amendment and which shall also provide all waivers and consents necessary under
the Loan Agreement to permit the consummation of the transactions contemplated
hereby.
6.8. SBIC Documentation. The Company shall have executed and delivered to
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BBV all documents required by BBV in connection with BBV's investment in the
Company on the Closing Date under the rules and regulations applicable to BBV by
virtue of its status as a "small business investment company".
6.9. Legal Opinion. The Investor shall have received from special counsel
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to the Company an opinion, substantially in the form of Exhibit C hereto.
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6.10. No Litigation. No restraining order or injunction shall prevent the
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transactions contemplated by this Agreement and no action, suit or proceeding
shall be pending or threatened before any court or administrative body in which
it will be, or is, sought to restrain or prohibit or to obtain damages or other
relief in connection with this Agreement or the consummation of the transactions
contemplated hereby.
6.11. Simultaneous Purchase. It shall be a condition concurrent to the
---------------------
Investor's obligation to purchase the Purchased Securities hereunder that the
Company sell Notes in an aggregate principal amount equal to $1,000,000 and
-13-
Warrants for the purchase of Common Stock of the Company for an aggregate
purchase price of $1,000,000 to certain existing stockholders, directors and
executive officers of the Company who are "accredited investors" (as defined in
Section 4 hereof) (including the Investor).
6.12. Application Fee; Closing Fee. The Investor shall have received from
------------------------ ---
the Company payment in full of (i) an application fee in an amount equal to one
percent (1%) of the original principal amount of the Note issued to the Investor
on the Closing Date and (ii) a closing fee in an amount equal to four percent
(4%) of the original principal amount of the Note issued to the Investor on the
Closing Date.
6.13. General. All instruments and legal, governmental, administrative
-------
and corporate proceedings in connection with the transactions contemplated by
this Agreement and the Related Agreements shall be satisfactory in form and
substance to the Investor, and the Investor shall have received copies of all
documents, including, without limitation, records of corporate or other
proceedings, opinions of counsel, consents, licenses, approvals, permits and
orders, which the Investor may have requested in connection therewith.
7. DEFAULTS.
--------
7.1. Events of Default. Subject to Section 3.7 hereof, the holders of the
------ -- -------
Securities will be entitled to exercise the remedies provided by Section 7.2
hereof in accordance with the terms thereof if any one or more of the following
events ("Events of Default") shall occur:
------ -- -------
(a) the Company shall fail to make any payment of interest or
principal on any of the Notes as the same shall become due, whether at
maturity or by acceleration or otherwise; or
(b) the Company or any of its Subsidiaries shall fail to perform or
observe any of the covenants or provisions required to be performed or
observed by it pursuant to (i) the Loan Agreement or any of the documents
executed in connection therewith, in each case as amended, restated,
modified or supplemented and in effect from time to time or (ii) the
Indenture, the Senior Subordinated Notes or any of the documents executed
in connection therewith, in each case as amended, restated, modified or
supplemented and in effect from time to time, and such failure (in the case
of either of the foregoing clauses (i) or (ii)) results in the acceleration
of the Indebtedness under the Loan Agreement or, as the case may be, the
Senior Subordinated Notes; or
-14-
(c) the Company or any of its Subsidiaries shall:
(i) commence a voluntary case under Title 11 of the United States
Code as from time to time in effect, or authorize, by appropriate
proceedings of its board of directors or other governing body, the
commencement of such a voluntary case;
(ii) have filed against it a petition commencing an involuntary
case under said Title 11 and such petition shall not have been
dismissed, bonded, discharged, or stayed within 60 days;
(iii) seek relief as a debtor under any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the
rights of creditors, or consent to or acquiesce in such relief;
(iv) have entered against it an order by a court of competent
jurisdiction (x) finding it to be bankrupt or insolvent, (y) ordering
or approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors, or (z) assuming custody of,
or appointing a receiver or other custodian for, all or a substantial
part of its property;
(v) make a general assignment for the benefit of its creditors,
or appoint or consent to the appointment of a receiver or other
custodian for all or a substantial part of its property.
7.2. Remedies. Subject to Section 3.7 hereof, upon the occurrence and
--------
continuance of any of the Events of Default under Section 7.1 hereof, in each
and every such case, the Majority Holders of the Notes may proceed to protect
and enforce its or their rights by suit in equity, action at law and/or other
appropriate proceedings either for specific performance of any covenant,
provision or condition contained or incorporated by reference in this Agreement
or in the Notes, or in aid of the exercise of any power granted in this
Agreement or in the Notes, and (unless there shall have occurred an Event of
Default under Section 7.1(c) hereof, in which case the unpaid balance of the
Notes shall automatically become due and payable) may by notice to the Company,
declare all or any part of the unpaid principal amount of the Notes then
outstanding to be forthwith due and payable, and thereupon such unpaid principal
amount or part thereof, together with interest accrued thereon and any
applicable prepayment charge and all other sums, if any, payable under this
Agreement or the Notes shall become so due and payable without presentation,
presentment, protest or further demand or notice of any kind, all of which are
hereby expressly waived, and such holder or holders may proceed to enforce
payment of such amount or part thereof in such manner as it or they may elect.
-15-
7.3. Waivers. The Company hereby waives, to the extent not prohibited by
-------
applicable law, (a) all presentments, demands for performance and notices of
nonperformance (except to the extent specifically required by the provisions
hereof), (b) any requirement of diligence or promptness on the part of any
holder of Securities in the enforcement of its rights under the provisions of
this Agreement or any Related Agreement, and (c) any and all notices of every
kind and description which may be required to be given by any statute or rule of
law.
7.4. Course of Dealing. No course of dealing between the Company or any
------ -- -------
of its Subsidiaries on the one hand, and the Investor or any holder of
Securities, on the other hand, shall operate as a waiver of any of the
Investor's or such holder's rights under this Agreement or any Related
Agreement. No delay or omission in exercising any right under this Agreement or
any Related Agreement shall operate as a waiver of such right or any other
right. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any other occasion.
