As filed with the Securities and Exchange Commission on June 19, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
U-SHIP, INC.
(Exact Name of Registrant as Specified in Its Charter)
UTAH 39-1713181
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
----------------------
5583 West 78th Street
Edina, Minnesota 55439
(Address, Including Zip Code,
of Registrant's Principal Executive Offices)
-----------------------
U-Ship, Inc. 1995 Stock Option Plan
U-Ship, Inc. 1996 Director Stock Option Plan
Warrants issued to Consultant to U-Ship, Inc.
(Full Title of the Plans)
-----------------------
Bruce H. Senske
5583 West 78th Street
Edina, Minnesota 55439
(612) 941-4080
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
-----------------------
Copies to:
Avron L. Gordon, Esq.
Jeffrey L. Cotter, Esq.
Briggs and Morgan
2400 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
(612) 334-8400
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Amount to be Offering Price Per Aggregate Offering Amount of
Title of Securities to be Registered Registered Share (1) Price Registration Fee
------------------------------------ ---------- --------- ----- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.004 par value issuable under:
U-Ship, Inc. 1995 Stock Option Plan 450,000 $ 3.78125 $ 1,701,562.50 $586.75
U-Ship, Inc. 1996 Director Stock Option Plan 100,000 $ 3.78125 $ 378,125.00 $130.39
Warrants issued to Consultant to U-Ship, Inc. 42,857 $ 3.50 $ 149,999.50 $ 51.72
21,875 $ .875 $ 19,140.63 $ 6.60
Total $ 2,248,827.63 $775.46
============== =======
(1) With respect to the 42,857 and the 21,875 shares of Common Stock for
which warrants have been granted, the price is based on the prices at
which the warrants may be exercised. With respect to the remaining
shares of Common Stock, the price is based on the average of the
closing bid and ask prices for such stock on June 14, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
U-Ship, Inc. (the "Company") incorporates herein by reference the
following documents or portions of documents, as of their respective dates as
filed with the United States Securities and Exchange Commission:
(a) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form SB-2, Registration No.
333-01652C.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Unless limited in a corporation's articles of incorporation, Utah
Statutes, Section 16-10a-903, requires indemnification of directors against
reasonable expenses (including attorneys' fees) incurred by such person in
connection with the successful defense of any proceeding to which he or she was
a party because he or she is or was a director of a corporation. Further, Utah
Statutes, Section 16-10a-907 requires indemnification for officers to the same
extent as directors, provided that a corporation may also indemnify employees
and agents, and provides that a corporation may indemnify employees and agents,
and provides that a corporation may indemnify all of such persons to a greater
extent than is statutorily required. The Company's Articles of Incorporation
provide that the Company shall indemnify officers and directors against any and
all expenses arising out of any suit or proceeding to which they are a party
because of their serving the Company as such, except that in relation to matters
as to which any officer or director is adjudged liable for his or her own
negligence or misconduct in the performance of his or her duty. The Company's
Bylaws also provide for certain indemnification of directors, officers,
employees and agents, past or present, of the Company, and persons serving as
such of another corporation or entity at the request of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
5 Opinion of Briggs and Morgan, Professional Association
23(i) Consent of Independent Public Accountants
23(ii) Consent of Briggs and Morgan, Professional Association (contained in
Exhibit 5)
99(i) U-Ship, Inc. 1995 Stock Option Plan (incorporated by reference to
Exhibit 10.21 to Registrant's Registration Statement on Form SB-2,
Registration No. 333-01652C)
99(ii) U-Ship, Inc. 1996 Director Stock Option Plan (incorporated by reference
to Exhibit 10.22 to Registrant's Registration Statement on Form SB-2
Registration No. 333-01652C)
99(iii) Warrants dated June 5, 1995 and June 4, 1996 between the Company and
Michael L. Bochert to purchase 87,500 (pre-February 29, 1996 reverse
stock split) and 42,857 shares of the Company's common stock,
respectively.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement.
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by the foregoing paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Act, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Minneapolis and the State of Minnesota on the
13th day of June, 1996.
U-SHIP, INC.
By
Bruce H. Senske
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Bruce H. Senske, as his true and lawful
attorney-in-fact and agent, with full powers of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the United States Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
/s/ Bruce H. Senske President, Chief Executive June 13, 1996
Bruce H. Senske Officer and Director (Principal
Executive Officer and Principal
Financial and Accounting
Officer)
/s/ Willis K. Drake Director June 19, 1996
Willis K. Drake
/s/ Donald L. Kotula Director June 13, 1996
Donald L. Kotula
/s/ R. Michael Fox Director June 13, 1996
R. Michael Fox
/s/ Gary W. Ramsden Director June 13, 1996
Gary W. Ramsden
/s/ Ronald D. Schmidt Director June 13, 1996
Ronald D. Schmidt
/s/ B. Richard Vogen Director June 13, 1996
B. Richard Vogen
</TABLE>
Exhibit 5
June 19, 1996
U-Ship, Inc.
