SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM 8-K
CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): November 30, 1998
TARGET LOGISTICS, INC.
(Exact name of Registrant as specified in charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
0-29754
(Commission File Number)
11-3309110
(I.R.S. Employer Identification
Number)
112 East 25th Street
Baltimore, Maryland 21218
(410) 338-0127
(Address, including zip code and telephone number, including area code, of
Registrant's principal executive offices)
AMERTRANZ WORLDWIDE HOLDING CORP.
(Former name or former address of Registrant, if changed since last report)
<PAGE>
INFORMATION TO BE INCLUDED IN THE REPORT
Item 5. Other Events.
On November 30, 1998, at the Annual Meeting of Shareholders of
Amertranz Worldwide Holding Corp. (the "Company"), a majority of the
shareholders approved a proposal to change the name of the Company to Target
Logisitcs, Inc. A copy of the Certificate of Amendment, as filed with the
Delaware Secretary of State on November 30, 1998, is attached to this Current
Report on Form 8-K as Exhibit 3.1.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
The following exhibits are filed herewith:
Exhibit No.
3.1 Certificate of Incorporation of Registrant, as amended.
- 1 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TARGET LOGISTICS, INC.
Date: December 21, 1998 By: /s/ Stuart Hettleman
-------------------------------
Stuart Hettleman, President
C75919.634
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- -------------------------------
3.1 Certificate of Incorporation of Registrant, as amended
<PAGE>
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
AMERTRANZ WORLDWIDE HOLDING CORP.
The undersigned, being of legal age, in order to form a
corporation under and pursuant to the laws of the State of Delaware, does hereby
set forth as follows:
FIRST: The name of the corporation is
AMERTRANZ WORLDWIDE HOLDING CORP.
SECOND: The address of the initial registered and principal office of
this corporation in this state is c/o United Corporate Services, Inc., 15 East
North Street, in the city of Dover, County of Kent, State of Delaware 19901 and
the name of the registered agent at said address is United Corporate Services,
Inc.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the corporation laws
of the State of Delaware.
FOURTH: The corporation shall be authorized to issue the following
shares:
Class Number of Shares Par Value
----- ---------------- ---------
COMMON 15,000,000 $ .01
FIFTH: The name and address of the incorporator are as follows:
NAME ADDRESS
---- -------
Ray A. Barr 10 Bank Street
White Plains, New fork 10606
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation, and for further
definition, limitation and regulation of the powers of the corporation and of
its directors and stockholders:
(1) The number of directors of the corporation shall be such as from
time to time shall be fixed by, or in the manner provided in the by-laws.
Election of directors need not be by ballot unless the By-Laws so provide.
(2) The Board of Directors shall have power without the assent or vote
of the stockholders:
(a) To make, alter, amend, change, add to or repeal the By-Laws
of the corporation; to fix and vary the amount to be reserved for any proper
purpose; to authorize and cause to be executed mortgages and liens upon all or
any part of the property of the corporation; to determine the use and
disposition of any surplus or net profits; and to fix the times for the
declaration and payment of dividends.
<PAGE>
(b) To determine from time to time whether, and to what times and
places, and under what conditions the accounts and books of the corporation
(other than the stock ledger) or any of them, shall be open to the inspection of
the stockholders.
(3) The directors in their discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders, at any
meeting of the stockholders called for the purpose of considering any such act
or contract, or through a written consent in lieu of a meeting in accordance
with the requirements of the General Corporation Law of Delaware as amended from
time to time, and any contract or act that shall be so approved or be 50
ratified by the vote of the holders of a majority of the stock of the
corporation which is represented in person or by proxy at such meeting, (or by
written consent whether received directly or through a proxy) and entitled to
vote thereon (provided that a lawful quorum of stockholders be there represented
in person or by proxy) shall be as valid and as binding upon the corporation and
upon all the stockholders as though it had been approved, ratified, or consented
to by every stockholder of the corporation, whether or not the contract or act
would otherwise be open to legal attack because of directors' interest, or for
any other reason.
(4) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the corporation; subject, nevertheless, to the provisions of the
statutes of Delaware, of this certificate, and to any by-laws from time to time
made by the stockholders; provided, however, that no by-laws so made shall
invalidate any prior act of the directors which would have been valid if such
by-law had not been made.
SEVENTH: No director shall be liable to the corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except with respect to (1) a breach of the director's duty of loyalty to the
corporation or its stockholders, (2) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3)
liability under Section 174 of the Delaware General Corporation Law or (4) a
transaction from which the director derived an improper personal benefit, it
being the intention of the foregoing provision to eliminate the liability of the
corporation's directors to the corporation or its stockholders to the fullest
extent permitted by Section 102(b)(7) of the Delaware General Corporation Law,
as amended from time to time. The corporation shall indemnify to the fullest
extent permitted by Sections 102(b)(7) and 145 of the Delaware General
Corporation Law, as amended from time to time, each person that such Sections
grant the corporation the power to indemnify.
EIGHTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 Title 8 of the Delaware
Code order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in number
representing three-fourths (3/4) in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case way be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
<PAGE>
NINTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
IN WITNESS WHEREOF, the undersigned hereby executes this document and
affirms that the facts set forth herein are true under the penalties of perjury
this twelfth day of January, 1996.
S/RAY A. BARR
----------------------
Ray A. Barr, Incorporator
<PAGE>
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
AMERTRANZ WORLDWIDE HOLDING CORP.
The undersigned, being the President of Amertranz Worldwide Holding
Corp., hereby certifies that:
FIRST: The name of the Corporation is Amertranz Worldwide Holding
Corp.
SECOND: The original Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on January 16,
1996.
THIRD: ARTICLE FOURTH of said Certificate of Incorporation is hereby
amended in its entirety to read as follows:
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 17,500,000
shares consisting of (1) 2,500,000 shares of preferred
stock, $10.00 par value (the "Preferred Stock"); and (2)
15,000,000 shares of common stock, $.01 par value (the
"Common Stock").
The Board of Directors shall have authority to establish the classes,
designations, powers, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations and restrictions thereof in
respect of the Preferred Stock and the Common Stock.
FOURTH: The foregoing amendment has been duly advised and adopted by
the Board of Directors of the Corporation and approved by the stockholders of
the Corporation in accordance with the applicable provisions of Section 242 of
the General Corporation Law of the State of Delaware by written consent of the
stockholders of the Corporation given in accordance with the provisions of
Section 228 of the General Corporation Law of the State of Delaware. Prompt
written notice of adoption of the foregoing amendment has been given to all
stockholders who have not consented to such adoption in writing in accordance
with the provisions of Section 228(d) of the General Corporation Law of
Delaware.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this
13th day of June, 1996.
ATTEST: /s/ Stuart Hettleman
--------------------
President
/s/ Michael Barsa
- -----------------
Secretary
<PAGE>
CERTIFICATE OF DESIGNATION
AMERTRANZ WORLDWIDE HOLDING CORP.
The undersigned, being the President of Amertranz Worldwide Holding
Corp., hereby certifies pursuant to Section 151 (g) of the General Corporation
Law of Delaware:
The Board of Directors of the Corporation have by resolution duly
adopted, approved the powers, designations, preferences and relative,
participating optional or other rights of the shares of Preferred Stock, $10.00
par value, of the Corporation as follows:
Par Value. The shares of Class A Preferred Stock shall have a par or
stated value of $10.00 per share.