8. RESTRICTIONS ON TRANSFER.
------------ -- --------
8.1. General Restriction. The shares of Common Stock issuable on exercise
------- -----------
of the Warrants shall constitute "Restricted Shares" for purposes of the
Stockholder Agreement and "Registrable Securities" for purposes of the
Registration Rights Agreement. If the Investor is not already a party to the
Stockholder Agreement and the Registration Rights Agreement, on the Closing Date
the Investor shall execute and deliver to the Company an Instrument of Accession
to each of the Stockholder Agreement and the Registration Rights Agreement. The
Securities shall be transferable only upon satisfaction of the conditions set
forth in this Section 8 and any applicable provisions of the Stockholder
Agreement.
8.2. Notice of Transfer. Prior to any transfer of any Securities, the
------ -- --------
holder thereof shall be required to give written notice to the Company
describing in reasonable detail the manner and terms of the proposed transfer
and the identity of the proposed transferee (the "Transfer Notice"), accompanied
-------- ------
by (a) if reasonably determined by the Company to be necessary with respect to
such transfer, an opinion of Xxxxxxx Xxxx LLP addressed to the Company, or other
counsel reasonably acceptable to the Company, that such transfer may be effected
without registration of such Securities under the Securities Act, and (b) the
written agreement of the proposed transferee to be bound by all of the
provisions hereof and, where required by the terms thereof, the Stockholder
Agreement and the Registration Rights Agreement.
8.3. Restrictive Legends. Except as otherwise permitted by this Section 8,
----------- -------
each Security shall bear the legend specified for such Security in Schedule 8.3
-------- ---
hereto.
-16-
8.4. Termination of Restrictions. The restrictions imposed by this Section
----------- -- ------------
8 upon the transferability of any Securities shall terminate as to such
Securities upon the sale of such Securities pursuant to a Public Sale. Whenever
any of such restrictions shall terminate as to any Securities, the holder
thereof shall be entitled to receive from the Company, at the Company's expense,
new securities without such legends.
9. NOTICES.
-------
Any notice provided for in this Agreement or the Securities will be in
writing and will be deemed properly delivered if either personally delivered or
sent by telecopier, overnight courier or mailed certified or registered mail,
return receipt requested, postage prepaid, to the recipient at the address
specified below:
If to the Company, to 000 Xxxxxxxx, Xxxx Xxxxx, Xxxxx 00000, to the
attention of the Chairman, or at such other address as such person shall
have specified by notice actually received by the addressor.
If to the Investor, then to the Investor at the address set forth on the
signature page hereto, or at such other address as the Investor shall have
specified by notice actually received by the addressor.
Any such notice shall be effective (a) if delivered personally or by telecopier
when received, (b) if sent by overnight courier, when receipted for, and (c) if
mailed, five (5) days after being mailed as described above.
10. AMENDMENTS AND WAIVERS.
---------- --- -------
Any term of this Agreement may be amended and the observance of any term of
this Agreement 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 Investor. Any amendment or waiver effected in accordance with
this Section 10 shall be binding upon each holder of any Security sold pursuant
to this Agreement and the Company.
11. WAIVER OF CALL RIGHTS.
---------------------
By its signature hereto, the Company hereby agrees to waive in all respects
the provisions of Section 6 of the Securities Purchase Agreement dated as of May
22, 1997 by and between the Company and the Investor, and the parties hereto
hereby agree that such provisions shall hereafter be deemed to be terminated and
of no effect.
-17-
12. CONSTRUCTION.
------------
The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict
construction will be applied against any party.
13. MISCELLANEOUS.
-------------
This Agreement (including Exhibits and Schedules) and the Related
Agreements set forth the entire understanding of the parties hereto with respect
to the transactions contemplated hereby and supersede any prior written or oral
understandings with respect thereto. The parties hereto acknowledge and agree
that in entering into this Agreement they have not in any way relied upon any
oral or written agreements, statements, promises, information, arrangements,
understandings, representations or warranties, express or implied, not
specifically set forth in this Agreement or the Related Agreements. The
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of any other term or provision hereof. The
headings in this Agreement are for convenience of reference only and shall not
alter or otherwise affect the meaning hereof. THIS AGREEMENT MAY BE EXECUTED IN
ANY NUMBER OF COUNTERPARTS WHICH TOGETHER SHALL CONSTITUTE ONE INSTRUMENT, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC SUBSTANTIVE LAWS OF
THE COMMONWEALTH OF MASSACHUSETTS WITHOUT GIVING EFFECT TO ANY CHOICE OR
CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE
DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER STATE, AND SHALL BIND AND INURE TO THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
-18-
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed as of the date and year
first above written.
THE COMPANY:
--- -------
AMERITRUCK DISTRIBUTION CORP.
By:
----------------------------------
Title:
THE INVESTOR:
--- --------
BANCBOSTON VENTURES INC.
By:
----------------------------------
Title:
Address: 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Purchase Price: $904,000
(the amount the Investor elects
to invest in the Purchased Securities)
List of Schedules
-----------------
Schedule 4.4 Governmental Approvals
Schedule 4.5(a) Ownership of Capital Stock
Schedule 4.5(b) Options, Warrants, etc.
Schedule 8.3 Restrictive Legend
List of Exhibits
----------------
Exhibit A Form of Note
Exhibit B Form of Warrant
Exhibit C Form of Legal Opinion
EXHIBIT A TO
------- -
SECURITIES PURCHASE
AGREEMENT
No. 1
SUBORDINATED NOTE
This Note has not been registered under the Securities Act of 1933, as
amended, and may not be sold or otherwise transferred in the absence of
such registration or an exemption therefrom under such Act or any
applicable state securities laws. Furthermore, this Note may be sold or
otherwise transferred only in compliance with the conditions specified in
the Securities Purchase Agreement referred to hereinafter, a complete and
correct copy of which is available for inspection at the principal office
of the AmeriTruck Distribution Corp. and will be furnished without charge
to the holder of this Note upon written request.