5583 West 78th Street
Edina, Minnesota 55439
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
In connection with the proposed issuance of 614,732 shares of common
stock, $.004 par value (the "Shares"), of U-Ship, Inc. (the "Company") to be
issued pursuant to the Company's 1995 Stock Option Plan (450,000 shares), its
1996 Director Stock Option Plan (100,000) and an individual agreement with a
consultant to the Company which constitutes an employee benefit plan within the
meaning of Rule 405 of the Securities Act of 1933, as amended (64,732) (the
"Act") (collectively, the "Plans") to be registered under the Act on Form S-8
(the "Registration Statement"), we have examined such documents and have
reviewed such questions of law as we have considered necessary and appropriate
for the purposes of this opinion and, based thereon, we advise you that, in our
opinion the Shares have been duly authorized by the Company and when duly
executed and authenticated, paid for and delivered in accordance with the terms
of the Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
BRIGGS AND MORGAN,
Professional Association
By /s/ Avron L. Gordon
Avron L. Gordon
Exhibit 23(i)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated November 28, 1995,
included in U-Ship, Inc.'s registration statement on Form SB-2, as amended May
29, 1996 and to all references to our firm included in this registration
statement.
Arthur Andersen LLP
Minneapolis, Minnesota,
June 19, 1996
THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL EITHER (I) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME
EFFECTIVE WITH REGARD THERETO, OR (II) THE CORPORATION SHALL HAVE RECEIVED AN
OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION AND ITS COUNSEL THAT AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
STOCK PURCHASE WARRANT
TO PURCHASE 87,500 SHARES OF
COMMON STOCK OF
U-SHIP, INC.
THIS CERTIFIES THAT, for good and valuable consideration, Michael L.
Bochert, or his registered assignees, is entitled to subscribe for and purchase
from U-Ship, Inc., a Utah corporation (the "Company"), at any time after June 5,
1995, to and including June 5, 2002, Eighty-Seven Thousand Five Hundred
(87,500), fully paid and nonassessable shares of the Common Stock of the Company
at the price of $.875 per share (the "Warrant Exercise Price"), subject to the
antidilution provisions of this Warrant. The shares which may be acquired upon
exercise of this Warrant are referred to herein as the "Warrant Shares." As used
herein, the term "Holder" means the initial holder, any party who acquires all
or a part of this Warrant as a registered transferee of the initial holder in
accordance with the terms of this Warrant, or any record holder or holders of
the Warrant Shares issued upon exercise, whether in whole or in part, of the
Warrant; the term "Common Stock" means and includes the Company's presently
authorized voting common stock, $.001 par value per share, and shall also
include any capital stock of any class of the Company hereafter authorized which
shall not be limited to a fixed sum or percentage in respect of the rights of
the holders thereof to participate in dividends or in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution, or winding up of the
Company; and the term "Convertible Securities" means any stock or other
securities convertible into, or exchangeable for, Common Stock.
This Warrant is subject to the following provisions, terms and
conditions:
1. Exercise; Transferability.
(a) The rights represented by this Warrant may be exercised by
the Holder hereof, in whole or in part (but not as to a fractional share of
Common Stock), prior to the expiration of this Warrant by written notice of
exercise (in the form attached hereto) delivered to the Company at the principal
office of the Company and accompanied or preceded by the surrender of this
Warrant and payment of the Warrant Exercise Price for such shares. The Holder
shall then complete and comply with a subscription agreement in the form
requested by the Company.
(b) Neither this Warrant nor the Warrant Shares may be sold,
assigned, hypothecated, or otherwise transferred other than (i) by will or
pursuant to the operation of law, or (ii) pursuant to Section 8 hereof. Further,
this Warrant may not be sold, transferred, assigned, hypothecated or divided
into two or more Warrants of smaller denominations. Other than by operation of
law, there shall be no more than 4 outstanding record holders of this Warrant at
any one time.
2. Payment of Warrant Exercise Price.
Payment of the Warrant Exercise Price may be made by any of the
following, or a combination thereof, at the election of Holder:
(i) cash, certified check, cashiers check or wire transfer; or
(ii) surrender of this Warrant at the principal office of the Company
together with notice of election, in which event the Company shall issue Holder
a number of shares of Common Stock computed using the following formula:
X = Y (A-B)/A
where: X = the number of shares of Common Stock to be issued to
Holder (not to exceed the number of shares set forth on the
cover page of this Warrant, as adjusted pursuant to the
provisions of Section 6 of this Warrant),
Y = the number of shares of Common Stock for which this
Warrant is being exercised,
A = the Market Price of one share of Common Stock (for
purposes of this Section 2(ii), the "Market Price" shall be
defined as the average closing bid price of the Common Stock
for the five trading days prior to the Date of Exercise of
this Warrant (the "Average Closing Bid Price"), as reported by
the National Association of Securities Dealers Automated
Quotation System ("Nasdaq"), or if the Common Stock is not
traded on Nasdaq, the Average Closing Bid Price in the over-
the-counter market; provided, however, that if the Common
Stock is listed on a stock exchange, the Market Price shall be
the Average Closing Bid Price on such exchange), and
B = the Exercise Price.