Dividends: Holders of Class A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of legally
available funds, dividends at an annual rate of $1.00 per share, payable
semi-annually in arrears on June 30 and December 31 of each year, in cash or in
shares of Class A Preferred Stock at the rate of $10.00 per share. Dividends
shall accrue and are cumulative from the most recent date to which dividends
have been paid. The Class A Preferred Stock shall have priority as to dividends
over the Common stock and all other series or classes of the Company's stock
that rank junior to the Class A Preferred Stock ("Junior Dividend Stock"). No
dividend (other than dividends payable solely in Common Stock, Junior Dividend
Stock or warrants or other rights to acquire Common Stock or Junior Dividend
Stock) may be paid or set apart for payment on, and no purchase, redemption or
other acquisition may be made by the Company of, the Common Stock or Junior
Dividend Stock unless all accrued and unpaid dividends on the Class A Preferred
Stock, including the full dividend for the then-current semi-annual dividend
period, shall have been paid.
Preference on Liquidation. In a case of the voluntary or involuntary
liquidation, dissolution or winding up of the Company, holders of shares of
Class A Preferred Stock then outstanding shall be entitled to be paid out of the
assets of the Company available for distribution to stockholders an amount in
cash equal to $10.00 per share, plus an amount equal to any accrued and unpaid
dividends, whether or not declared, to the payment date, before any payment or
distribution shall be made to the holders of Common Stock or any other series or
class of stock that ranks junior as to liquidation rights to the Class A
Preferred Stock.
Voting. The holders of Class A Preferred Stock shall have no voting
rights except as required by law. In exercising any voting rights, each
outstanding share of Class A Preferred Stock shall be entitled to one vote.
Conversion Rights. Each holder of Class A Preferred Stock shall have
the right, at the holder's option, to convert any or all shares into Common
Stock at any time at a conversion price (subject to adjustment as described
below) of the lower of (i) the price per share of Common Stock in the Initial
Public Offering of the Corporation's Common Stock, or (ii) 80% of the average of
the closing bid and asked price per share of Common Stock on the day prior to
the conversion date.
The Conversion price is subject to adjustment in certain events,
including (i) the payment of a dividend on any class of the Company's capital
stock in shares of Common Stock or any other securities issued by the Company or
any of its subsidiaries; (ii) subdivisions or combinations of the Common Stock;
(iii) the issuance to all holders of Common Stock of rights or warrants to
subscribe for or purchase Common Stock or securities convertible into or
exchangeable for Common Stock, for a consideration per share of Common Stock
less than the current market price per share of the date of issuance of the
securities.
<PAGE>
Registration Rights. At the request of a holder of shares of Class A
Preferred Stock, the Company shall register for resale under the Securities Act
of 1933, as amended ("Securities Act") any shares of Common Stock issued upon
conversion of shares of the Class A Preferred Stock.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this
18th day of June, 1996.
/s/ Stuart Hettleman
---------------------------
Stuart Hettleman, President
Attest:
/s/ Michael Barsa
- --------------------------
Michael Barsa
<PAGE>
CERTIFICATE OF CORRECTION FILED TO CORRECT
A CERTAIN ERROR IN THE CERTIFICATE OF DESIGNATION
OF AMERTRANZ WORLDWIDE HOLDING CORP.
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON JULY 1, 1996
Amertranz Worldwide Holding Corp., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware does
hereby certify:
1. The name of the corporation is Amertranz Worldwide Holding Corp.
2. That a Certificate of Designation was filed with the Secretary of
State of Delaware on July 1, 1996, and that said Certificate requires
correction as permitted by Section 103 of the General Corporation Law
of the State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected is as
follows:
The number of shares designated as Class A Preferred Stock was
omitted. The Certificate is corrected by inserting a paragraph
immediately after the second paragraph and immediately preceding the
paragraph entitled "Par Value" to read as follows:
"Class A Preferred Stock. Five Hundred Thousand (500,000)
shares of the Preferred Stock authorized in the Certificate
of Incorporation are to be designated as Class A Preferred
Stock."
IN WITNESS WHEREOF, said Amertranz Worldwide Holding Corp. has caused
this Certificate to be signed by Stuart Hettleman, its President, this 10th day
of June, 1997.
AMERTRANZ WORLDWIDE HOLDING CORP.
By: /s/ Stuart Hettleman
-----------------------------
<PAGE>
CERTIFICATE OF DESIGNATION
AMERTRANZ WORLDWIDE HOLDING CORP.
The undersigned, being the President of Amertranz Worldwide Holding
Corp. (the "Company"), hereby certifies, pursuant to Section 151(g) of the
General Corporation Law of Delaware, that the Board of Directors of the
Corporation has duly adopted and approved the powers, designations, preferences
and relative, participating optional or other rights of the shares of Preferred
Stock, $10.00 par value per share, of the Corporation as follows:
RESOLVED, that the following is hereby adopted and approved:
Class B Preferred Stock: Twenty-five thousand (25,000) shares of the
Preferred Stock authorized in the Certificate of Incorporation are to be
designated as Class B Preferred Stock.
Par value: The shares of Class B Preferred Stock shall have a par or
stated value of $10.00 per share.
Dividends: No dividend will be paid or declared and set aside by the
Board of Directors for holders of Class B Preferred Stock.
No Preference on Liquidation: In the event of the voluntary or
involuntary liquidation, dissolution or winding up of the Company, holders of
shares of Class B Preferred Stock then outstanding shall not be entitled to be
paid out of the assets of the Company before any payment or distribution is made
to the holders of Common Stock or any other series or class of stock.
Voting: The holders of Class B Preferred Stock shall have no voting
rights except as required by law. In exercising any voting rights, each
outstanding share of Class B Preferred Stock shall be entitled to one vote.
Conversion Rights: Each holder of Class B Preferred Stock shall have
the right to convert any or all shares of Class B Preferred Stock into shares of
fully paid and nonassessable Common Stock, at the conversion rate of one (1)
share of Class B Preferred Stock for ten (10) shares of Common Stock. In the
event of any change in the outstanding shares of Common Stock by reason of any
share dividend or split, recapitalization or other similar corporate change, the
conversion rate shall be accordingly adjusted. The right of such conversion may
be exercised at the option of the holder of shares of Class B Preferred Stock at
any time and from time to time following the first anniversary of the merger of
Consolidated Air Services,Inc., an Arizona corporation, with and into the
Company pursuant to the Agreement of Merger dated as of September 30, 1996.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this
8th of October, 1996.
/s/ Stuart Hettleman
-----------------------------
Stuart Hettleman, President
ATTEST:
/s/ Michael Barsa
- --------------------------------
<PAGE>
CERTIFICATE OF MERGER
OF
CONSOLIDATED AIR SERVICES, INC.
INTO
AMERTRANZ WORLDWIDE HOLDING CORP.
The undersigned corporation does hereby certify:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
Name State of Incorporation
---- -----------------------
Consolidated Air Services, Inc. Arizona
Amertranz Worldwide Holding Corp. Delaware
SECOND: That an Agreement of Merger between the parties to the merger
has been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of section 252 of
the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation of the merger is
Amertranz Worldwide Holding Corp., a Delaware corporation.
FOURTH: That the Certificate of Incorporation of Amertranz Worldwide
Holding Corp., a Delaware corporation which is surviving the merger, shall be
the Certificate of Incorporation of the surviving corporation.
FIFTH: That the executed Agreement of Merger is on file at the
principal place of business of the surviving corporation, the address of which
is 2001 Marcus Avenue, Lake Success, New York 11042.
SIXTH: That a copy of the Agreement of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of any
constituent corporation.
SEVENTH: The authorized capital stock of each foreign corporation
which is a party to the merger is as follows: Number Par Value Corporation Class
of Shares per Share Consolidated Air Services, Inc. Common 100,000 $1.00
EIGHTH: That this Certificate of Merger shall be effective upon filing
with the Secretary of State of the State of Delaware.