$904,000 November 13, 1997
AMERITRUCK DISTRIBUTION CORP., a Delaware corporation (hereinafter called
the "Company"), for value received, hereby promises to pay to BANCBOSTON
-------
VENTURES INC., a Massachusetts corporation ("Payee"), or its registered assigns,
-----
the entire principal amount of NINE HUNDRED FOUR THOUSAND DOLLARS ($904,000),
payable in the amounts and at the times specified in Section 3 of the Securities
Purchase Agreement (as hereinafter defined) and with a final maturity on April
1, 1998 (the "Maturity Date"), and to pay interest on the unpaid principal
-------- ----
amount hereof from the date hereof until and including the payment in full of
the unpaid principal amount hereof, such interest accruing and compounding at
the rates per annum set forth in Section 3.6(a) or, as applicable, Section
3.6(b), of the Securities Purchase Agreement (as hereinafter defined) (computed
on the basis of actual number of days elapsed and a 360-day year). The Company
hereby promises to pay such interest on the dates specified in the Securities
Purchase Agreement (as hereinafter defined) until the obligation of the Company
with respect to the payment thereof shall be discharged. All payments of
principal and interest hereof shall be made in lawful money of the United States
of America to the account of the holder hereof upon presentation hereof at such
address of the holder hereof as such holder shall have designated to the Company
in writing.
-2-
This Note is one of the Notes of the Company aggregating $1,000,000 in
original authorized principal amount issued pursuant to the Securities Purchase
Agreement, dated as of November 13, 1997 (the "Securities Purchase Agreement"),
---------- -------- ---------
between the Company and the Payee. The holder of this Note is entitled to
enforce the provisions of the Securities Purchase Agreement and to enjoy the
benefits thereof to the extent provided therein and is subject to the
obligations thereunder as a holder of a Note.
The Company shall not be permitted to prepay any portion of this Note
without the written consent of the Majority Holders of the Notes (as defined in
the Securities Purchase Agreement), and the maturity hereof may be accelerated
by the Majority Holders of the Notes (as defined in the Securities Purchase
Agreement) outstanding following an Event of Default (as defined in the
Securities Purchase Agreement), all as provided in the Securities Purchase
Agreement, to which reference is made for the terms and conditions of such
provisions as to prepayment and acceleration. At its option, the holder of this
Note may also convert the principal amount of this Note and all accrued and
unpaid interest thereon as provided in Section 3.4 of the Securities Purchase
Agreement.
Any permitted transfer of this Note is registrable on the note register of
the Company upon presentation at the principal office of the Company accompanied
by a written instrument of transfer in form satisfactory to the Company duly
executed by, or on behalf of, the holder hereof. This Note may also be
exchanged at such office for one or more Notes in any authorized denominations,
as requested by the holder, of a like aggregate unpaid principal amount.
Prior to due presentment for registration of transfer, the Company and any
agent of the Company may treat the person in whose name this Note is registered
as the owner hereof for the purpose of receiving payment of principal and
interest as herein provided and for all other purposes.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE HEREOF, AGREES WITH THE COMPANY THAT
THIS NOTE SHALL BE SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO ALL SENIOR
INDEBTEDNESS (AS DEFINED IN THE SECURITIES PURCHASE AGREEMENT) TO THE EXTENT AND
IN THE MANNER PROVIDED IN THE SECURITIES PURCHASE AGREEMENT.
All indebtedness of the Company evidenced by this Note shall be pari passu
----------
in right of payment to the indebtedness of the Company evidenced by the Senior
Subordinated Notes (as defined in the Securities Purchase Agreement).
-3-
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
AMERITRUCK DISTRIBUTION CORP.
By:
----------------------------------
Name:
Title:
EXHIBIT B TO
------- -
SECURITIES PURCHASE
AGREEMENT
Right to Purchase Shares of Common Stock
of AmeriTruck Distribution Corp.
This Warrant and any shares acquired upon the exercise of this Warrant have
not been registered under the Securities Act of 1933, as amended, and may not be
sold or transferred in the absence of such registration or an exemption
therefrom under such Act or any applicable state securities laws. Furthermore,
this Warrant may be sold or otherwise transferred only in compliance with the
conditions specified in the Securities Purchase Agreement and the Stockholder
Agreement each referred to hereinafter, complete and correct copies of which are
available for inspection at the principal office of AmeriTruck Distribution
Corp. and will be furnished without charge to the holder of this Warrant upon
written request.
No. W-7
AmeriTruck Distribution Corp.
Common Stock Purchase Warrant
AmeriTruck Distribution Corp., a Delaware corporation (the "Company"),
-------
hereby certifies that, for value received, BancBoston Ventures Inc., or its
assigns, is entitled, subject to the terms set forth below, to purchase from the
Company at any time from and after April 1, 1998, subject to the provisions of
Section 2.5 hereof, the Applicable Number (as hereinafter defined) (subject to
adjustment as hereinafter provided) of fully paid and non-assessable shares of
Common Stock (as defined in Section 12 hereof), at an initial purchase price per
share of $2.00 (such price per share as adjusted from time to time as provided
herein is referred to herein as the "Exercise Price"). The number and character
--------------
of such shares of Common Stock and the Exercise Price are subject to adjustment
as provided herein.
1. DEFINITIONS. This Warrant is issued pursuant to the Securities Purchase
-----------
Agreement, dated as of November __, 1997 (the "Securities Purchase Agreement")
-----------------------------
between the Company and the person listed on the signature pages attached
thereto, a copy of which is on file at the principal office of the Company.
Capitalized
-2-
terms used herein without definition shall have the meanings assigned to such
terms in the Securities Purchase Agreement. Certain terms are used in this
Warrant as specifically defined in Section 12 hereof .
2. EXERCISE OF WARRANT.
-------- -- -------
2.1. Exercise. This Warrant may be exercised in full but not in part
--------
prior to its expiration pursuant to Section 2.5 hereof by the holder hereof at
any time from and after April 1, 1998 by surrender of this Warrant, with the
form of subscription at the end hereof duly executed by such holder, to the
Company at its principal office, together with Notes having an aggregate
outstanding principal amount which, together with any accrued and unpaid
interest owed with respect thereto, are equal to the required aggregate Exercise
Price with respect to the shares of Common Stock for which this Warrant is then
being exercised.
2.2. Class of Stock Receivable upon Exercise. The shares of Common Stock
----- -- ----- ---------- ---- --------
receivable upon exercise of this Warrant shall be shares of Class A Common Stock
or Class B Common Stock, as designated upon such exercise by the holder of this
Warrant on the form of subscription at the end hereof duly executed by such
holder.