3. Exchange and Replacement. Subject to Sections 1 and 8 hereof, this
Warrant is exchangeable upon the surrender hereof by the Holder to the Company
at its principal executive office for a new Warrant(s) of like tenor and date
representing in the aggregate the right to purchase the number of Warrant Shares
purchasable hereunder, each of such new Warrant(s) to represent the right to
purchase such number of Warrant Shares (not to exceed the aggregate total number
purchasable hereunder) as shall be designated by the Holder at the time of such
surrender. Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction, or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new Warrant of like tenor, in lieu of this
Warrant; provided, however, that if the initial Holder shall be such Holder, an
agreement of indemnity by such Holder shall be sufficient for all purposes of
this Section 3. This Warrant shall be promptly canceled by the Company upon the
surrender hereof in connection with any exchange or replacement. The Company
shall pay all expenses, taxes (other than stock transfer or income taxes), and
other charges payable in connection with the preparation, execution, and
delivery of Warrant(s) pursuant to this Section 3.
4. Issuance of the Warrant Shares.
(a) The Company agrees that the shares of Common Stock
purchased hereby shall be and are deemed to be issued to the Holder as of the
close of business on the date on which this Warrant shall have been surrendered,
the payment made for such Warrant Shares as aforesaid and the subscription
agreement is returned to the Company. Subject to the provisions of the next
section, certificates for the Warrant Shares so purchased shall be delivered to
the Holder within a reasonable time, not exceeding 15 business days after the
rights represented by this Warrant shall have been so exercised, such payment
surrendered and such agreement returned and, unless this Warrant has expired, a
new Warrant representing the right to purchase the number of Warrant Shares, if
any, with respect to which this Warrant shall not then have been exercised shall
also be delivered to the Holder within such time.
(b) Notwithstanding the foregoing, however, the Company shall
not be required to deliver any certificate for Warrant Shares upon exercise of
this Warrant except in accordance with exemptions from the applicable securities
registration requirements or registrations under applicable securities laws.
Nothing herein, however, shall obligate the Company to effect registrations
under federal or state securities laws. If registrations are not in effect and
if exemptions are not available when the Holder seeks to exercise the Warrant,
the Warrant exercise period will be extended, if need be, to prevent the Warrant
from expiring, until such time as either registrations become effective or
exemptions are available, and the Warrant shall then remain exercisable for a
period of at least 30 calendar days from the date the Company delivers to the
Holder written notice of the availability of such registrations or exemptions.
The Holder agrees to execute such documents and make such representations,
warranties, and agreements as may be required solely to comply with the
exemptions relied upon by the Company, or the registrations made, for the
issuance of the Warrant Shares.
5. Covenants of the Company. The Company covenants and agrees that all
Warrant Shares will, upon issuance, be duly authorized and issued, fully paid,
nonassessable, and free from all taxes (except stock transfer and income taxes),
liens, and charges with respect to the issue thereof. The Company further
covenants and agrees that during the period within which the rights represented
by this Warrant may be exercised, the Company will at all times have authorized
and reserved for the purpose of issue or transfer upon exercise of the
subscription rights evidenced by this Warrant a sufficient number of shares of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
6. Antidilution Adjustment. The provisions of this Warrant are subject
to adjustment as provided in this Section 6.
(a) The Warrant Exercise Price shall be adjusted from time to
time such that in case the Company shall hereafter:
i) pay any dividends on any class of stock of the
Company payable in Common Stock;
ii) subdivide its then outstanding shares of Common
Stock into a greater number of shares; or
iii) combine outstanding shares of Common Stock, by
reclassification or otherwise;
then, in any such event, the Warrant Exercise Price in effect immediately prior
to such event shall (until adjusted again pursuant hereto) be adjusted
immediately after such event to a price (calculated to the nearest full cent)
determined by dividing (a) the number of shares of Common Stock outstanding
immediately prior to such event, multiplied by the then existing Warrant
Exercise Price, by (b) the total number of shares of Common Stock outstanding
immediately after such event (including the maximum number of shares of Common
Stock issuable in respect of any securities convertible into Common Stock), and
the resulting quotient shall be the adjusted Warrant Exercise Price per share.
An adjustment made pursuant to this Subsection shall become effective
immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an adjustment
made pursuant to this Subsection, the Holder of any Warrant thereafter
surrendered for exercise shall become entitled to receive shares of two or more
classes of capital stock or shares of Common Stock and other capital stock of
the Company, the Company's Board of Directors (whose determination shall be
conclusive) shall determine the allocation of the adjusted Warrant Exercise
Price between or among shares of such classes of capital stock or shares of
Common Stock and other capital stock. All calculations under this Subsection
shall be made to the nearest cent or to the nearest 1/100 of a share, as the
case may be. In the event that at any time as a result of an adjustment made
pursuant to this Subsection, the holder of any Warrant thereafter surrendered
for exercise shall become entitled to receive any shares of the Company other
than shares of Common Stock, thereafter the Warrant Exercise Price of such other
shares so receivable upon exercise of any Warrant shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to Common Stock contained in this Section.