Dated: October 10, 1996
AMERTRANZ WORLDWIDE HOLDING CORP.
By: /s/ Stuart Hettleman
----------------------------------
Stuart Hettleman, President
<PAGE>
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS
of
CLASS C 10% CONVERTIBLE PREFERRED STOCK
of
AMERTRANZ WORLDWIDE HOLDING CORP.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
Amertranz Worldwide Holding Corp., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies that, pursuant to the authority vested in the Board of Directors of
the Corporation (the "Board of Directors") under its Certificate of
Incorporation, and in accordance with Section 151 of the Delaware General
Corporation Law, the Board of Directors has adopted the following resolution:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation in accordance with the provisions of its
Certificate of Incorporation, the Board of Directors does hereby create,
authorize and provide for the issuance of a series of the Corporation's
preferred stock, par value $10.00 per share, and hereby states the designation
and number of shares, and fixes the relative rights, preferences, privileges,
powers and restrictions thereof as follows:
Class C 10% Convertible Preferred Stock:
1. Designation and Amount. The designation of this series, which consists
of 400,000 shares of Preferred Stock, is the Class C 10% Convertible Preferred
Stock (the "Preferred Stock") and the stated value shall be Ten Dollars ($10.00)
per share (the "Stated Value").
2. (a) Rank. All shares of the Preferred Stock shall rank senior to the
Corporation's common stock, par value $0.01 per share (the "Common Stock"), and
to any other class of capital stock or series of preferred stock now existing or
established hereafter by the Board of Directors (collectively, the "Junior
Securities"), as to the distribution of assets upon liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, and with
respect to the payment of dividends. The Corporation shall not issue any class
or series of capital stock which ranks pari passu with the Class C Preferred
Stock; provided, however, that the Corporation shall have the right to create a
series of Class D preferred stock ("Class D Preferred Stock"), which shall rank
pari passu with the Preferred Stock, for issuance to certain holders of the
Corporation's indebtedness existing as of May 1, 1997 only in the event any or
all of such indebtedness is converted into Class D Preferred Stock in accordance
with the terms of an agreement between such holders and the Corporation dated as
of May 1, 1997. Such Class D Preferred Stock, if created, shall have the same
terms as the Corporation's existing Class A Preferred Stock, except that the
Class D Preferred Stock will rank pari passu with the Preferred Stock.
3. Dividends.
(a) The Corporation shall pay out of funds legally available therefor
a fixed dividend on each outstanding share of Preferred Stock at a rate per
annum equal to 10.0% of the Stated Value thereof. Dividends shall be payable in
arrears quarterly as of March 31, June 30, September 30 and December 31 of each
year (each a "Dividend Payment Date") to the holders of record of the Preferred
Stock on the preceding March 15, June 15, September 15 and December 15 (each a
"Regular Dividend Date"). Dividends shall also be immediately payable upon (i)
conversion of the Preferred Stock into shares of Common Stock in accordance with
Section 5(a) (such dividends accruing through the date of conversion), (ii) the
occurrence of a Liquidation Event as provided in Section 4(a) (such dividends
accruing through the date of distribution of the Company's assets) and (iii) the
redemption of the Preferred Stock as provided in Section 6 (such dividends
accruing through the date of redemption). Dividends accruing for any period less
than a full dividend period will be computed on the basis of a 360-day year
comprised of twelve 30-day months. Dividends shall be payable on a cumulative
basis, such that any unpaid dividends shall accumulate and the arrearage shall
be paid in full prior to any dividends being paid to holders of Junior
Securities.
<PAGE>
(b) 1) Except in connection with the payment of dividends upon a
Liquidation Event or redemption of the Preferred Stock, any dividend on the
Preferred Stock pursuant to Section 3(a) shall be, at the option of the
Corporation, payable either (i) in cash or (ii) if and only if a registration
statement registering the issuance by the Company of shares of Common Stock as
dividends under the Securities Act of 1933 is current and effective through the
issuance of a number of shares (rounded to the nearest whole share) of Common
Stock (the "Dividend Shares") equal to the dividend amount divided by the
average last sale price of a share of Common Stock on the five trading days
ending two business days prior to each Dividend Payment Date.
(c) In the event that full dividends are not paid or made available to
the holders of all outstanding shares of Preferred Stock and of any Class D
Preferred Stock and funds available for payment of dividends shall be
insufficient to permit payment in full to holders of all such stock of the full
preferential amounts to which they are then entitled, then the entire amount
available for payment of dividends shall be distributed ratably among all such
holders of Preferred Stock and of any Class D Preferred Stock in proportion to
the full amount to which they would otherwise be respectively entitled.
4. Liquidation Preference.
(a) If the Corporation shall commence a voluntary case under the
Federal bankruptcy laws or any other applicable Federal or State bankruptcy,
insolvency or similar law, or consent to the entry of an order for relief in an
involuntary case under any law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of the
Corporation or of any substantial part of its property, or make an assignment
for the benefit of its creditors, or admit in writing its inability to pay its
debts generally as they become due, or if a decree or order for relief in
respect of the Corporation shall be entered by a court having jurisdiction in
the premises in an involuntary case under the Federal bankruptcy laws or any
other applicable Federal or State bankruptcy, insolvency or similar law
resulting in the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Corporation or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and any such decree or order shall be unstayed and in effect for a
period of 60 consecutive days and, on account of any such event, the Corporation
shall liquidate, dissolve or wind up, or if the Corporation shall otherwise
liquidate, dissolve or wind up (any and all of the foregoing being referred to
as a "Liquidation Event"), no distribution shall be made to the holders of any
Junior Securities unless prior thereto the holders of shares of the Preferred
Stock and any outstanding shares of Class D Preferred Stock shall have received
the Liquidation Preference (as defined in Section 4(c)) with respect to each
share. If upon the occurrence of a Liquidation Event, the assets and funds
available for distribution among the holders of the Preferred Stock and holders
of any Class D Preferred Stock shall be insufficient to permit the payment to
such holders of the Liquidation Preference (as defined below) payable thereon,
then the entire assets and funds of the Corporation legally available for
distribution to the Preferred Stock and any Class D Preferred Stock shall be
distributed ratably among such shares in proportion to the ratio that the
Liquidation Preference payable on each such share bears to the aggregate
Liquidation Preference payable on all such shares.
(b) For purposes hereof, the "Liquidation Preference" of a holder of
Preferred Stock means the greater of (i) the Stated Value of the shares of
Preferred Stock held by the holder plus the amount of any accrued and unpaid
dividends (in cash) through the date of final distribution to the holder thereof
(or with respect to any other event as of the date the measurement of such
Liquidation Preference is relevant to such event) and (ii) the amount equal to
what the holder would have received had he converted the Preferred Stock into
Common Stock on the business day immediately prior to the record date for such
Liquidation Event.
(c) The Corporation shall not effect any distribution as a result of a
Liquidated Event, unless each holder of Preferred Stock has been mailed written
notice of such distribution at least 20 days prior thereto and in no event later
than 10 days prior to the record date for the determination of shareholders
entitled to participate in such distribution.
5. Conversion Rights.
(a) Each holder of shares of the Preferred Stock may, at any time and
from time to time upon surrender of the certificates therefor, convert any or
all of its shares of Preferred Stock into shares of Common Stock. Each share of
Preferred Stock shall be convertible into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing (x) the Stated
Value thereof by (y) the Conversion Price (as defined
<PAGE>
below) then in effect. Additionally, at the time of delivery of the shares of
Common Stock upon conversion, the Company shall pay any and all dividends
accrued on the Preferred Stock through the date of conversion in cash or shares
of Common Stock.