2.3. Conflict With Other Laws. Any other provisions hereof to the
-------- ---- ----- ----
contrary notwithstanding, no Bank Affiliate (as defined in Section 12) or small
business investment company, as defined in the Small Business Investment Act of
1958, as amended, shall be entitled to exercise the right under this Warrant to
purchase any share or shares of Common Stock if, under any law or under any
regulation, rule or other requirement of any governmental authority at any time
applicable to such Bank Affiliate or small business investment company, (a) as a
result of such purchase, such Bank Affiliate or small business investment
company would own, control or have power to vote a greater quantity of
securities of any kind than the Bank Affiliate or small business investment
company shall be permitted to own, control or have power to vote, or (b) such
purchase would not be permitted. For purposes of this Section 2.3, a written
statement of the Bank Affiliate or small business investment company exercising
this Warrant, delivered upon surrender of the Warrant, to the effect that the
Bank Affiliate or small business investment company is legally entitled to
exercise its right under this Warrant to purchase securities and that such
purchase will not violate the prohibitions set forth in the preceding sentence,
shall be conclusive and binding upon the Company, shall obligate the Company to
deliver certificates representing the shares of Common Stock so purchased in
accordance with the other provisions hereof and shall relieve the Company of any
liability under this Section 2.3.
2.4. Warrant Agent. In the event that a bank or trust company shall have
------- -----
been appointed as trustee for the holder of the Warrant pursuant to Section 6.2
-3-
hereof, such bank or trust company shall have all the powers and duties of a
warrant agent appointed pursuant to Section 13 hereof and shall accept, in its
own name for the account of the Company or such successor entity as may be
entitled thereto, all amounts otherwise payable to the Company or such
successor, as the case may be, on exercise of this Warrant pursuant to this
Section 2.
2.5. Termination. This Warrant shall terminate upon the earliest to occur
-----------
of (i) exercise in full, (ii) November __, 2007 or (iii) the consummation by the
Company of a Qualified Private Placement on or prior to March 31, 1998.
3. STOCKHOLDER AGREEMENT; REGISTRATION RIGHTS AGREEMENT. The shares of Common
--------------------- ------------ ------ ---------
Stock issuable pursuant to this Warrant shall constitute "Restricted Shares" for
purposes of the Stockholder Agreement and "Registrable Securities" for purpose
of the Registration Rights Agreement and the holder of this Warrant shall be
entitled to all of the benefits and shall be subject to all of the obligations
contained in such agreements.
4. DELIVERY OF STOCK CERTIFICATES ON EXERCISE.
-------- -- ----- ------------ -- --------
4.1 Delivery. As soon as practicable after the exercise of this Warrant,
--------
and in any event within ten (10) days thereafter, the Company, at its expense
(including the payment by it of any applicable issue taxes), will cause to be
issued in the name of and delivered to the holder hereof, or as such holder
(upon payment by such holder of any applicable transfer taxes) may direct, a
certificate or certificates for the number of fully paid and non-assessable
shares of Common Stock (or Other Securities) to which such holder shall be
entitled on such exercise, together with any other stock or other securities and
property (including cash, where applicable) to which such holder is entitled
upon such exercise.
4.2. Fractional Shares. In the event that the exercise of this Warrant
---------- ------
results in the issuance of any fractional share of Common Stock, then in such
event the holder of this Warrant shall be entitled to cash equal to the fair
market value of such fractional share as determined in good faith by the
Company's Board of Directors.
5. ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS AND RECLASSIFICATIONS. In case at
---------- --- --------- ------------- --- -----------------
any time or from time to time, the holders of Common Stock shall have received,
or (on or after the record date fixed for the determination of shareholders
eligible to receive) shall have become entitled to receive, without payment
therefor:
(a) other or additional stock or other securities, cash or property by way
of dividend; or
-4-
(b) other or additional (or less) stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate restructuring;
other than additional shares of Common Stock issued as a stock dividend or in a
----- ----
stock-split (adjustments in respect of which are provided for in Section 7
hereof), then and in each such case the holder of this Warrant, on the exercise
hereof (unless previously paid to the Holder hereof) as provided in Section 2
hereof, shall be entitled to receive the amount of stock and other securities,
cash and property which such holder would have received prior to or would have
held on the date of such exercise if on the date hereof he had been the holder
of record of the number of shares of Common Stock called for on the face of this
Warrant and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and all such other or
additional stock and other securities, cash and property receivable by such
holder as aforesaid during such period, giving effect to all further adjustments
called for during such period by Sections 6 and 7 hereof.
6. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
---------- --- -------------- ------------- ------ ----
6.1. Certain Adjustments. In case at any time or from time to time, the
------- -----------
Company shall (i) effect a capital reorganization, reclassification or
recapitalization, (ii) consolidate with or merge into any other Person, or (iii)
transfer all or substantially all of its properties or assets to any other
Person under any plan or arrangement contemplating the dissolution of the
Company, then in each such case, the holder of this Warrant, on the exercise
hereof as provided in Section 2 hereof at any time after the consummation of
such reorganization, recapitalization, consolidation or merger or the effective
date of such dissolution, as the case may be, shall receive, in lieu of the
Common Stock (or Other Securities) issuable on such exercise prior to such
consummation or effective date, the stock and other securities and property
(including cash) to which such holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may be, if such
holder had so exercised this Warrant immediately prior thereto, all subject to
further adjustment thereafter as provided in Sections 5 and 7 hereof.
6.2. Appointment of Trustee for Warrant Holders Upon Dissolution. In the
----------- -- ------- --- ------- ------- ---- -----------
event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall, at its expense, deliver or cause to be delivered the stock
and other securities and property (including cash, where applicable) receivable
by the holders of the Warrant after the effective date of such dissolution
pursuant to this Section 6 to a
-5-
bank or trust company having its principal office in Boston, Massachusetts, as
trustee for the holder or holders of the Warrant.
6.3. Continuation of Terms. Upon any reorganization, consolidation,
------------ -- -----
merger or transfer (and any dissolution following any transfer) referred to in
this Section 6, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in the
case of any such transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 8 hereof.
7. ADJUSTMENTS FOR ISSUANCE OF COMMON STOCK AND AMOUNT OF OUTSTANDING COMMON
----------- --- -------- -- ------ ----- --- ------ -- ----------- ------
STOCK.
