RESTRICTED SHARE AWARD AGREEMENT
PURSUANT TO THE
GEOLOGISTICS CORPORATION
1999 LONG-TERM INCENTIVE PLAN
* * * * *
PARTICIPANT: ROBERT AROVAS
GRANT DATE: March 1, 2000
NUMBER OF
RESTRICTED SHARES GRANTED: 25,000
* * * * *
THIS AWARD AGREEMENT (this "Agreement"), dated as of the Grant
Date specified above, is entered into by and between GeoLogistics Corporation
(the "Company"), and the Participant specified above, pursuant to the
GeoLogistics Corporation 1999 Long-Term Incentive Plan as in effect and as
amended from time to time (the "Plan"); and
WHEREAS, it has been determined under the Plan that it would
be in the best interests of the Company to grant the Restricted Shares provided
herein to the Participant (i) as an inducement to commence employment with, or
to remain in the employment of, the Company (and/or one of its Subsidiaries),
and (ii) as an incentive for increased effort during such service;
NOW, THEREFORE, in consideration of the mutual covenants and
premises hereinafter set forth and for other good and valuable consideration,
the parties hereto hereby mutually covenant and agree as follows:
1. INCORPORATION BY REFERENCE; PLAN DOCUMENT RECEIPT. This Agreement is
subject in all respects to the terms and provisions of the Plan (including,
without limitation, any amendments adopted at any time and from time to time and
which are expressly intended to apply to the grant of the award provided for
herein), all of which terms and provisions are made a part of and incorporated
in this Agreement as if they were expressly set forth herein. The Company
acknowledges and expressly agrees that no amendment or modification to the Plan
or this Agreement which materially and adversely affects the rights of the
Participant hereunder shall be effective without the written consent of the
Participant. Any capitalized term not defined in this Agreement shall have the
same meaning as is ascribed thereto in the Plan. The Participant hereby
acknowledges receipt of a true copy of the Plan and that the Participant has
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read the Plan carefully and fully understands its content. In the event of a
conflict between the terms of this Agreement and the terms of the Plan, the
terms of the Plan shall control.
2. GRANT OF RESTRICTED SHARE AWARD.
2.1 The Company hereby grants to the Participant, as of the
Grant Date specified above, the number of Restricted Shares specified above. In
the event of any change in capitalization affecting the Common Stock of the
Company, including without limitation, any distribution, stock split, reverse
stock split, recapitalization, consolidation, subdivision, split-up, spin-off,
combination or exchange of shares or other reorganization or recapitalization,
the number of Restricted Shares subject to this Agreement shall be increased or
decreased, as appropriate, to reflect such change in capitalization of the
Common Stock of the Company to the same extent as other shares of Common Stock
of the Company were affected by such change in capitalization. Except as
otherwise provided herein by Section 10.2 of the Plan, the Participant agrees
and understands that nothing contained in this Agreement provides, or is
intended to provide, the Participant with any protection against potential
future dilution of the Participant's stockholder interest in the Company for any
reason.
2.2 Pursuant to Section 6.5 and Section 7 of the Plan,
Participant shall have, with respect to shares of Common Stock underlying the
Restricted Shares subject to this Agreement, the right to receive, at such time
as the Restricted Shares become unrestricted and vested pursuant to the terms of
this Agreement, any dividends paid in respect of Restricted Shares prior to the
time such Restricted Shares become unrestricted and vested; provided however,
that the Participant's right to receive any such dividends or distributions paid
in respect of the Restricted Shares shall terminate if the Restricted Shares are
forfeited or lapse pursuant to the terms of this Agreement.
3. VESTING.
3.1 The Restricted Shares subject to this grant shall become
unrestricted and vested immediately upon the earliest to occur of (a) the
termination of the Participant's employment with the Company without Cause (as
defined in that certain Employment Agreement between the Company and the
Participant, dated as of the date hereof) (the "Employment Agreement"), (b) the
termination of the Participant's employment with the Company due to the
Participant's resignation for Good Reason (as defined in the Employment
Agreement), (c) an Initial Public Offering that is consummated no later than the
date that is three (3) years from the Grant Date, (d) a Change of Control that
is consummated no later than the date that is three (3) years from the Grant
Date or (e) the date that is three (3) years from the Grant Date (each of
clauses (a), (b), (c), (d) and (e) of this Section 3.1 shall be referred to
herein as a "Vesting Event"); provided that, except as expressly provided in
Section 3.1.1 hereof, with respect to the Vesting Events described in clauses
(c), (d) and (e) of this Section 3.1, the Participant must be employed by the
Company or a Subsidiary on the date of such Vesting
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Event. Notwithstanding any provision of the Plan to the contrary, the Restricted
Shares may become vested and unrestricted prior to the date that is six (6)
months following the Grant Date, and with respect to the vesting of the
Restricted Shares, this Section 3 shall control.
3.1.1 If the Participant's employment with the
Company and/or its Subsidiaries terminates due to the Participant's
death or Disability (as defined in the Employment Agreement) prior to
the occurrence of a Vesting Event with respect to the Restricted
Shares, then the Participant (or the Participant's estate, designated
beneficiary or other legal representative) shall forfeit any rights or
interests in the number of the Restricted Shares (and such number of
the Restricted Shares shall immediately be cancelled) calculated as the
product of (i) 25,000 and (ii) a fraction, the numerator of which is
(x) the number of full calendar months remaining between the date of
such termination and June 15, 2002 and (y) the denominator of which is
thirty-six (36). The Participant (or the Participant's estate,
designated beneficiary or other legal representative) shall retain the
rights or interests in the number of Restricted Shares (the "Retained
Restricted Shares") not forfeited pursuant to the preceding sentence of
this Section 3.1.1, and such Retained Restricted Shares shall become
unrestricted and vested only upon the occurrence of a Change of Control
or Initial Public Offering pursuant to the terms of Sections 3.4 and
3.5 of this Agreement so long as such Change of Control or Initial
Public Offering has occurred no later than three (3) years from the
Grant Date, and if such Change of Control or Initial Public Offering
shall not have occurred prior to the date that is three (3) years from
the Grant Date, then such Retained Restricted Shares shall immediately
be cancelled and the Participant (and such Participant's estate,
designated beneficiary or other legal representative) shall forfeit any
rights or interests in and with respect to any such Retained Restricted
Shares. Notwithstanding the provisions of this Section 3.1.1, all
Restricted Shares subject to this grant shall become unrestricted and
vested upon the happening of a Change of Control or Initial Public
Offering within ninety calendar (90) days of the termination of the
Participant's employment with the Company and/or its Subsidiaries due
to the Participant's death or Disability so long as such Change of
Control or Initial Public Offering has occurred no later than three (3)
years from the Grant Date.
3.2 TERMINATION AS A RESULT OF A CHANGE OF CONTROL. Anything
in this Agreement or in the Plan to the contrary notwithstanding, if a Change of
Control occurs and if the Participant's employment is terminated before such
Change of Control and it is reasonably demonstrated by the Participant that such
employment termination (a) was at the request, directly or indirectly, of a
third party who has taken steps reasonably calculated to effect the Change of
Control, or (b) otherwise arose in connection with or in anticipation of the
Change of Control, then for purposes of this Section 3, the Change of Control
shall be deemed to have occurred immediately prior to such Participant's
employment termination.
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3.3 CERTIFICATES AFTER VESTING EVENT. Notwithstanding anything
to the contrary in this Agreement or in the Plan, within thirty (30) days after
the happening of a Vesting Event, the holder of an Award of Restricted Shares
vested under Section 3.1 or 3.2 above shall receive a new certificate for such
shares without the legend set forth in Section 6 of the Plan.
3.4 CHANGE OF CONTROL. For the purpose of this Agreement,
"Change of Control" shall mean:
3.4.1 (a) The acquisition, after the Grant Date
specified above with respect to the Restricted Shares, by an individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 50% or more of either (i) the shares of the Common Stock,
or (ii) the combined voting power of the voting securities of the Company
entitled to vote generally in the election of directors (the "Voting
Securities") at a per share valuation of the Common Stock at the Target Price or
(b) the sale of all or substantially all of the assets of the Company at a price
that, after taking into effect the Company's fixed and contingent debts,
liabilities and obligations and all amounts payable by the Company with respect
to the aggregate liquidation preference and accrued and unpaid dividends on
outstanding shares of preferred stock would result in a per share valuation of
the Common Stock at the Target Price; provided, however, that the following
acquisitions shall not constitute a Change of Control: (1) any acquisition by
any individual or entity (including any entity the investment adviser or general
partner of which is either William E. Simon & Sons, LLC or Oaktree Capital
Management, LLC) who, on the effective date of the Plan beneficially owned 10%
or more of the Common Stock, (2) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any Subsidiary, (3)
any acquisition by any underwriter in connection with any firm commitment
underwriting of securities to be issued by the Company, or (4) any acquisition
by any corporation if, immediately following such acquisition, more than 50% of
the then outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
(entitled to vote generally in the election of directors), is beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who, immediately prior to such acquisition, were the beneficial
owners of the Common Stock and the Voting Securities; or
3.4.2 Consummation by the Company of a
reorganization, merger or consolidation at a value per share of Common Stock of
the Company at the Target Price, other than a reorganization, merger or
consolidation with respect to which all or substantially all of the individuals
and entities who were the beneficial owners, immediately prior to such
reorganization, merger or consolidation, of the Common Stock and Voting
Securities beneficially own, directly or indirectly, immediately after such
reorganization, merger or consolidation more than 50% of the then outstanding
common stock and voting securities (entitled to vote generally in the election
of directors) of the corporation resulting from such
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reorganization, merger or consolidation. As used herein, "Target Price" shall
mean a value per share of Common Stock of the Company equal to or greater than
$30.00.
3.5 INITIAL PUBLIC OFFERING. For the purpose of this
Agreement, "Initial Public Offering" shall mean a completed underwritten initial
public offering by the Company of Common Stock pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), other than a public offering registered on Form S-8 or Form
S-4 under the Securities Act or a successor form thereto, that results in net
proceeds of at least $30.0 million to the Company. As used herein, "net
proceeds" shall mean the proceeds received by the Company from an Initial Public
Offering after deducting underwriting discounts, commissions and the expenses
incurred by the Company related to such offering.
4. REPURCHASE PROVISIONS APPLICABLE TO RESTRICTED SHARES.
4.1 REPURCHASE RIGHT IN CASE OF TERMINATION. If
the Participant's employment with the Company and its Subsidiaries terminates
for any reason whatsoever, including, without limitation, death, Disability,
resignation, Retirement or termination with or without cause and the Restricted
Shares are or become vested pursuant to the terms of this Agreement, the Company
or its designee(s) (which designee(s) may be any person or entity that shall
have been approved by the Board) shall have the exclusive and irrevocable option
(a "call"), exercisable in its sole discretion, to repurchase, in whole or in
part, the Restricted Shares that are then owned and have not been forfeited by
the Participant. The Company may exercise the call for all or any portion of the
Restricted Shares subject to such repurchase hereunder by delivering written
notice (a "Repurchase Notice"), to the Participant, within sixty (60) days of
the later of the Participant's date of termination or the event giving rise to
the vesting of the Restricted Shares. The Repurchase Notice will set forth the
number of Restricted Shares to be acquired from the Participant, the aggregate
consideration to be paid for such shares and the time and place for the closing
of the transaction, which shall not be earlier than the date of such notice. The
Participant shall be obligated to resell the Restricted Shares as provided in
this Section 4 in response to an exercise by the Company of its call under this
Section 4.
The consummation of the repurchase of such Restricted Shares
pursuant to the Company's exercise of its call shall take place on the date and
in the manner designated by the Company in the Repurchase Notice, which date
shall not be more than thirty (30) days after the delivery of the Repurchase
Notice; provided, however, that the Company may consummate its repurchase of
such Restricted Shares pursuant to its exercise of its call by delivering
payment for such Restricted Shares being repurchased by it along with the
Repurchase Notice. The Company will pay for the Restricted Shares to be
repurchased by it pursuant to the exercise of a call by delivery of a certified
check in an amount equal to the applicable repurchase price for the Restricted
Shares being repurchased. The Company will, in connection with such repurchase,
be entitled to receive customary representations and warranties from the
Participant regarding such sale and to require that the Participant's signatures
be guaranteed.
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4.2 REPURCHASE PRICE. The purchase price per
share for any Restricted Shares purchased pursuant to Section 4.1 above shall be
equal to the Fair Market Value of such Restricted Shares. If Participant objects
to the determination of Fair Market Value by the Board, the Participant may
cause the Company to obtain a determination of Fair Market Value by an
independent investment bank selected by the Company, subject to the
Participant's approval, which approval shall not be unreasonably withheld or
delayed. If (a) the independent investment bank's determination of the fair
market value of the Restricted Shares exceeds the Fair Market Value as
determined by the Board (such excess being the "Excess Amount") by more than ten
(10) percent and (b) the fees, expenses and other costs (the "Appraisal Cost")
of the independent investment bank's determination are less than the Excess
Amount, then the Appraisal Costs shall be borne by the Company; in all other
instances, the Appraisal Costs shall be borne by the Participant.
5. DELIVERY OF RESTRICTED SHARES; FORFEITURE EVENTS.
5.1 Subject to Section 6.4 of the Plan, after the lapse of the
restrictions in respect of a grant of Restricted Shares, the Participant shall
be entitled to receive unrestricted shares of Common Stock.
5.2 Unless otherwise provided in this Agreement, this
Restricted Share Award shall terminate and be of no force or effect if the
Participant's employment with the Company and/or its Subsidiaries terminates as
a result of resignation (other than for Good Reason), Retirement or termination
with Cause (as such terms are defined in the Employment Agreement) prior to the
satisfaction and/or lapse of the restrictions and/or other terms and conditions
applicable to a grant of Restricted Shares, such Restricted Shares shall
immediately be cancelled and the Participant (and such Participant's estate,
designated beneficiary or other legal representative) shall forfeit any rights
or interests in and with respect to any such Restricted Shares.
6. NON-TRANSFERABILITY. Restricted Shares, and any rights and interests
with respect thereto, issued under this Agreement and the Plan shall not, prior
to vesting, be sold, exchanged, transferred, assigned or otherwise disposed of
in any way by the Participant (or any beneficiary(ies) of the Participant),
other than by testamentary disposition by the Participant or the laws of descent
and distribution. Any such Restricted Shares, and any rights and interests with
respect thereto, shall not, prior to vesting, be pledged, encumbered or
otherwise hypothecated in any way by the Participant (or any beneficiary(ies) of
the Participant) and shall not, prior to vesting, be subject to execution,
attachment or similar legal process. Any attempt to sell, exchange, transfer,
assign, pledge, encumber or otherwise dispose of or hypothecate in any way any
of the Restricted Shares, or the levy of any execution, attachment or similar
legal process upon the Restricted Shares, contrary to the terms and provisions
of this Agreement and/or the Plan shall be null and void and without legal force
or effect.
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7. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter
contained herein, and supersedes all prior agreements or prior understandings,
whether written or oral, between the parties relating to such subject matter.
This Agreement may only be modified or amended by a writing signed by both the
Company and the Participant.
8. NOTICES. Any notice which may be required or permitted under this
Agreement shall be in writing and shall be delivered in person, or via facsimile
transmission, overnight courier service or certified mail, return receipt
requested, postage prepaid, properly addressed as follows:
If such notice is to the Company, to the attention of the
Secretary of GeoLogistics Corporation, 13952 Denver West Parkway, Suite 150,
Golden, Colorado 80401, or at such other address as the Company, by notice to
the Participant, shall designate in writing from time to time; and
If such notice is to the Participant, at his or her address as
shown on the Company's records, or at such other address as the Participant, by
notice to the Company, shall designate in writing from time to time, with a copy
to the Participant's legal counsel at such address as the Participant, by notice
to the Company, shall designate in writing from time to time.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to the
principles of conflict of laws thereof.
10. COMPLIANCE WITH LAWS. The issuance of the Restricted Shares or
Common Stock pursuant to this Agreement shall be subject to, and shall comply
with, any applicable requirements of any federal and state securities laws,
rules and regulations (including, without limitation, the provisions of the
Securities Act, the Exchange Act and the respective rules and regulations
promulgated thereunder) and any other law or regulation applicable thereto. The
Company shall not be obligated to issue any of the Restricted Shares or Common
Stock pursuant to this Agreement if such issuance would violate any such
requirements.
11. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall inure to the
benefit of, be binding upon, and be enforceable by the Company and its
successors and assigns. The Participant shall not assign any part of this
Agreement without the prior express written consent of the Company.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
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13. HEADINGS. The titles and headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
14. FURTHER ASSURANCES. Each party hereto shall do and perform (or
shall cause to be done and performed) all such further acts and shall execute
and deliver all such other agreements, certificates, instruments and documents
as any other party hereto reasonably may request in order to carry out the
intent and accomplish the purposes of this Agreement and the Plan and the
consummation of the transactions contemplated thereunder. The Company
acknowledges and agrees that the Participant's obligations under this Section 14
shall be limited to the obligations of a participant in the Plan set forth in
Section 9 and 12.6 of the Plan.
15. SEVERABILITY. The invalidity or unenforceability of any provisions
of this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of any provision of this Agreement in any
other jurisdiction, it being intended that all rights and obligations of the
parties hereunder shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officer, and the Participant has hereunto set
his hand, all as of the Grant Date specified above.
GEOLOGISTICS CORPORATION
By: _____________________________
Name:
Title:
_____________________________