(b) Conversion Price. Subject to Section 5(c) below, the "Conversion
Price" shall be equal to $1.00 per share of Common Stock.
(c) Conversion Price and Other Adjustments. The Conversion Price and
the number of shares of Common Stock issuable upon conversion of the Preferred
Stock shall be subject to adjustment from time to time as follows:
(i) Adjustment Due to Stock Split, Stock Dividend, Etc. If at any
time when any shares of Preferred Stock are issued and outstanding, the number
of outstanding shares of Common Stock is increased by a stock split, stock
dividend, combination, reclassification or other similar event, the Conversion
Price shall be proportionately reduced, or if the number of outstanding shares
of Common Stock is decreased by a reverse stock split, combination or
reclassification of shares, or other similar event, the Conversion Price shall
be proportionately increased. In such event, the Corporation shall notify the
Transfer Agent of such change on or before the effective date thereof.
(ii) Adjustment Due to Merger, Consolidation, Etc. If, at any
time when any shares of Preferred Stock are issued and outstanding, there shall
be (each of the following being referred to as a "Merger Event") (a) any
reclassification or change of the outstanding shares of Common Stock (other than
a change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination described in
Section 5(c)(i) above), (b) any consolidation or merger of the Corporation with
any other corporation (other than a merger in which the Corporation is the
surviving or continuing entity and its capital stock is unchanged), (c) any sale
or transfer of all or substantially all of the assets of the Corporation or (d)
any share exchange pursuant to which all of the outstanding shares of Common
Stock are converted into other securities or property, then the holders of
Preferred Stock shall thereafter have the right to receive upon conversion of
their Preferred Stock, upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of Common Stock, such shares of
stock, securities and other property as would have been issuable or payable in
connection with the Merger Event with respect to or in exchange for the number
of shares of Common Stock immediately theretofore issuable and receivable upon
the conversion of the Preferred Stock held by such holders had such Merger Event
not taken place, and in any such case appropriate provisions shall be made with
respect to the rights and interests of the holders of the Preferred Stock to the
effect that the provisions hereof (including, without limitation, provisions for
adjustment of the Conversion Price and the corresponding number of shares of
Common Stock issuable upon conversion of the Preferred Stock) shall thereafter
be applicable, as nearly as may be practicable in relation to any shares of
stock or securities thereafter deliverable upon the conversion thereof. The
Corporation shall not effect any transaction described in this subsection (ii)
unless (x) each holder of the Preferred Stock has been mailed written notice of
such transaction at least 20 days prior thereto and in no event later than 10
days prior to the record date for the determination of shareholders entitled to
vote with respect thereto, and (y) the resulting successor or acquiring entity
(if not the Corporation) assumes by written instrument the obligations of this
subsection (ii). The above provisions shall similarly apply to successive
reclassifications, consolidations, mergers, sales, transfers or share exchanges.
Notwithstanding the foregoing, upon receipt of notice of any Merger Event,
each holder of Preferred Stock shall have the right, by written notice to the
Corporation at any time prior to the Merger Event, to elect, in his sole
discretion, to treat such Merger Event as a Liquidation Event, and be paid his
Liquidation Preference on consummation of the Merger Event.
(iii) Adjustment Due to Distribution. In the event that at any
time or from time to time the Corporation shall distribute to all holders of
Common Stock (a) any dividend or other distribution of cash, evidences of its
indebtedness, shares of its capital stock or any other properties or securities
or (b) any options, warrants or other rights to subscribe for or purchase any of
the foregoing (other than, in each case, the issuance of any rights under a
shareholder rights plan (a "Distribution"), then, in each such case, after the
date of record for determining shareholders entitled to such Distribution, but
prior to the date of Distribution, the holders of Preferred Stock shall be
entitled, upon conversion of shares of Preferred Stock, to receive the amount of
such assets which would have been payable to the holder had such holder been the
holder of such shares of Common Stock on the
<PAGE>
record date for the determination of shareholders entitled to such Distribution.
The Conversion Price for shares of Preferred Stock not converted prior to the
date of Distribution will be reduced to a price determined by decreasing the
Conversion Price in effect immediately prior to the record date of the
Distribution by an amount equal to the fair market value of the assets so
distributed per share of Common Stock (calculated as if all shares of Common
Stock issuable upon conversion of outstanding shares of Preferred Stock had been
converted as of the record date of the Distribution). For purposes of
determining the fair market value of any assets so distributed, the fair market
value of any cash distributed shall be the amount of such cash and the fair
value of any other assets so distributed shall be determined in good faith by
the Board of Directors of the Corporation, whose determination shall be
evidenced by a board resolution, a copy of which will be sent to the holders of
the Preferred Stock upon request.
(iv) Adjustment Due to Rights Issue. If, at any time when shares
of Preferred Stock are issued and outstanding, the Corporation shall distribute
to all holders of its Common Stock any rights, options or warrants entitling the
holders thereof to subscribe for shares of Common Stock, or securities
convertible into or exchangeable or exercisable for Common Stock (collectively,
"Rights") at a price per share that is less than the Current Market Value (as
defined in Section 5(g)) as of the date such Right first becomes exercisable
(the "Exercisability Date"), then the Conversion Price for shares of Preferred
Stock not converted prior to such Exercisability Date shall be reduced to a
price determined by multiplying the Conversion Price in effect immediately prior
to the Exercisability Date by a fraction, (i) the numerator of which is an
amount equal to the sum of (x) the number of shares of Common Stock actually
outstanding immediately prior to the Exercisability Date plus (y) the quotient
(expressed as a number) obtained by dividing (A) the aggregate minimum
consideration receivable by the Corporation upon the exercise of all such
Rights, by (B) the Current Market Value in effect immediately prior to the
Exercisability Date and (ii) the denominator of which is the total number of
shares of Common Stock Deemed Outstanding (as defined below) immediately after
the Exercisability Date. For purposes of this Section 5(c)(iv), "Common Stock
Deemed Outstanding" shall mean the number of shares of Common Stock actually
outstanding plus the maximum total number of shares of Common Stock issuable
upon the exercise, conversion or exchange of all Rights or securities issuable
upon exercise of Rights.
(v) Other Events. If any event occurs as to which the foregoing
provisions of this Section 5(c) are not strictly applicable or, if strictly
applicable, would not, in the good faith judgment of the Board of Directors of
the Corporation, fairly and adequately protect the conversion rights of the
Preferred Stock in accordance with the essential intent and principles of such
provisions, then the Board of Directors shall make such adjustments in the
application of such provisions, in accordance with such essential intent and
principles, as shall be reasonably necessary, in the good faith opinion of the
Board of Directors, to protect such conversion rights as aforesaid, but in no
event shall any such adjustment have the effect of increasing the Conversion
Price or decreasing the number of shares of Common Stock issuable upon
conversion of any shares of Preferred Stock.