-----
7.1. General. (a) If at any time there shall occur any stock split, stock
-------
dividend, reverse stock split or other subdivision of the Company's Common Stock
("Stock Event"), then the number of shares of Common Stock to be received by the
-----------
holder of this Warrant shall be appropriately adjusted such that the proportion
of the number of shares issuable hereunder to the total number of shares of the
Company (on a fully diluted basis) prior to such Stock Event is equal to the
proportion of the number of shares issuable hereunder after such Stock Event to
the total number of shares of the Company (on a fully-diluted basis) after such
Stock Event. In each such Stock Event, the Exercise Price in effect immediately
prior to such Stock Event shall, simultaneously with the happening of such Stock
Event, be adjusted by multiplying the Exercise Price in effect immediately prior
to such Stock Event by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such Stock Event and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately after such Stock Event, and the product so obtained shall be the
Exercise Price in effect immediately after such Stock Event; provided that in no
event will the Exercise Price be less than the par value of the Common Stock.
(b) In case the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them (i) to receive a dividend or other
distribution payable in Common Stock or in Convertible Securities (as
hereinafter defined), or (ii) to subscribe for or purchase Common Stock or
Convertible Securities, then such record date chosen by the Company shall be
deemed to be the date of the issue of the shares of Common Stock issued upon the
declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
-6-
7.2. Other Issuances of Common Stock. (a) If the Company shall at any
----- --------- -- ------ -----
time or from time to time issue or sell any additional shares of Common Stock
without consideration or for a consideration per share less than the Exercise
Price in effect immediately prior to such issuance, then the Exercise Price
shall be adjusted to a price determined by dividing (a) an amount equal to the
sum of (i) the product of (A) the number of shares of Common Stock outstanding
immediately prior to such issue or sale multiplied by (B) the then existing
Exercise Price plus (ii) the consideration, if any, received by the Company upon
such issue or sale by (b) the total number of shares of Common Stock outstanding
immediately after such issue or sale.
(b) In case the Company shall at any time or from time to time in any
manner grant any rights to subscribe for or to purchase any options for the
purchase of Common Stock or any stock or other securities convertible into or
exchangeable for Common Stock (such convertible or exchangeable stock or
securities being herein called "Convertible Securities") and the price per share
----------------------
for which Common Stock is issuable upon the exercise of such rights or options
or upon conversion or exchange of such Convertible Securities (determined by
dividing (a) the sum of (i) the total amount, if any, received or receivable by
the Company as consideration for the granting of such rights or options, plus
(ii) the minimum aggregate amount of additional consideration payable to the
Company upon the exercise of such rights or options, plus, (iii) in the case of
such Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the conversion or exchange thereof, by (b)
the maximum number of shares of Common Stock issuable upon the exercise of such
rights or options or upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such rights or options) shall be less
than the Exercise Price in effect immediately prior to the time of the granting
of such rights or options, then the maximum number of shares of Common Stock
issuable upon the exercise of such rights or options or upon conversion or
exchange of the maximum amount of such Convertible Securities issuable upon the
exercise of such rights or options shall (as of the date of granting of such
rights or options) be deemed to be outstanding and to have been issued for said
price per share as so determined (and accordingly the adjustment provisions of
paragraph (a) above will apply); provided, that no further adjustment of the
--------
Exercise Price shall be made upon the actual issue of such Common Stock or of
such Convertible Securities, upon exercise of such rights or options or upon the
actual issue of such Common Stock or upon conversion or exchange of such
Convertible Securities; and provided, further, that upon the expiration of such
-------- -------
rights or options, if any thereof shall not have been exercised, (x) the number
of shares of Common Stock deemed to be issued and outstanding by reason of the
fact that they were issuable upon the exercise of such rights or options or upon
conversion or exchange of Convertible Securities so issuable, which rights or
options were not exercised, shall no longer be deemed to
-7-
be issued and outstanding, and (y) the Exercise Price shall forthwith be
readjusted and thereafter the Exercise Price shall be the price which it would
have been had adjustment been made on the basis of the issue only of the shares
of Common Stock or of the Convertible Securities actually issued upon the
exercise of such rights or options.
(c) In case the Company shall in any manner issue or sell any Convertible
Securities and the price per share for which Common Stock is issuable upon such
conversion or exchange (determined by dividing (a) the sum of (i) the total
amount received or receivable by the Company as consideration for the issue or
sale of such Convertible Securities, plus (ii) the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the conversion or
exchange thereof, by (b) the maximum number of shares of Common Stock issuable
upon the conversion or exchange of all such Convertible Securities) shall be
less than the Exercise Price in effect immediately prior to the time of such
issue or sale, then the maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall (as of the date
of the issue or sale of such Convertible Securities) be deemed to be outstanding
and to have been issued for said price per share as so determined; provided,
--------
that if any such issue or sale of such Convertible Securities is made upon
exercise of any rights to subscribe for or to purchase or any option to purchase
any such Convertible Securities for which an adjustment of the Exercise Price
has been or is to be made pursuant to other provisions of this Section 7.2 no
further adjustment of the Exercise Price shall be made by reason of such issue
or sale; and provided, further, that upon the termination of the right to
-------- -------
convert or to exchange such Convertible Securities for Common Stock (x) the
number of shares of Common Stock deemed to be issued and outstanding by reason
of the fact that they were issuable upon conversion or exchange of any such
Convertible Securities, which were not so converted or exchanged, shall no
longer be deemed to be issued and outstanding and (y) the Exercise Price shall
be forthwith readjusted and thereafter the Exercise Price shall be the price
which it would have been had adjustment been made on the basis of the issue only
of the number of shares of Common Stock actually issued upon conversion or
exchange of such Convertible Securities.
(d) In case the Company shall declare a dividend or make any other
distribution upon any stock of the Company payable in Common Stock or in
Convertible Securities (other than Stock Events which are provided for in
Section 7.1), the aggregate number of shares of Common Stock issuable in payment
of such dividend or distribution or upon conversion of or in exchange for such
Convertible Securities issuable in payment of such dividend or distribution,
shall, for purposes of determining the Exercise Price, be deemed for the
purposes of this Section 7.2 to have been issued or sold without consideration.