(b) Upon each adjustment of the Warrant Exercise Price
pursuant to Section 6(a) above, the Holder of each Warrant shall thereafter
(until another such adjustment) be entitled to purchase at the adjusted Warrant
Exercise Price the number of shares, calculated to the nearest full share,
obtained by multiplying the number of shares specified in such Warrant (as
adjusted as a result of all adjustments in the Warrant Exercise Price in effect
prior to such adjustment) by the Warrant Exercise Price in effect prior to such
adjustment and dividing the product so obtained by the adjusted Warrant Exercise
Price.
(c) In case of any capital reorganization or any
reclassification of the shares of Common Stock of the Company, or any
consolidation or merger to which the Company is a party other than a merger or
consolidation in which the Company is the continuing corporation, or in case of
any sale or conveyance to another corporation of the property of the Company as
an entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), there
shall be no adjustment under Subsection (a) of this Section above but the Holder
of each Warrant then outstanding shall have the right thereafter to convert such
Warrant into the kind and amount of shares of stock and other securities and
property which he would have owned or have been entitled to receive immediately
after such capital reorganization, reclassification, consolidation, merger,
statutory exchange, sale, or conveyance had such Warrant been converted
immediately prior to the effective date of such consolidation, merger, statutory
exchange, sale, or conveyance and in any such case, if necessary, appropriate
adjustment shall be made in the application of the provisions set forth in this
Section with respect to the rights and interests thereafter of any Holders of
the Warrant, to the end that the provisions set forth in this Section shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock and other securities and property thereafter
deliverable on the exercise of the Warrant. The provisions of this Subsection
shall similarly apply to successive consolidations, mergers, statutory
exchanges, sales or conveyances. Prior to consummating any such consolidation,
merger or sale, the successor corporation (if other than the Company) resulting
from such consolidation or merger, or the corporation purchasing such assets,
shall assume by written instrument executed and mailed to the registered Holder
hereof at the last address of such Holder appearing on the books of the Company,
the obligation to deliver to such Holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such Holder may be
entitled to purchase.
(d) Upon any adjustment of the Warrant Exercise Price, then,
and in each such case, the Company shall give written notice thereof, by first
class mail, postage prepaid, addressed to the Holder as shown on the books of
the Company, which notice shall state the Warrant Exercise Price resulting from
such adjustment and the increase or decrease, if any, in the number of shares of
Common Stock purchasable at such price upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
7. No Voting Rights. This Warrant shall not entitle the Holder to any
voting rights or other rights as a shareholder of the Company.
8. Notice of Transfer of Warrant or Resale of the Warrant Shares.
(a) Subject to the sale, assignment, hypothecation, or other
transfer restrictions set forth in Section 1 hereof, the Holder, by acceptance
hereof, agrees to give seven days written notice to the Company before
transferring this Warrant or transferring any Warrant Shares of such Holder's
intention to do so, describing briefly the manner of any proposed transfer. Such
notice may be provided in the form of Warrant Assignment attached hereto.
Promptly upon receiving such written notice, the Company shall present copies
thereof to the Company's counsel. If in the reasonable opinion of such counsel,
the proposed transfer may be effected without registration or qualification
(under any federal or state securities laws), the Company, as promptly as
practicable, shall notify the Holder of such opinion, whereupon the Holder shall
be entitled to transfer this Warrant or to dispose of Warrant Shares received
upon the previous exercise of this Warrant, all in accordance with the terms of
the notice delivered by the Holder to the Company; provided that an appropriate
legend may be endorsed on this Warrant or the certificates for such Warrant
Shares respecting restrictions upon transfer thereof necessary or advisable in
the opinion of counsel and satisfactory to the Company to prevent further
transfer which would be in violation of Section 5 of the Securities Act of 1933,
as amended (the "1933 Act") and applicable state securities laws; and provided
further that the prospective transferee or purchaser shall execute such
documents and make such representations, warranties and agreements as may be
reasonably required solely to comply with the exemptions relied upon by the
Company for the transfer or disposition of the Warrant or Warrant Shares.
(b) If in the reasonable opinion of the counsel referred to in
this Section 8, the proposed transfer or disposition of this Warrant or such
Warrant Shares described in the written notice given pursuant to this Section 8
may not be effected without registration or qualification of this Warrant or
such Warrant Shares, the Company shall promptly give written notice thereof to
the Holder, and the Holder will limit its activities in respect to such as, in
the reasonable opinion of such counsel to the Company, are permitted by law.
9. Fractional Shares. Fractional shares shall not be issued upon the
exercise of this Warrant, but in any case where the Holder would, except for the
provisions of this Section, be entitled under the terms hereof to receive a
fractional share, the Company shall, upon the exercise of this Warrant for the
largest number of whole shares then called for, pay a sum in cash equal to the
sum of (a) the excess, if any, of the Market Price of such fractional share over
the proportional part of the Warrant Exercise Price represented by such
fractional share, plus (b) the proportional part of the Warrant Exercise Price
represented by such fractional share. For purposes of this Section, the term
"Market Price" with respect to shares of Common Stock of any class or series
means the last reported sale price or, if none, the average of the last reported
closing bid and ask prices on any national securities exchange or quoted on the
Nasdaq, or if not listed on a national securities exchange or quoted on Nasdaq,
the average of the last reported closing bid and ask prices as reported by Metro
Data Company, Inc. from quotations by market makers in such Common Stock on the
Minneapolis-St. Paul local over-the-counter sales.
10. Representations of the Holder.
(a) The Holder acknowledges and represents that Holder
understands that this Warrant is illiquid and highly speculative, that Holder is
able to bear the economic risk associated with this Warrant, and that Holder
believes that this Warrant is a suitable investment for Holder.
(b) The Holder acknowledges and represents that Holder has
been given access to full and complete information regarding the Company
(including the opportunity to meet with Company officers and to review such
documents as Holder may have requested in writing) and has utilized such access
to Holder's satisfaction for the purpose of obtaining information about the
Company.
(c) The Holder represents and warrants that this Warrant is
being acquired for Holder's own account and without the intention of reselling
or redistributing the same. Holder further understands and agrees that the
transferability of the Warrant is restricted as described herein.
(d) The Holder hereby represents that he is an "accredited
investor" within the meaning of Rule 501 of Regulation D under the Securities
Act.
IN WITNESS WHEREOF, the undersigned have caused this Warrant to be
signed this 5th day of June, 1995.
HOLDER: U-SHIP, INC.:
/s/ Michael L. Bochert By /s/ Bruce H. Senske
Michael L. Bochert Bruce H. Senske
Its: Chief Executive Officer
NOTICE OF WARRANT EXERCISE
(To be signed only upon exercise of Warrant)
TO: U-SHIP, INC.
The undersigned hereby irrevocably elects to exercise the attached
Warrant to purchase for cash, _____________ of the shares issuable upon the
exercise of such Warrant, and requests that certificates for such shares
(together with a new Warrant to purchase the number of shares, if any, with
respect to which this Warrant is not exercised) shall be issued in the name of,
and be delivered to,
_____________________________
(Print Name)
Please insert social security or other
identifying number of registered holder of
certificate (_____________) _____________________________
(Address)
_____________________________
Date: _____________________, 199_ _____________________________
Signature*
*The signature of the Notice of Exercise of Warrant must correspond to the name
as written upon the face of the Warrant in every particular without alteration
or enlargement or any change whatsoever. When signing on behalf of a
corporation, partnership, trust or other entity, PLEASE indicate your
position(s) and title(s) with such entity.
WARRANT ASSIGNMENT
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ the right represented by the foregoing
warrant to purchase Common Stock of U-SHIP, INC., to which the foregoing warrant
relates and appoints ________________________________ attorney to transfer said
right on the books of U-SHIP, INC., with full power of substitution in the
premises.
The manner of the proposed transfer by the undersigned is described
briefly in the space below.
Dated:______________________________ _____________________________
(Signature)
_____________________________
_____________________________
_____________________________
(Address)
In Presence Of:
_____________________________
THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL EITHER (I) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME
EFFECTIVE WITH REGARD THERETO, OR (II) THE CORPORATION SHALL HAVE RECEIVED AN
OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION AND ITS COUNSEL THAT AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
STOCK PURCHASE WARRANT
TO PURCHASE 42,857 SHARES OF
COMMON STOCK OF
U-SHIP, INC.
THIS CERTIFIES THAT, for good and valuable consideration, Michael L.
Bochert, or his registered assignees, is entitled to subscribe for and purchase
from U-Ship, Inc., a Utah corporation (the "Company"), at any time after June 4,
1996, to and including June 4, 2003, Forty-Two Thousand Eight Hundred
Fifty-Seven (42,857), fully paid and nonassessable shares of the Common Stock of
the Company at the price of $3.50 per share (the "Warrant Exercise Price"),
subject to the antidilution provisions of this Warrant. The shares which may be
acquired upon exercise of this Warrant are referred to herein as the "Warrant
Shares." As used herein, the term "Holder" means the initial holder, any party
who acquires all or a part of this Warrant as a registered transferee of the
initial holder in accordance with the terms of this Warrant, or any record
holder or holders of the Warrant Shares issued upon exercise, whether in whole
or in part, of the Warrant; the term "Common Stock" means and includes the
Company's presently authorized voting common stock, $.001 par value per share,
and shall also include any capital stock of any class of the Company hereafter
authorized which shall not be limited to a fixed sum or percentage in respect of
the rights of the holders thereof to participate in dividends or in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution, or winding up of the Company; and the term "Convertible Securities"
means any stock or other securities convertible into, or exchangeable for,
Common Stock.
This Warrant is subject to the following provisions, terms and
conditions:
1. Exercise; Transferability.
(a) The rights represented by this Warrant may be exercised by
the Holder hereof, in whole or in part (but not as to a fractional share of
Common Stock), prior to the expiration of this Warrant by written notice of
exercise (in the form attached hereto) delivered to the Company at the principal
office of the Company and accompanied or preceded by the surrender of this
Warrant and payment of the Warrant Exercise Price for such shares. The Holder
shall then complete and comply with a subscription agreement in the form
requested by the Company.
(b) Neither this Warrant nor the Warrant Shares may be sold,
assigned, hypothecated, or otherwise transferred other than (i) by will or
pursuant to the operation of law, or (ii) pursuant to Section 8 hereof. Further,
this Warrant may not be sold, transferred, assigned, hypothecated or divided
into two or more Warrants of smaller denominations. Other than by operation of
law, there shall be no more than 4 outstanding record holders of this Warrant at
any one time.
2. Payment of Warrant Exercise Price.
Payment of the Warrant Exercise Price may be made by any of the
following, or a combination thereof, at the election of Holder:
(i) cash, certified check, cashiers check or wire transfer; or
(ii) surrender of this Warrant at the principal office of the Company
together with notice of election, in which event the Company shall issue Holder
a number of shares of Common Stock computed using the following formula:
X = Y (A-B)/A
where: X = the number of shares of Common Stock to be issued to
Holder (not to exceed the number of shares set forth on the
cover page of this Warrant, as adjusted pursuant to the
provisions of Section 6 of this Warrant),
Y = the number of shares of Common Stock for which this
Warrant is being exercised,
A = the Market Price of one share of Common Stock (for
purposes of this Section 2(ii), the "Market Price" shall be
defined as the average closing bid price of the Common Stock
for the five trading days prior to the Date of Exercise of
this Warrant (the "Average Closing Bid Price"), as reported by
the National Association of Securities Dealers Automated
Quotation System ("Nasdaq"), or if the Common Stock is not
traded on Nasdaq, the Average Closing Bid Price in the
over-the-counter market; provided, however, that if the Common
Stock is listed on a stock exchange, the Market Price shall be
the Average Closing Bid Price on such exchange), and
B = the Exercise Price.
3. Exchange and Replacement. Subject to Sections 1 and 8 hereof, this
Warrant is exchangeable upon the surrender hereof by the Holder to the Company
at its principal executive office for a new Warrant(s) of like tenor and date
representing in the aggregate the right to purchase the number of Warrant Shares
purchasable hereunder, each of such new Warrant(s) to represent the right to
purchase such number of Warrant Shares (not to exceed the aggregate total number
purchasable hereunder) as shall be designated by the Holder at the time of such
surrender. Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction, or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new Warrant of like tenor, in lieu of this
Warrant; provided, however, that if the initial Holder shall be such Holder, an
agreement of indemnity by such Holder shall be sufficient for all purposes of
this Section 3. This Warrant shall be promptly canceled by the Company upon the
surrender hereof in connection with any exchange or replacement. The Company
shall pay all expenses, taxes (other than stock transfer or income taxes), and
other charges payable in connection with the preparation, execution, and
delivery of Warrant(s) pursuant to this Section 3.
4. Issuance of the Warrant Shares.
(a) The Company agrees that the shares of Common Stock
purchased hereby shall be and are deemed to be issued to the Holder as of the
close of business on the date on which this Warrant shall have been surrendered,
the payment made for such Warrant Shares as aforesaid and the subscription
agreement is returned to the Company. Subject to the provisions of the next
section, certificates for the Warrant Shares so purchased shall be delivered to
the Holder within a reasonable time, not exceeding 15 business days after the
rights represented by this Warrant shall have been so exercised, such payment
surrendered and such agreement returned and, unless this Warrant has expired, a
new Warrant representing the right to purchase the number of Warrant Shares, if
any, with respect to which this Warrant shall not then have been exercised shall
also be delivered to the Holder within such time.
(b) Notwithstanding the foregoing, however, the Company shall
not be required to deliver any certificate for Warrant Shares upon exercise of
this Warrant except in accordance with exemptions from the applicable securities
registration requirements or registrations under applicable securities laws.
Nothing herein, however, shall obligate the Company to effect registrations
under federal or state securities laws. If registrations are not in effect and
if exemptions are not available when the Holder seeks to exercise the Warrant,
the Warrant exercise period will be extended, if need be, to prevent the Warrant
from expiring, until such time as either registrations become effective or
exemptions are available, and the Warrant shall then remain exercisable for a
period of at least 30 calendar days from the date the Company delivers to the
Holder written notice of the availability of such registrations or exemptions.
The Holder agrees to execute such documents and make such representations,
warranties, and agreements as may be required solely to comply with the
exemptions relied upon by the Company, or the registrations made, for the
issuance of the Warrant Shares.
5. Covenants of the Company. The Company covenants and agrees that all
Warrant Shares will, upon issuance, be duly authorized and issued, fully paid,
nonassessable, and free from all taxes (except stock transfer and income taxes),
liens, and charges with respect to the issue thereof. The Company further
covenants and agrees that during the period within which the rights represented
by this Warrant may be exercised, the Company will at all times have authorized
and reserved for the purpose of issue or transfer upon exercise of the
subscription rights evidenced by this Warrant a sufficient number of shares of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
6. Antidilution Adjustment. The provisions of this Warrant are subject
to adjustment as provided in this Section 6.
(a) The Warrant Exercise Price shall be adjusted from time to
time such that in case the Company shall hereafter:
i) pay any dividends on any class of stock of the
Company payable in Common Stock;
ii) subdivide its then outstanding shares of Common
Stock into a greater number of shares; or
iii) combine outstanding shares of Common Stock, by
reclassification or otherwise;
then, in any such event, the Warrant Exercise Price in effect immediately prior
to such event shall (until adjusted again pursuant hereto) be adjusted
immediately after such event to a price (calculated to the nearest full cent)
determined by dividing (a) the number of shares of Common Stock outstanding
immediately prior to such event, multiplied by the then existing Warrant
Exercise Price, by (b) the total number of shares of Common Stock outstanding
immediately after such event (including the maximum number of shares of Common
Stock issuable in respect of any securities convertible into Common Stock), and
the resulting quotient shall be the adjusted Warrant Exercise Price per share.
An adjustment made pursuant to this Subsection shall become effective
immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an adjustment
made pursuant to this Subsection, the Holder of any Warrant thereafter
surrendered for exercise shall become entitled to receive shares of two or more
classes of capital stock or shares of Common Stock and other capital stock of
the Company, the Company's Board of Directors (whose determination shall be
conclusive) shall determine the allocation of the adjusted Warrant Exercise
Price between or among shares of such classes of capital stock or shares of
Common Stock and other capital stock. All calculations under this Subsection
shall be made to the nearest cent or to the nearest 1/100 of a share, as the
case may be. In the event that at any time as a result of an adjustment made
pursuant to this Subsection, the holder of any Warrant thereafter surrendered
for exercise shall become entitled to receive any shares of the Company other
than shares of Common Stock, thereafter the Warrant Exercise Price of such other
shares so receivable upon exercise of any Warrant shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to Common Stock contained in this Section.
(b) Upon each adjustment of the Warrant Exercise Price
pursuant to Section 6(a) above, the Holder of each Warrant shall thereafter
(until another such adjustment) be entitled to purchase at the adjusted Warrant
Exercise Price the number of shares, calculated to the nearest full share,
obtained by multiplying the number of shares specified in such Warrant (as
adjusted as a result of all adjustments in the Warrant Exercise Price in effect
prior to such adjustment) by the Warrant Exercise Price in effect prior to such
adjustment and dividing the product so obtained by the adjusted Warrant Exercise
Price.
(c) In case of any capital reorganization or any
reclassification of the shares of Common Stock of the Company, or any
consolidation or merger to which the Company is a party other than a merger or
consolidation in which the Company is the continuing corporation, or in case of
any sale or conveyance to another corporation of the property of the Company as
an entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), there
shall be no adjustment under Subsection (a) of this Section above but the Holder
of each Warrant then outstanding shall have the right thereafter to convert such
Warrant into the kind and amount of shares of stock and other securities and
property which he would have owned or have been entitled to receive immediately
after such capital reorganization, reclassification, consolidation, merger,
statutory exchange, sale, or conveyance had such Warrant been converted
immediately prior to the effective date of such consolidation, merger, statutory
exchange, sale, or conveyance and in any such case, if necessary, appropriate
adjustment shall be made in the application of the provisions set forth in this
Section with respect to the rights and interests thereafter of any Holders of
the Warrant, to the end that the provisions set forth in this Section shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock and other securities and property thereafter
deliverable on the exercise of the Warrant. The provisions of this Subsection
shall similarly apply to successive consolidations, mergers, statutory
exchanges, sales or conveyances. Prior to consummating any such consolidation,
merger or sale, the successor corporation (if other than the Company) resulting
from such consolidation or merger, or the corporation purchasing such assets,
shall assume by written instrument executed and mailed to the registered Holder
hereof at the last address of such Holder appearing on the books of the Company,
the obligation to deliver to such Holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such Holder may be
entitled to purchase.
(d) Upon any adjustment of the Warrant Exercise Price, then,
and in each such case, the Company shall give written notice thereof, by first
class mail, postage prepaid, addressed to the Holder as shown on the books of
the Company, which notice shall state the Warrant Exercise Price resulting from
such adjustment and the increase or decrease, if any, in the number of shares of
Common Stock purchasable at such price upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
7. No Voting Rights. This Warrant shall not entitle the Holder to any
voting rights or other rights as a shareholder of the Company.
8. Notice of Transfer of Warrant or Resale of the Warrant Shares.
(a) Subject to the sale, assignment, hypothecation, or other
transfer restrictions set forth in Section 1 hereof, the Holder, by acceptance
hereof, agrees to give seven days written notice to the Company before
transferring this Warrant or transferring any Warrant Shares of such Holder's
intention to do so, describing briefly the manner of any proposed transfer. Such
notice may be provided in the form of Warrant Assignment attached hereto.
Promptly upon receiving such written notice, the Company shall present copies
thereof to the Company's counsel. If in the reasonable opinion of such counsel,
the proposed transfer may be effected without registration or qualification
(under any federal or state securities laws), the Company, as promptly as
practicable, shall notify the Holder of such opinion, whereupon the Holder shall
be entitled to transfer this Warrant or to dispose of Warrant Shares received
upon the previous exercise of this Warrant, all in accordance with the terms of
the notice delivered by the Holder to the Company; provided that an appropriate
legend may be endorsed on this Warrant or the certificates for such Warrant
Shares respecting restrictions upon transfer thereof necessary or advisable in
the opinion of counsel and satisfactory to the Company to prevent further
transfer which would be in violation of Section 5 of the Securities Act of 1933,
as amended (the "1933 Act") and applicable state securities laws; and provided
further that the prospective transferee or purchaser shall execute such
documents and make such representations, warranties and agreements as may be
reasonably required solely to comply with the exemptions relied upon by the
Company for the transfer or disposition of the Warrant or Warrant Shares.
(b) If in the reasonable opinion of the counsel referred to in
this Section 8, the proposed transfer or disposition of this Warrant or such
Warrant Shares described in the written notice given pursuant to this Section 8
may not be effected without registration or qualification of this Warrant or
such Warrant Shares, the Company shall promptly give written notice thereof to
the Holder, and the Holder will limit its activities in respect to such as, in
the reasonable opinion of such counsel to the Company, are permitted by law.
9. Fractional Shares. Fractional shares shall not be issued upon the
exercise of this Warrant, but in any case where the Holder would, except for the
provisions of this Section, be entitled under the terms hereof to receive a
fractional share, the Company shall, upon the exercise of this Warrant for the
largest number of whole shares then called for, pay a sum in cash equal to the
sum of (a) the excess, if any, of the Market Price of such fractional share over
the proportional part of the Warrant Exercise Price represented by such
fractional share, plus (b) the proportional part of the Warrant Exercise Price
represented by such fractional share. For purposes of this Section, the term
"Market Price" with respect to shares of Common Stock of any class or series
means the last reported sale price or, if none, the average of the last reported
closing bid and ask prices on any national securities exchange or quoted on the
Nasdaq, or if not listed on a national securities exchange or quoted on Nasdaq,
the average of the last reported closing bid and ask prices as reported by Metro
Data Company, Inc. from quotations by market makers in such Common Stock on the
Minneapolis-St. Paul local over-the-counter sales.
10. Representations of the Holder.
(a) The Holder acknowledges and represents that Holder
understands that this Warrant is illiquid and highly speculative, that Holder is
able to bear the economic risk associated with this Warrant, and that Holder
believes that this Warrant is a suitable investment for Holder.
(b) The Holder acknowledges and represents that Holder has
been given access to full and complete information regarding the Company
(including the opportunity to meet with Company officers and to review such
documents as Holder may have requested in writing) and has utilized such access
to Holder's satisfaction for the purpose of obtaining information about the
Company.
(c) The Holder represents and warrants that this Warrant is
being acquired for Holder's own account and without the intention of reselling
or redistributing the same. Holder further understands and agrees that the
transferability of the Warrant is restricted as described herein.
(d) The Holder hereby represents that he is an "accredited
investor" within the meaning of Rule 501 of Regulation D under the Securities
Act.
IN WITNESS WHEREOF, the undersigned have caused this Warrant to be
signed this 4th day of June, 1996.
HOLDER: U-SHIP, INC.:
/s/ Michael L. Bochert By /s/ Bruce H. Senske
Michael L. Bochert Bruce H. Senske
Its: Chief Executive Officer
NOTICE OF WARRANT EXERCISE
(To be signed only upon exercise of Warrant)
TO: U-SHIP, INC.
The undersigned hereby irrevocably elects to exercise the attached
Warrant to purchase for cash, _____________ of the shares issuable upon the
exercise of such Warrant, and requests that certificates for such shares
(together with a new Warrant to purchase the number of shares, if any, with
respect to which this Warrant is not exercised) shall be issued in the name of,
and be delivered to,
_____________________________
(Print Name)
Please insert social security or other
identifying number of registered holder of
certificate (_____________) _____________________________
(Address)
_____________________________
Date: _____________________, 199_ _____________________________
Signature*
*The signature of the Notice of Exercise of Warrant must correspond to the name
as written upon the face of the Warrant in every particular without alteration
or enlargement or any change whatsoever. When signing on behalf of a
corporation, partnership, trust or other entity, PLEASE indicate your
position(s) and title(s) with such entity.
WARRANT ASSIGNMENT
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ the right represented by the foregoing
warrant to purchase Common Stock of U-SHIP, INC., to which the foregoing warrant
relates and appoints ________________________________ attorney to transfer said
right on the books of U-SHIP, INC., with full power of substitution in the
premises.
The manner of the proposed transfer by the undersigned is described
briefly in the space below.
Dated:______________________________
Dated:______________________________ _____________________________
(Signature)
_____________________________
_____________________________
_____________________________
(Address)
In Presence Of:
_____________________________