(d) Conversion and Liquidation Preference Election Procedures. In
order to convert shares of Preferred Stock into full shares of Common Stock (or
to elect to receive the Liquidation Preference as a result of a Merger Event in
lieu of the adjustment required pursuant to Section 4(c)), a holder shall: (i)
prior to 5:00 p.m., New York City time on the Election Date (as defined in
subsection (iv) below), fax or otherwise deliver notice ("Notice of Election")
to the Corporation that the holder elects to convert the same (or elects to
receive the Liquidation Preference), which notice shall be signed by the holder
and shall specify the number of shares of Preferred Stock to be converted (or
liquidated), the Conversion Price and a calculation of the number of shares of
Common Stock issuable upon such conversion (or the amount of cash to be received
in respect of the Liquidation Preference) and (ii) surrender the original
certificates representing the Preferred Stock being converted (the "Preferred
Stock Certificates"), duly endorsed, along with a copy of the Notice of Election
within three business days thereafter to the office of the Corporation or the
Transfer Agent, if any, for the Preferred Stock. The Corporation shall not be
obligated to issue certificates evidencing the shares of Common Stock issuable
upon such conversion (or payment of the Liquidation Preference) unless either
the Preferred Stock Certificates are delivered to the Corporation or its
Transfer Agent as provided above, or the holder notifies the Corporation or its
Transfer Agent that such certificates have been lost, stolen or destroyed
(subject to the requirements of subparagraph (i) below). In the case of a
dispute as to the calculation of the Conversion Price (or Liquidation
Preference) other than manifest error by a holder, the Corporation shall
promptly issue such number of shares of Common Stock that are not disputed in
accordance with subparagraph (ii) below (or deliver the Liquidation Preference
pursuant to Section 4(c)). The Corporation shall submit the disputed
calculations to its independent auditors via facsimile within two business days
of receipt of the Notice of Election. The accountant shall audit the
calculations and notify the Corporation and the holder of the
<PAGE>
results no later than two business days from the time it receives the disputed
calculations. The accountant's calculation shall be deemed conclusive, absent
manifest error.
(i) Lost or Stolen Certificates. Upon receipt by the Corporation
of evidence of the loss, theft, destruction or mutilation of any Preferred Stock
Certificates representing shares of Preferred Stock, and (in the case of loss,
theft or destruction) of indemnity or security reasonably satisfactory to the
Corporation, and upon surrender and cancellation of the Preferred Stock
Certificate(s), if mutilated, the Corporation shall execute and deliver new
Preferred Stock Certificate(s) of like tenor and date. However, the Corporation
shall not be obligated to reissue such lost or stolen Preferred Stock
Certificate(s) if the holder contemporaneously delivers to the Corporation a
Notice of Election electing to convert such shares of Preferred Stock.
(ii) Delivery of Common Stock Upon Conversion. Upon the surrender
of Preferred Stock Certificates as described above by a holder of Preferred
Stock accompanied by a Notice of Election, the Corporation shall issue and,
within three business days after the later of the Election Date and the date of
such surrender (or, in the case of lost, stolen or destroyed certificates, after
provision of agreement and indemnification pursuant to subparagraph (i) above)
(the "Delivery Period"), deliver to or upon the order of the holder (a) that
number of shares of Common Stock applicable to that portion of shares of
Preferred Stock converted as shall be determined in accordance herewith, (b) a
certificate representing the balance of the shares of Preferred Stock not
converted, if any, and (c) dividends in the form of either (x) a check payable
to the holder for any and all dividends accrued on the Preferred Stock being
converted, through the date of conversion, or (y) shares of Common Stock. Upon
delivery of a Notice of Election and surrender of the Preferred Stock
Certificate related thereto (or an indemnification agreement if required
pursuant to paragraph (i) above), the Corporation's obligation to deliver shares
of Common Stock shall be absolute and unconditional and the Corporation agrees
not to assert (and hereby waives to the fullest extent permitted by law) any
defenses against its obligation to so deliver such shares. In the event the
Corporation fails to deliver such shares, the Corporation understands that the
holder will be entitled to pursue actual damages (whether or not such failure is
caused by the Corporation's failure to maintain a sufficient number of
authorized shares of Common Stock as required pursuant to the terms of Section
5(e) hereof), and each holder shall have the right to pursue all remedies
available at law or in equity (including a decree of specific performance or
injunctive relief).
(iii) No Fractional Shares. If any conversion of Preferred Stock
would result in a fractional share of Common Stock, such fractional share shall
be disregarded and the number of shares of Common Stock issuable upon the
conversion of the Preferred Stock shall be rounded to the nearest whole number
of shares.
(iv) Election Date. The "Election Date" shall be the date
specified in the Notice of Election; provided, however, that if the copy of the
Notice of Election is not submitted by facsimile (or by other means resulting in
notice) to the Corporation before 5:00 p.m., New York City time, on the Election
Date indicated in the Notice of Election, then the Election Date shall be the
next day. Upon submission by a holder of the Preferred Stock of a Notice of
Election with respect to shares of Preferred Stock, such shares shall be
irrevocably deemed converted into shares of Common Stock (or liquidated in
accordance with the Liquidation Preference) and the holder's rights as a holder
of such shares of Preferred Stock shall cease and terminate, excepting only the
right to receive certificates for such shares of Common Stock in accordance with
and subject to this Section 5(d).
(v) Rights of Reversion. Any holder that delivers to the
Corporation a Notice of Election at any time during the period beginning on the
date the Corporation first mails notice to holders of Preferred Stock of any
contemplated Liquidation Event, Merger Event or redemption ( in each case, an
"Event") and the day immediately prior to the date the Event is to be effected
or consummated, shall have the absolute right, his in discretion, and in the
event the Event is not effected or consummated as contemplated, to rescind such
Notice of Election by written notice delivered to the Corporation within 10 days
after the date on which the Corporation delivers notice to such holder of the
cancellation of the Event ("Notice of Cancellation"). A Notice of Cancellation
shall be delivered by the Corporation to each holder of Preferred Stock within 3
days of the cancellation of any contemplated Event.
(e) Reservation of Shares. A number of shares of the authorized but
unissued Common Stock sufficient to provide for the conversion of the Preferred
Stock outstanding at the then current Conversion Price shall at all times be
reserved by the Corporation, free from preemptive rights, for such conversion.
If the Corporation shall issue any securities or make any change in its capital
structure which would change the number of shares of
<PAGE>
Common Stock into which each share of the Preferred Stock shall be convertible
at the then current Conversion Price, the Corporation shall at the same time
also make proper provision so that thereafter there shall be a sufficient number
of shares of Common Stock authorized and reserved, free from preemptive rights,
for conversion of the outstanding Preferred Stock on such new basis. If, at any
time, a holder of shares of Preferred Stock submits a Notice of Election and the
Corporation does not have sufficient authorized but unissued shares of Common
Stock available to effect such conversion in accordance with the provisions of
this Section, the Corporation shall issue to the holder all of the shares of
Common Stock which are available to effect such conversion and shall thereafter
use its best efforts to obtain, as soon as practicable, shareholder approval to
authorize the issuance of sufficient shares of Common Stock to effect conversion
of the Preferred Stock outstanding.
(f) Calculation of Adjustment. Upon the occurrence of each adjustment
or readjustment of the Conversion Price pursuant to this Section 5, the
Corporation, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each
holder of Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at any
time of any holder of Preferred Stock, furnish or cause to be furnished to such
holder a like certificate setting forth (i) such adjustment or readjustment,
(ii) the Conversion Price at the time in effect and (iii) the number of shares
of Common Stock and the amount, if any, of other securities or properties which
at the time should be received upon conversion of a share of Preferred Stock.
(g) Current Market Value. For purposes of this Certificate of
Designation, "Current Market Value" per share of Common Stock or any other
security at any date means (i) if the security is not registered under the
Exchange Act, (a) the value of the security, determined in good faith by the
Board of Directors and certified in a board resolution, based on the most
recently completed arm's-length transaction between the Corporation and a Person
other than an affiliate of the Corporation (or between any two such Persons) and
the closing of which occurs on such date or shall have occurred within the
six-month period preceding such date, or (b) if no such transaction shall have
occurred on such date or within such six-month period, the value of the security
as determined by an independent financial expert or (ii) if the security is
registered under the Exchange Act, the average of the closing bid prices for
each trading day during the period commencing 10 trading days before such date
and ending on the date one day prior to such date, or if the security has been
registered under the Exchange Act for less than 10 consecutive trading days
before such date, the average of the closing bid prices for all of the trading
days before such date for which daily closing bid prices are available;
provided, however, that if the closing bid price is not determinable for at
least five trading days in such period, the "Current Market Value" of the
security, shall be determined as if the security were not registered under the
Exchange Act.