-8-
(e) In case any shares of Common Stock or Convertible Securities or any
rights or options to purchase any such stock or securities shall be issued for
cash, the consideration received therefor shall be deemed to be the amount
received by the Company therefor, before deduction therefrom of any expenses
incurred and any underwriting commissions or concessions paid or allowed by the
Company in connection therewith. In case any shares of Common Stock or
Convertible Securities or any rights or options to purchase any such stock or
securities shall be issued for a consideration other than cash (or a
consideration which includes cash, if such cash constitutes a part of the assets
of a corporation or business substantially all the assets of which are being
received as such consideration), then, for the purposes of this Section 7.2, the
Board of Directors of the Company shall determine in good faith the fair value
of such consideration, and such Common Stock, rights, options or Convertible
Securities shall be deemed to have been issued for an amount of cash equal to
the value so determined by the Board of Directors. In case any shares of Common
Stock or Convertible Securities or any rights or options to purchase any such
stock or securities are issued in connection with the sale of other assets of
the Company for a consideration which includes both, the Board of Directors
shall determine in good faith what part of the consideration so received is to
be deemed to be consideration for the issue of such shares of such Common Stock
or Convertible Securities or rights or options to purchase such stock or
securities and what part is properly allocable to such other assets.
(f) Upon each adjustment of the Exercise Price pursuant to this Section
7.2, the holder of this Warrant shall thereafter (until another such adjustment)
be entitled to purchase upon exercise of this Warrant the number of shares
obtained by multiplying the number of shares of Common Stock which were issuable
upon exercise hereof, immediately prior to such adjustment by the Exercise Price
in effect immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price. The Exercise Price shall be readjusted
in the foregoing manner upon the happening of any successive event or events
described herein in this Section 7.2, and the adjustments or readjustments
required by this Section 7.2 shall be calculated in the order in which the
events giving rise thereto occur.
(g) The provisions of this Section 7.2 shall not apply to (i) any issuance
of additional Common Stock for which an adjustment is provided under Section 7.1
hereof and (ii) any issuance of options pursuant to the Company's 1995 Stock
Option Plan, to the extent such issuance is approved pursuant to Section 6.3 of
the Stockholder Agreement, and any issuance of shares of Common Stock pursuant
to the exercise of such options.
(h) Notwithstanding anything to the contrary contained in this Section 7.2,
the provisions of this Section 7.2 shall not apply to any issuance of additional
-9-
Common Stock after a Qualified Public Offering (as defined in the Stockholder
Agreement).
7.3. Other Securities. In case any Other Securities shall have been
----- ----------
issued, or shall then be subject to issue upon the conversion or exchange of any
stock (or Other Securities) of the Company (or any other issuer of Other
Securities or any other entity referred to in Section 6 hereof) or to
subscription, purchase or other acquisition pursuant to any rights or options
granted by the Company (or such other issuer or entity), the holder hereof shall
be entitled to receive upon exercise hereof such amount of Other Securities (in
lieu of or in addition to Common Stock) as is determined in accordance with the
terms hereof, treating all references to Common Stock herein as references to
Other Securities to the extent applicable, and the computations, adjustments and
readjustments provided for in this Section 7 with respect to the number of
shares of Common Stock issuable upon exercise of this Warrant shall be made as
nearly as possible in the manner so provided and applied to determine the amount
of Other Securities from time to time receivable on the exercise of the Warrant,
so as to provide the holder of the Warrant with the benefits intended by this
Section 7 and the other provisions of this Warrant.
8. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
-- -------- -- ----------
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of the 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 the
Warrant against dilution. Without limiting the generality of the foregoing, the
Company (i) will not increase the par value of any shares of stock receivable on
the exercise of the Warrant above the amount payable therefor on such exercise,
(ii) 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 stock on the exercise of the Warrant from time to time outstanding and (iii)
will not transfer all or substantially all of its properties and assets to any
other entity (corporate or otherwise), or consolidate with or merge into any
other entity or permit any such entity to consolidate with or merge into the
Company (if the Company is not the surviving entity), unless such other entity
shall expressly assume in writing and will be bound by all the terms of this
Warrant.
9. ACCOUNTANTS' CERTIFICATE AS TO ADJUSTMENTS. In each case of any event that
------------ ----------- -- -- -----------
may require any adjustment or readjustment of the Exercise Price and the shares
of Common Stock issuable on the exercise of this Warrant, the Company, at its
expense, will promptly prepare a certificate setting forth such adjustment or
readjustment, or stating the reasons why no adjustment or readjustment is being
made, and showing, in detail, the facts upon which any such
-10-
adjustment or readjustment is based, including a statement of (i) the new
Exercise Price, (ii) the number of shares of the Company's Common Stock then
outstanding on a fully diluted basis, and (iii) the number of shares of Common
Stock to be received upon exercise of this Warrant, in effect immediately prior
to such adjustment or readjustment and as adjusted and readjusted (if required
by Section 7) on account thereof. The Company will forthwith mail a copy of each
such certificate to each holder of a Warrant, and will, on the written request
at any time of any holder of a Warrant, furnish to such holder a like
certificate setting forth the calculations used to determine such adjustment or
readjustment. At its option, the holder of a Warrant may confirm the adjustment
noted on the certificate by causing such adjustment to be computed by an
independent certified public accountant at the expense of the Company.
10. NOTICES OF RECORD DATE. In the event of:
------- -- ------ ----
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right; or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all or
substantially all the assets of the Company to or any consolidation or merger of
the Company with or into any other person; or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of
the Company; or
(d) any proposed issue or grant by the Company of any shares of stock of
any class or any other securities, or any right or option to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities (other than the issue of Common Stock on the exercise of this
Warrant),
then, and in each such event, the Company will mail or cause to be mailed to the
holder of this Warrant a notice specifying (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, (ii)
the date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is
anticipated to take place, and the time, if any is to be fixed, as of which the
holders of record of Common Stock (or Other Securities) shall be entitled to
exchange their shares of Common Stock (or Other Securities) for securities or
other property deliverable on such reorganization, reclassification,
recapitalization, transfer, consolidation, merger,
-11-
dissolution, liquidation or winding-up and (iii) the amount and character of any
stock or other securities, or rights or options with respect thereto, proposed
to be issued or granted, the date of such proposed issue or grant and the
persons or class of persons to whom such proposed issue or grant is to be
offered or made. Such notice shall be mailed at least thirty (30) days prior to
the date specified in such notice on which any such action is to be taken.
11. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANT. The Company will at
----------- -- ----- -------- -- -------- -- -------
all times reserve and keep available, solely for issuance and delivery on the
exercise of the Warrant, a number of shares of Class A Common Stock equal to the
total number of shares of Common Stock from time to time issuable upon exercise
of the Warrant and a number of shares of Class B Common Stock equal to the total
number of shares of Common Stock from time to time issuable upon exercise of the
Warrant, and, from time to time, will take all steps necessary to amend its
Certificate of Incorporation to provide sufficient reserves of shares of Common
Stock issuable upon exercise of the Warrant.
12. DEFINITIONS. As used herein the following terms, unless the context
-----------
otherwise requires, have the following respective meanings:
Applicable Number means, at any time with respect to the holder of this
-----------------
Warrant, the quotient of (a) the sum of the aggregate outstanding principal
amount of the Notes held by such holder plus the amount of accrued and unpaid
interest in respect of such Notes divided by (b) 2.
----------
Bank Affiliate means, any person who is a bank holding company or a
--------------
subsidiary of a bank holding company as defined in the Bank Holding Company Act
of 1956, as amended, or other applicable banking laws of the United States and
the rules and regulations promulgated thereunder.
Company shall mean AmeriTruck Distribution Corp. and any corporation which
-------
shall succeed to or assume the obligations of the Company hereunder.
Common Stock means (i) the Company's Class A Voting Common Stock, $.01 par
------ -----
value per share (the "Class A Common Stock"), (ii) the Company's Class B Non-
--------------------
Voting Common Stock, $.01 par value per share (the "Class B Common Stock"),
--------------------
(iii) the Company's Class C Common Stock, $.01 par value per share (the "Class C
-------
Common Stock"), (iv) any other capital stock of any class or classes (however
------------
designated) of the Company, the holders of which shall have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and (v) any other securities
into which or for which any of the securities described in clauses (i), (ii),
(iii) or (iv) above have
-12-
been converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
Other Securities refers to any stock (other than Common Stock) and other
----- ----------
securities of the Company or any other entity (corporate or otherwise) (i) which
the holder of this Warrant at any time shall be entitled to receive, or shall
have received, on the exercise of this Warrant, in lieu of or in addition to
Common Stock, or (ii) which at any time shall be issuable or shall have been
issued in exchange for or in replacement of Common Stock or Other Securities, in
each case pursuant to Section 5 or 6 hereof.
13. WARRANT AGENT. The Company may, by written notice to the holder of this
------- -----
Warrant, appoint an agent having an office in Boston, Massachusetts for the
purpose of issuing Common Stock on the exercise of this Warrant pursuant to
Section 2 hereof, and exchanging or replacing this Warrant, or any of the
foregoing, and thereafter any such issuance, exchange or replacement, as the
case may be, shall be made at such office by such agent.
14. REMEDIES. The Company stipulates that the remedies at law of the holder of
--------
this Warrant in the event of any default or threatened default by the Company in
the performance of or compliance with any of the terms of this Warrant are not
and will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
15. NOTICES. All notices and other communications from the Company to the
-------
holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, or sent by overnight courier (or sent in the form of a
telex or telecopy) at such address as may have been furnished to the Company in
writing by such holder or, until any such holder furnishes to the Company an
address, then to, and at the address of, the last holder of this Warrant who has
so furnished an address to the Company.
16. MISCELLANEOUS. In case any provision of this Warrant shall be invalid,
-------------
illegal or unenforceable, or partially invalid, illegal or unenforceable, the
provision shall be enforced to the extent, if any, that it may legally be
enforced and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. This Warrant
and any term hereof may be changed, waived, discharged or terminated only by a
statement in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought. This Warrant shall be
governed by and construed in accordance with the domestic substantive laws (and
not the conflict of law rules) of the State of Delaware. The headings in this
Warrant are for purposes of reference
-13-
only, and shall not limit or otherwise affect any of the terms hereof. This
Warrant shall take effect as an instrument under seal.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer and its corporate seal to be impressed hereon and
attested by its Secretary.
Dated as of November __, 1997
AMERITRUCK DISTRIBUTION CORP.
(Corporate Seal) By:
---------------------------
Name:
Title:
Attest:
----------------------
Secretary
FORM OF SUBSCRIPTION
(To be signed only on exercise
of Common Stock Purchase Warrant)
TO: AmeriTruck Distribution Corp.
The undersigned, the holder of the within Common Stock Purchase Warrant,
hereby irrevocably elects to exercise this Common Stock Purchase Warrant for,
and to purchase thereunder ___________ shares of Class __ Common Stock of
AmeriTruck Distribution Corp. and herewith surrenders to the Company Notes
having an aggregate outstanding principal amount which, together with all
accrued and unpaid interest owing with respect thereto, are equal to
$__________, and requests that the certificates for such shares be issued in the
name of, and delivered to ________________, whose address is
_____________________________.
Dated: __________________ ____________________________________
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant)
(Address)
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto ______________________ the right represented by the within Warrant to
purchase _______ shares of Class __ Common Stock of AmeriTruck Distribution
Corp., a Delaware corporation, to which the within Warrant relates, and appoints
____________ attorney to transfer such right on the books of AmeriTruck
Distribution Corp., with full power of substitution in the premises.
[INSERT NAME OF HOLDER]
Dated:___________________ By: _________________________________
Title: ______________________________
[insert address of Holder]
Signed in the presence of:
_______________________________
MANAGEMENT FEE AGREEMENT
---------- --- ---------
This MANAGEMENT FEE AGREEMENT is made as of November __, 1997 (the "Closing
-------
Date"), between AMERITRUCK DISTRIBUTION CORP., a Delaware corporation (the
----
"Company") and FIRST CAPITAL CORPORATION OF BOSTON, a Massachusetts corporation
--------
(the "Manager").
-------
WHEREAS, the Manager is willing to provide certain consulting services to
the Company, and the Company desires to retain the Manager to provide such
management services to the Company.
