SECURITIES PURCHASE AGREEMENT
(COMMON SHARES AND WARRANTS)
SECURITIES PURCHASE AGREEMENT (the "AGREEMENT"), dated as of October 31,
2006, by and among Maritime Logistics US Holdings Inc., a Delaware corporation,
with headquarters located at 547 Boulevard, Kenilworth, New Jersey ("MLI" or the
"COMPANY"), and the investors listed on the Schedule of Buyers attached hereto
(individually, a "BUYER" and collectively, the "BUYERS").
A. The Company and each Buyer is executing and delivering this Agreement
in reliance upon the exemption from securities registration afforded by Section
4(2) of the Securities Act of 1933, as amended (the "1933 ACT"), and Rule 506 of
Regulation D ("REGULATION D") as promulgated by the United States Securities and
Exchange Commission (the "SEC") under the 1933 Act.
B. Each Buyer wishes to purchase, and the Company wishes ShellCo (as
defined below) to sell, upon the terms and conditions stated in this Agreement,
(i) that aggregate number of shares of ShellCo's Common Stock (the "COMMON
STOCK"), set forth opposite such Buyer's name in column (3) on the Schedule of
Buyers (which aggregate amount for all Buyers together shall not exceed five
million shares of Common Stock (calculated after the Company effects a reverse
stock split (discussed below)) and shall collectively be referred to herein as
the "COMMON SHARES") for an aggregate Purchase Price not to exceed
$50,000,000.00 and (ii) warrants, in substantially the form attached hereto as
EXHIBIT A (the "WARRANTS"), to acquire that number of shares of Common Stock set
forth opposite such Buyer's name in column (4) of the Schedule of Buyers (as
exercised, collectively, the "WARRANT SHARES").
C. Contemporaneously with the Closing (as defined below), the Buyers and
ShellCo will execute and deliver a Registration Rights Agreement, substantially
in the form attached hereto as EXHIBIT B (as amended, restated, supplemented
and/or modified from time to time in accordance with the provisions thereof, the
"REGISTRATION RIGHTS AGREEMENT") pursuant to which ShellCo shall agree to
provide certain registration rights in respect of the Common Shares, and the
Warrant Shares under the 1933 Act and the rules and regulations promulgated
thereunder, and applicable state securities laws.
D. The Common Shares, the Warrants and the Warrant Shares collectively are
referred to herein as the "SECURITIES".
E. In connection with the Reorganization (as defined below), ShellCo has
authorized the issuance of shares of Common Stock to certain members of its
management (the "MANAGEMENT RESTRICTED STOCK") the resale of which shall be
limited pursuant to the terms set forth in Lockup Agreements the form of which
is attached hereto as EXHIBIT C. Immediately prior to the issuance and delivery
of the Common Shares and Warrants as provided for herein, it is intended that
ShellCo shall issue the Management Restricted Stock to members of management of
the Company and their Subsidiaries.
F. Contemporaneously herewith, the Company is entering into a securities
purchase agreement, by and among the Company and the buyers listed on the
Schedule of Buyers attached thereto (the "CONVERTIBLE NOTE BUYERS"), (the
"CONVERTIBLE NOTE SECURITIES PURCHASE AGREEMENT"), wherein the Company agrees,
upon the terms and subject to the conditions of the Convertible Note Securities
Purchase Agreement, to cause ShellCo to issue and sell to the Convertible Note
Buyers (i) Senior Secured Convertible Notes of ShellCo due 2011 in an aggregate
principal amount of $65,000,000.00 (the "CONVERTIBLE NOTES"), which will be
convertible into shares of common stock (as converted, the "CONVERTIBLE NOTE
SHARES") in accordance with the terms of the Convertible Notes, and (ii) certain
warrants (the "CONVERTIBLE NOTES' WARRANTS"), which will be exercisable to
purchase additional shares of Common Stock (as exercised, the "CONVERTIBLE NOTE
WARRANT SHARES") in accordance with the terms of the Convertible Notes'
G. Contemporaneously with the Closing (as defined below), the Convertible
Note Buyers and ShellCo will execute and deliver a Registration Rights Agreement
(the "CONVERTIBLE NOTES REGISTRATION RIGHTS AGREEMENT"), pursuant to which
ShellCo will agree to provide certain registration rights in respect of the
Convertible Note Shares and Convertible Note Warrant Shares under the 1933 Act
and the rules and regulations promulgated thereunder, and applicable state
H. The Convertible Notes, Convertible Notes' Warrants and Convertible Note
Warrant Shares collectively are referred to herein as the "CONVERTIBLE NOTE
SECURITIES", and the offering thereof, the "CONVERTIBLE NOTE Offering".
I. Immediately prior to the Closing, a wholly-owned subsidiary of ShellCo
will be merged with and into the Company and the Company, as the surviving
entity, will become a wholly-owned subsidiary of ShellCo (the "REORGANIZATION").
J. Immediately prior to the Closing, ShellCo shall enter into a joinder
agreement, pursuant to which ShellCo shall, among other things, join this
Agreement, affirm the representations and warranties hereunder and agree to
perform the obligations and covenants of the Company hereunder (the "JOINDER
AGREEMENT"). The Company's obligation hereunder is subject to the condition that
ShellCo enter into the Joinder Agreement.
K. Contemporaneously with the Closing, and with certain of the proceeds of
the transactions contemplated hereby, ShellCo shall acquire, directly or
indirectly, all (or substantially all) of the equity of each of FMI Holdco I,
LLC, a Delaware limited liability company headquartered at 800 Federal Blvd,
Carteret, New Jersey 07008 and certain of its parent companies (collectively,
"FMI"), and Clare Freight, Los Angeles, Inc. a California corporation
headquartered at 17979 Arenth Ave., City of Industry, CA 91748 and TUG New York,
Inc., a New York corporation headquartered at 13 Hendrickson Ave., Lynbrook, NY
11563 (the "TUG COMPANIES"), (collectively, "TUG", and together with FMI, the
"TARGETS") and substantially all of the assets of the TUG Logistics group of
companies, including TUG Logistics, Inc., a California corporation headquartered
at 17971 Arenth Ave., City of Industry, CA 91748, TUG Logistics (Miami), Inc. a
Florida corporation headquartered at 2801 NW 74 Ave., Suite 173, Miami, FL
33122, and Glare Logistics, Inc., a California corporation headquartered at
16905 South Keegan Ave., Carson, Los Angeles, CA 90746. (collectively, the
"TUG ASSETS", and the acquisition of the TUG Assets and the Targets,
collectively, the "ACQUISITIONS").
NOW, THEREFORE, the Company and each Buyer hereby agree as follows:
1. PURCHASE AND SALE OF COMMON SHARES AND WARRANTS.
(a) PURCHASE OF COMMON SHARES AND WARRANTS. Subject to the
satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below,
the Company shall use best efforts to cause ShellCo to issue and sell to each
Buyer, and each Buyer severally, but not jointly, agrees to purchase from
ShellCo on the Closing Date (as defined below), the number of Common Shares set
forth opposite such Buyer's name in column (3) on the Schedule of Buyers, along
with Warrants to acquire up to that number of Warrant Shares as is set forth
opposite such Buyer's name in column (4) on the Schedule of Buyers (the
(b) CLOSING. The date and time of the Closing (the "CLOSING DATE")
shall be 10:00 a.m., New York City time, on a date mutually agreed to by the
Company and Buyers holding the right to purchase not less than 66-2/3% of the
Shares to be sold hereunder, such Closing Date to be as soon as practicable
following satisfaction (or waiver) of the conditions to the Closing set forth in
Sections 6 and 7 below at the offices of Schulte Roth & Zabel LLP, 919 Third
Avenue, New York, New York 10022.
(c) PURCHASE PRICE. The purchase price for the Common Shares and
related Warrants to be purchased by each Buyer at the Closing shall be the
amount set forth opposite such Buyer's name in column (5) of the Schedule of
Buyers (the "PURCHASE PRICE") which shall be equal to the amount of $0.8908 per
Common Share and related Warrant, prior to the effectiveness of the reverse
stock split (the "REVERSE SPLIT") and $10.00 thereafter.
(d) FORM OF PAYMENT. On the Closing Date, (i) each Buyer shall pay
its respective Purchase Price to ShellCo, and/or one or more designees of
ShellCo for the Common Shares and Warrants to be issued and sold to such Buyer
at the Closing, by wire transfer of immediately available funds in accordance
with the Company's or ShellCo's written wire instructions, and (ii) the Company
shall use best efforts to cause ShellCo to deliver to each Buyer (A) one or more
stock certificates, with such restrictive and other legends as expressly
provided in Section 2(g) hereof, evidencing the number of Common Shares such
Buyer is purchasing as is set forth opposite such Buyer's name in column (3) of
the Schedule of Buyers and (B) a Warrant pursuant to which such Buyer shall have
the right to acquire such number of Warrant Shares as is set forth opposite such
Buyer's name in column (4) of the Schedule of Buyers, in all cases duly executed
on behalf of ShellCo and registered in the name of such Buyer.
2. BUYER'S REPRESENTATIONS AND WARRANTIES.
Each Buyer represents and warrants in respect of only itself that:
(a) NO PUBLIC SALE OR DISTRIBUTION. Such Buyer is (i) acquiring the
Common Shares and the Warrants and (ii) upon exercise of the Warrants will
acquire the Warrant Shares issuable upon exercise thereof, in the ordinary
course of business for its own account and not with a view towards, or for
resale in connection with, the public sale or distribution thereof,