6. Redemption. Subject to the conversion rights set forth in Section 4 of
this Certificate, the Company may redeem the Preferred Stock at any time, upon
30 day's written notice, for an amount in cash equal to its Stated Value plus
all accrued and unpaid dividends through the date of redemption if (i) a
registration statement registering the resale of the shares of Common Stock
issuable upon conversion of all the then outstanding shares of Preferred Stock
is current and effective and (ii) the last sale price of the Common Stock has
been at least $2.50 on all 20 of the trading days ending on the third date prior
to the date on which notice of redemption is given.
7. Voting Rights. The holders of record of shares of Preferred Stock shall
not be entitled to any voting rights other than those voting rights required by
applicable law.
8. No Impairment. The Corporation will not, by amendment of its Certificate
of Incorporation or through any reorganization, recapitalization, 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 to be observed or performed hereunder by the Corporation, but
will at all times in good faith assist in the carrying out of all the provisions
of this Certificate and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holders against impairment.
9. Cancellation of Preferred Stock. In the event any shares of Preferred
Stock shall be converted pursuant to Section 5, or redeemed pursuant to Section
6, the shares so converted shall be canceled, shall return to the status of
unissued preferred stock of no designated series, and shall not be issuable by
the Corporation as Class C 10% Convertible Preferred Stock.
<PAGE>
10. Amendments and Other Actions. So long as shares of Preferred Stock are
outstanding, the Corporation shall not, without first obtaining the approval (by
vote or written consent) of the holders of all of the then outstanding shares of
Preferred Stock:
(a) alter or change the rights, preferences or privileges of the
Preferred Stock or any other capital stock of the Corporation so as to affect
adversely the Preferred Stock; or
(b) create any new class or series of senior to or pari passu with the
Preferred Stock, other than the Class D Preferred Stock.
Notwithstanding the foregoing, the Corporation when authorized by
resolutions of its Board of Directors may amend or supplement this Certificate
without the consent of, any Holder to cure any ambiguity, defect or
inconsistency or make any other change provided that such amendments or
supplements shall not adversely affect the interests of the Holders.
11. Registration and Transfer. The Corporation shall maintain at its
principal executive offices (or at the principal executive offices of its
transfer agent or such other office or agency of the Corporation as it may
designate by notice to the holders of the Preferred Stock) a stock register for
the Preferred Stock in which the Corporation shall record the names and
addresses of person in whose name the shares of Preferred Stock are issued, as
well as the name and address of each transferee. Holders of share certificates
for the Preferred Stock may present such certificates for transfer and exchange
at such offices.
Prior to due presentment for registration of transfer of any Preferred
Stock, the Corporation may deem and treat the person in whose name any Preferred
Stock is registered as the absolute owner of such Preferred Stock and the
Corporation shall not be affected by notice to the contrary.
No service charge shall be made to a holder of Preferred Stock for any
registration, transfer or exchange.
12. Transfer Without Registration. If, at the time of the surrender of any
share certificate in connection with any transfer or exchange of shares of
Preferred Stock, such shares shall not be registered under the Securities Act
and under applicable state securities or blue sky laws, the Corporation may
require, as a condition of allowing such transfer or exchange (i) that the
holder or transferee, as the case may be, furnish to the Corporation a written
opinion of counsel (which opinion and counsel shall be reasonably acceptable to
the Corporation) to the effect that such transfer or exchange may be made
without registration under the Securities Act and under applicable state
securities or blue sky laws, (ii) that the holder or transferee execute and
deliver to the Corporation a letter in form and substance acceptable to the
Corporation stating that the transferee is acquiring such shares for investment
purposes only and not with a view towards distribution thereof and (iii) that
the transferee be an "accredited investor" as defined in Rule 501(a) promulgated
under the Securities Act; provided, however, that no such opinion, letter or
status as an "accredited investor" shall be required in connection with a
transfer pursuant to Rule 144 under the Securities Act (but such other customary
documentation reasonably requested by the Corporation shall be required).
13. Method of Payment. Payments will be made as to dividends (if cash
payment is elected by the Corporation), Liquidation Preferences, redemptions and
all other payments by wire transfer of immediately available funds to the
accounts specified by the holders thereof or, if no such account is specified by
a holder, by mailing a certified check to such holder's registered address.
IN WITNESS WHEREOF, AMERTRANZ WORLDWIDE HOLDING CORP. has caused this
Certificate of Designations to be duly executed by its Chief Executive Officer,
who affirms that the information contained in the foregoing Certificate of
Designations is true under the penalties of perjury this 13th day of June, 1997.
AMERTRANZ WORLDWIDE HOLDING CORP.
By: /s/ Stuart Hettleman
-------------------------------
Stuart Hettleman
Chief Executive Officer
<PAGE>
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
AMERTRANZ WORLDWIDE HOLDING CORP.
THE UNDERSIGNED, being the President of Amertranz Worldwide Holding
Corp., hereby certifies that:
FIRST: The name of the Corporation is Amertranz Worldwide Holding Corp.
SECOND: The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on January 16, 1996.
THIRD: ARTICLE FOURTH of said Certificate of Incorporation is hereby
amended in its entirety to read as follows:
"The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 32,500,000 shares
consisting of (1) 2,500,000 shares of preferred stock, $10.00 par value
(the "Preferred Stock"); and (2) 30,000,000 shares of common stock,
$.01 par value (the "Common Stock")."
The Board of Directors shall have authority to establish the classes,
designations, powers, preferences and relative participating, optional or other
special rights, and the qualifications, limitations and restrictions thereof in
respect of the Preferred Stock and the Common Stock.
FOURTH: The foregoing amendment has been duly advised and adopted by the
Board of Directors of the Corporation and approved by the stockholders of the
Corporation in accordance with the applicable provisions of Section 242 of the
General Corporation Law of the State of Delaware by written consent of the
stockholders of the Corporation given in accordance with the provisions of
Section 228 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 9th
day of July, 1997.
ATTEST:
/s/ Philip J. Dubato /s/ Stuart Hettleman
- --------------------------- --------------------------
Secretary President
C64892.198
<PAGE>
CERTIFICATE OF DESIGNATIONS
AMERTRANZ WORLDWIDE HOLDING CORP.
The undersigned, being the President of Amertranz Worldwide Holding
Corp. (the "Company"), hereby certifies, pursuant to Section 151(g) of the
General Corporation Law of Delaware, that the Board of Directors of the
Corporation has duly adopted and approved the powers, designations, preferences
and relative, participating optional or other rights of the shares of Preferred
Stock, $10.00 par value per share, of the Corporation as follows:
RESOLVED, that the following is hereby adopted and approved:
Class D Preferred Stock: Two hundred thousand (200,000) shares of the
Preferred Stock authorized in the Certificate of Incorporation are to be
designated as Class D Preferred Stock.
Par Value. The shares of Class D Preferred Stock shall have a par or
stated value of $10.00 per share.
Rank. All shares of the Class D Preferred Stock shall rank senior to
the Company's common stock, par value $.01 per share (the "Common Stock"), and
to any other class of capital stock or series of preferred stock now existing or
established hereafter by the Board of Directors other than the Company's Class C
10% Convertible Preferred Stock (the "Class C Preferred Stock; the Common Stock
and all such classes of capital stock other than the Class C Preferred Stock are
hereinafter collectively referred to as the "Junior Securities"), as to the
distribution of assets upon liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, and with respect to the payment of
dividends. The Company shall not issue any class or series of capital stock
which ranks pari passu with the Class D Preferred Stock except the Class C
Preferred Stock.
Dividends: Holders of Class D Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of legally
available funds, dividends at an annual rate of $1.00 per share, payable
semi-annually in arrears on June 30 and December 31 of each year, in cash or in
shares of Class D Preferred Stock at the rate of $10.00 per share. Dividends
shall accrue and are cumulative from the most recent date to which dividends
have been paid. The priority of dividends payable on shares of Class D Preferred
Stock shall rank pari passu with the priority of dividends payable on the
Company's Class C Preferred Stock and shall have priority over dividends or any
distributions payable on any Junior Securities.
Preference on Liquidation. In a case of the voluntary or involuntary
liquidation, dissolution or winding up of the Company, holders of shares of
Class D Preferred Stock then outstanding shall be entitled to be paid out of the
assets of the Company available for distribution to stockholders an amount in
cash equal to $10.00 per share, plus an amount equal to any accrued and unpaid
dividends, whether or not declared, to the payment date, before any payment or
distribution shall be made to the holders of any Junior Securities. The
liquidation preference payable on shares of Class D Preferred Stock shall rank
pari passu with the liquidation preference payable on the Company's Class C
Preferred Stock and shall have priority over any liquidation distributions
payable on any Junior Securities.
Voting. The holders of Class D Preferred Stock shall have no voting
rights except as required by law. In exercising any voting rights, each
outstanding share of Class D Preferred Stock shall be entitled to one vote.
<PAGE>
Conversion Rights. Each holder of Class D Preferred Stock shall have
the right, at the holder's option, from time to time and at any time, to convert
any or all such shares of Class D Preferred Stock into Common Stock. Each share
of Class D Preferred Stock shall be convertible into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing (i) the
par or stated value thereof by (ii) the Conversion Price (as hereinafter
defined) then in effect. The "Conversion Price" shall be equal to the lower of
the following, subject to adjustment as described below: (a) $6.00 per share of
Common Stock, or (b) 80% of the average of the closing bid and asked price per
share of Common Stock on the day prior to the conversion date.
The Conversion Price is subject to adjustment in certain events,
including (i) the payment of a dividend on any class of the Company's capital
stock in shares of Common Stock or any other securities issued by the Company or
any of its subsidiaries; (ii) subdivisions or combinations of the Common Stock;
(iii) the issuance to all holders of Common Stock of rights or warrants to
subscribe for or purchase Common Stock or securities convertible into or
exchangeable for Common Stock, for a consideration per share of Common Stock
less than the current market price per share of the date of issuance of the
securities.
Registration Rights. At the request of a holder of shares of Class D
Preferred Stock, the Company shall register for resale under the Securities Act
of 1933, as amended ("Securities Act") any shares of Common Stock issued upon
conversion of shares of the Class D Preferred Stock.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this
26th day of November, 1997.
/s/ Stuart Hettleman
-----------------------------
Stuart Hettleman, President
Attest:
/s/ Hillel Tendler
- -----------------------------------
Hillel Tendler, Assistant Secretary
C71539.198
<PAGE>
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
CLASS E PREFERRED STOCK OF
AMERTRANZ WORLDWIDE HOLDING CORP.
The undersigned, being the President of Amertranz Worldwide Holding
Corp. (the "Company"), hereby certifies, pursuant to Section 151(g) of the
General Corporation Law of Delaware, that the Board of Directors of the
Corporation has duly adopted and approved the powers, designations, preferences
and relative, participating optional or other rights of the shares of preferred
stock, Ten Dollars ($10.00) par value per share, of the Corporation as follows:
RESOLVED, that the following is hereby adopted and approved:
(a) Designation and Amount. Two hundred fifty thousand (250,000)
shares of the preferred stock authorized in the Certificate of Incorporation are
to be designated as Class E Preferred Stock (the "Preferred Stock").
(b) Par Value. The Shares of Preferred Stock shall have a par or
stated value of Ten Dollars ($10.00) per share (the "Stated Value").
(c) Dividends. Holders of Preferred Stock shall be entitled to receive
out of legally available funds, dividends payable as follows:
(i) Semi-annual dividends (the "Semi-Annual Dividends") shall be
payable as of each February 15 and September 30 of each year (the
"Semi-Annual Distribution Dates"), commencing February 15, 1998, to holders
of outstanding shares of Preferred Stock of record on such Semi-Annual
Distribution Date. The Semi-Annual Dividends shall be payable solely from
the Company's "Reported Net Profits" (as defined below), for the six (6)
month period ending on June 30 or December 31 immediately preceding the
Semi-Annual Distribution Date (the "Six Month Period"). As used herein,
"Reported Net Profits" means the net income of the Company before
amortization of goodwill for the applicable period as reported by the
Company in its applicable financial statements filed on its Quarterly
Report on Form 10-Q or Annual Report on Form 10-K, as the case may be,
filed with the United States Securities and Exchange Commission. The
SemiAnnual Dividend on each outstanding share of Preferred Stock on each
Semi-Annual Distribution Date shall be equal to the quotient obtained by
dividing (a) twenty percent (20%) of the Reported Net Profits for the
preceding Six Month Period, by (b) the number of issued shares of Preferred
Stock including outstanding shares and shares which have been redeemed or
otherwise acquired by the Company. In the event that in any Six Month
Period the Company shall report a net loss, before amortization of goodwill
(the "Net Loss"), the Net Loss shall be carried forward into succeeding Six
Month Periods and shall be used to reduce the Reported Net Profits reported
in succeeding Six Month Period(s).
(ii) In addition to the Semi-Annual Dividends, additional dividends
(the "Additional Dividends") shall be payable as of February 15, 1998,
September 30, 1998, February 15, 1999, and September 30, 1999 (the
"Additional Distribution Date"), to holders of outstanding shares of
Preferred Stock of record on such Additional Distribution Date. The
Additional Dividend on each outstanding share of Preferred Stock on each
Additional Distribution Date shall be equal to the quotient obtained by
dividing (a) the amount required to be paid by Target Airfreight, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company ("Target"),
to Amertranz Worldwide, Inc., a Delaware
<PAGE>
corporation and wholly-owned subsidiary of the Company ("Worldwide"),
pursuant to the Customer Sale Agreement dated as of June 20, 1997, by and
between Worldwide and Target, with respect to the Six Month Period
immediately preceding the relevant Additional Distribution Date, by (b) the
number of issued shares of Preferred Stock including outstanding shares and
shares which have been redeemed or otherwise acquired by the Company.
(iii) In addition to the Semi-Annual Dividends and the Additional
Dividends, special dividends (the "Special Dividends") shall be payable on
outstanding shares of Preferred Stock from the net cash proceeds to the
Company from the sale of any equity securities prior to mandatory
conversion or redemption of the Preferred Stock, as follows: To the extent
at least thirty percent (30%) of such net cash proceeds are not used to
redeem shares of Preferred Stock (such amount not used to redeem shares of
Preferred Stock being hereinafter referred to as the "Aggregate Special
Dividend Proceeds"), a Special Dividend shall be paid on each outstanding
share of Preferred Stock. The Special Dividend to be paid on each
outstanding share of Preferred Stock shall be equal to the quotient
obtained by dividing (a) the Aggregate Special Dividend Proceeds, by (b)
the number of issued shares of Preferred Stock including outstanding shares
and shares which have been redeemed or otherwise acquired by the Company.
Any Special Dividend shall be payable on the tenth (10th) business day
following the receipt by the Company of such net cash proceeds to holders
of outstanding shares of Preferred Stock of record on such date.
The cumulative amount of all Semi-Annual Dividends, Additional
Dividends, and Special Dividends (collectively, "Dividends") to be paid on each
share of Preferred Stock throughout the time such share is outstanding shall not
exceed the Stated Value. Anything contained herein to the contrary
notwithstanding, the aggregate amount of Dividends payable on any Semi-Annual
Distribution Date or Additional Dividend Date, as the case may be, shall be
reduced by the amount of all payments required to be made by the Company on such
date pursuant to Paragraphs 4(A), 4(B) and 4(D) of the Extension and Composition
Agreement dated as of November 7, 1997, by and among the Company, Worldwide, and
certain general unsecured creditors of Worldwide, and any such reduction shall
be applied pro rata among all outstanding shares of Preferred Stock. Anything
contained herein to the contrary notwithstanding, no Dividends shall be paid if
such payment would cause a default under, or violate the terms or conditions of,
any agreement between the Company and one or more of its secured creditors. Any
Dividends not paid as a result of any agreement between the Company and one or
more of its secured creditors shall accrue and be paid when permitted.
(d) Rank. With respect to the distribution of assets upon liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary, the
shares of the Preferred Stock shall rank: (i) senior to the Company's common
stock, par value $.01 per share (the "Common Stock"); (ii) junior to the
Company's Class C 10% Convertible Preferred Stock and Class D Preferred Stock;
and (iii) pari passu with any other class of capital stock or series of
preferred stock now existing or established hereafter by the Board of Directors.
(e) Voting. The holders of the Preferred Stock shall have no voting
rights except as required by law. In exercising any voting rights, each
outstanding share of the Preferred Stock shall be entitled to one vote.
(f) Mandatory Conversion. All unredeemed shares of Preferred Stock
shall be deemed canceled on the books and records of the Company and/or its
Transfer Agent on December 1, 2004 (the "Conversion Date") with no further
action on the part of any holder of shares of Preferred
<PAGE>
Stock. In exchange for such cancellation, each holder of shares of Preferred
Stock shall receive, as soon as practicable after the Conversion Date, such
number of shares of Common Stock equal to:
(i) the product obtained by multiplying
(a) the number of shares of Preferred Stock held of record by such
holder, by
(b) the Stated Value,
divided by
(ii) the greater of
(a) the closing market price of the Common Stock on the Conversion
Date, as quoted on the market on which the shares are traded, or
(b) an amount equal to the sum of
(A) Three Dollars ($3.00), plus
(B) an amount equal to the product obtained by multiplying (1)
Three Dollars ($3.00), by (2) a fraction, the numerator of which is the
aggregate Dividends paid on a share of Preferred Stock and the denominator of
which is one and one-quarter (1.25).
If any conversion of Preferred Stock would result in a fractional share of
Common Stock, such fractional share shall be disregarded and the number of
shares of Common Stock issuable upon the conversion of the Preferred Stock shall
be rounded to the nearest whole number of shares.
(g) Redemption. Prior to mandatory conversion, as set forth in Section
6 of this Certificate, the Company may redeem all or any portion of the
outstanding shares of Preferred Stock, at any time, upon 15 days' written
notice, for an amount in cash equal to the Stated Value for each share of
Preferred Stock so redeemed.
(h) Registration and Transfer. The Company shall maintain at its
principal executive offices (or at the principal executive offices of its
Transfer Agent or such other office or agency of the Company as it may
designate) a stock register for the Preferred Stock in which the Company shall
record the names and addresses of person in whose name the shares of Preferred
Stock are issued, as well as the name and address of each transferee. Holders of
share certificates for the Preferred Stock may present such certificates for
transfer and exchange at such offices. Prior to due presentment for registration
of transfer of any shares of Preferred Stock, the Company may deem and treat the
person in whose name any shares of Preferred Stock are registered as the
absolute owner of such shares of Preferred Stock and the Company shall not be
affected by notice to the contrary. No service charge shall be made to a holder
of Preferred Stock for any registration, transfer or exchange.
(i) Transfer Without Securities Registration. The Company is not
required to register any shares of Preferred Stock or any shares of Common Stock
into which outstanding shares of Preferred Stock are convertible pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities or blue sky laws (the "State Acts"). If, at the time of the
surrender of any share certificate in connection with any transfer or exchange
of shares of Preferred Stock, such shares are not registered under the
Securities Act and applicable State Acts, the Company may require, as a
condition of allowing such transfer or exchange (i) that the holder or
transferee, as the case may be, furnish to the Company a written opinion of
counsel (which opinion and counsel shall be reasonably
<PAGE>
acceptable to the Company) to the effect that such transfer or exchange may be
made without registration under the Securities Act and applicable State Acts,
(ii) that the holder or transferee execute and deliver to the Company a letter
in form and substance acceptable to the Company stating that the transferee is
acquiring such shares for investment purposes only and not with a view towards
distribution thereof and (iii) that the transferee is an "accredited investor"
as defined in Rule 501(a) promulgated under the Securities Act; provided,
however, that no such opinion, letter or status as an "accredited investor"
shall be required in connection with a transfer pursuant to Rule 144 under the
Securities Act (but such other customary documentation reasonably requested by
the Company shall be required).
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this
30th of January, 1998.
/s/ Stuart Hettleman
----------------------------
Stuart Hettleman, President
ATTEST:
/s/ Philip J. Dubato
- ---------------------------
Philip J. Dubato, Secretary
<PAGE>
CERTIFICATE OF CORRECTION FILED TO CORRECT
A CERTAIN ERROR IN THE CERTIFICATE OF DESIGNATION
OF AMERTRANZ WORLDWIDE HOLDING CORP.
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON FEBRUARY 5, 1998
Amertranz Worldwide Holding Corp., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware does
hereby certify:
1. The name of the corporation is Amertranz Worldwide Holding
Corp.
2. That a Certificate of Designation was filed with the Secretary
of State of Delaware on February 5, 1998, and that said
Certificate requires correction as permitted by Section 103 of
the General Corporation Law of the State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected
is as follows:
The procedure for redemption by the Company of outstanding
shares of Class E Preferred Stock set forth in Section 7 of
said Certificate was not in accordance with the corporate
action referred to therein. The Certificate is corrected by
revising said Section 7 to read in its entirety as follows:
"7. Redemption. Prior to mandatory conversion, as set forth in Section
6 of this Certificate, the Company may redeem all or any portion of
the outstanding shares of Preferred Stock, at any time, effective upon
written notice, for an amount in cash equal to the Stated Value for
each share of Preferred Stock so redeemed."
IN WITNESS WHEREOF, said Amertranz Worldwide Holding Corp. has caused this
Certificate to be signed by Stuart Hettleman, its President, this 24th day of
September, 1998.
AMERTRANZ WORLDWIDE HOLDING CORP.
By: /s/ Stuart Hettleman
---------------------------------
C64892.198
<PAGE>
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
AMERTRANZ WORLDWIDE HOLDING CORP.
THE UNDERSIGNED, being the President of Amertranz Worldwide Holding
Corp., hereby certifies that:
FIRST: The name of the Corporation is Amertranz Worldwide Holding Corp.
SECOND: The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on January 16, 1996.
THIRD: ARTICLE SECOND of said Certificate of Incorporation is hereby
amended in its entirety to read as follows:
"The name of the corporation is Target Logistics, Inc."
FOURTH: The foregoing amendment has been duly advised and adopted by the
Board of Directors of the Corporation and approved by the stockholders of the
Corporation in accordance with the applicable provisions of Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 30th
day of November, 1998.
ATTEST:
/s/ Hillel Tendler /s/ Stuart Hettleman
- --------------------------- ----------------------------
Assistant Secretary President
<PAGE>