NOW, THEREFORE, in consideration of the mutual agreements set forth below,
the parties hereto agree as follows:
1. SERVICES. The Manager shall furnish the following consulting services
--------
(the "Services") to the Company:
--------
(a) advice and administrative support in the review and development of the
Company's business policies, including the review and development of
growth and acquisition opportunities;
(b) advice and administrative support in the management of the Company's
credit facilities and other important contractual relationships; and
(c) monitoring and review of the Company's financial performance.
The Services may include the Manager's advice on alternative courses of
action for the Company's consideration. Final decisions on any course of action
shall always remain the responsibility of the Company.
2. CONSULTING FEES. In consideration of the Services, commencing from
---------------
and after March 31, 1998 and solely in the event that the Company shall not have
consummated a Qualified Private Placement (as hereinafter defined) on or prior
to such date, the Company shall pay a fee to the Manager in the amount of
$100,000 per annum (the "Fee"). The Fee shall be payable to the Manager in
---
advance in equal quarterly installments on the first day of each calendar
quarter commencing on April 1, 1998. In addition, the Company shall reimburse
the Manager for all reasonable out-of-pocket expenses incurred in connection
with the provision of the Services. Any such reimbursement of expenses shall be
made promptly after submission of a xxxx therefor by the Manager. As used
herein, a "Qualified Private Placement" shall mean any non-public
---------------------------
-2-
sale of shares of any class of the Company's capital stock yielding gross
proceeds to the Company of at least $10,000,000.
3. TERM. This Agreement shall continue so long as the Manager, or any
----
affiliate of the Manager, owns any shares of capital stock of the Company;
provided, however, that (a) the Manager may terminate its obligations to provide
-------- -------
Services upon 3 months' prior notice to the Company and (b) this Agreement shall
terminate in the event that the Company shall consummate a Qualified Private
Placement on or prior to March 31, 1998 and in any event upon completion by the
Company of a registered public offering of its capital stock.
4. ASSIGNMENT. This Agreement and any rights and obligations hereunder
----------
shall not be assignable or transferable by the Manager, other than to an
affiliate of the Manager, without the prior written consent of the Company, or
by the Company at any time.
5. INDEMNIFICATION. The Company shall indemnify and hold harmless each
---------------
of the Manager and its affiliates, directors, officers, controlling persons
(within the meaning of Section 15 of the Securities Act of 1933 or Section 20(a)
of the Securities Exchange Act of 1934), if any, agents and employees (the
Manager, its affiliates and such other specified persons being collectively
referred to as "Indemnified Persons" and individually as an "Indemnified
----------- ------- -----------
Person") from and against any and all claims, liabilities, losses, damages and
------
expenses incurred by any Indemnified Person (including those arising out of an
Indemnified Person's negligence and fees and disbursements of the respective
Indemnified Person's counsel) which (A) are related to or arise out of (i)
actions taken or omitted to be taken (including any untrue statements made or
any statements omitted to be made) by the Company or (ii) actions taken or
omitted to be taken by an Indemnified Person with the Company's consent or in
conformity with the Company's instructions or the Company's actions or omissions
or (B) are otherwise related to or arise out of the Manager's engagement, and
will reimburse each Indemnified Person for all costs and expenses, including
fees of any Indemnified Person's counsel, as they are incurred, in connection
with investigating, preparing for, defending, or appealing any action, formal or
informal claim, investigation, inquiry or other proceeding, whether or not in
connection with pending or threatened litigation, caused by or arising out of or
in connection with the Manager's acting pursuant to the engagement, whether or
not any Indemnified Person is named as a party thereto and whether or not any
liability results therefrom. The Company will not, however, be responsible for
any claims, liabilities, losses, damages or expenses pursuant to clause (B) of
the preceding sentence that have resulted primarily from the bad faith, gross
negligence or willful misconduct of the Manager. The Company also agrees that
neither the Manager nor any other Indemnified Person shall have any liability to
the Company for or in connection with such engagement except for any such
liability for claims, liabilities, losses, damages, or expenses
-3-
incurred by the Company that have resulted primarily from the bad faith, gross
negligence or willful misconduct of the Manager. The Company further agrees that
it will not, without the prior written consent of the Manager, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not any Indemnified Person is an actual or
potential party to such claim, action, suit or proceeding) unless such
settlement, compromise or consent includes an unconditional release of the
Manager and each other Indemnified Person hereunder from all liability arising
out of such claim, action, suit or proceeding. THE COMPANY HEREBY ACKNOWLEDGES
THAT THE FOREGOING INDEMNITY SHALL BE APPLICABLE TO ALL CLAIMS, LIABILITIES,
LOSSES, DAMAGES OR EXPENSES THAT HAVE RESULTED FROM OR ARE ALLEGED TO HAVE
RESULTED FROM THE ACTIVE OR PASSIVE OR THE SOLE, JOINT OR CONCURRENT ORDINARY
NEGLIGENCE OF THE MANAGER OR ANY OTHER INDEMNIFIED PERSON.
The foregoing right to indemnity shall be in addition to any rights that
the Manager and/or any other Indemnified Person may have at common law or
otherwise and shall remain in full force and effect following the completion or
any termination of the engagement. The Company hereby consents to personal
jurisdiction and to service and venue in any court in which any claim which is
subject to this Agreement is brought against the Manager or any other
Indemnified Person.
It is understood that the Manager and certain other Indemnified Persons may
also be engaged to act for the Company in one or more additional capacities, and
that the terms of any such additional engagements may be embodied in one or more
separate written agreements. This indemnification shall apply to the engagement
specified in the first paragraph hereof as well as to any such additional
engagement(s) (whether written or oral) and any modification of said engagement
or such additional engagement(s) and shall remain in full force and effect
following the completion or termination of said engagement or such additional
engagements.
6. MISCELLANEOUS. This Agreement shall be construed and administered and
-------------
the validity hereof shall be determined in accordance with the laws of the
Commonwealth of Massachusetts without regard to its conflicts-of-laws rules.
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Management Fee
Agreement as of the date first written above.
AMERITRUCK DISTRIBUTION CORP.
By:
--------------------------------------
Name:
Title:
FIRST CAPITAL CORPORATION OF BOSTON
By:
--------------------------------------
Name:
Title:
