0001144204-11-054870.txt : 20110927 0001144204-11-054870.hdr.sgml : 20110927 20110926190523 ACCESSION NUMBER: 0001144204-11-054870 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20110927 DATE AS OF CHANGE: 20110926 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Burns Gregory Edmund CENTRAL INDEX KEY: 0001349802 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 330 MADISON AVENUE STREET 2: 6TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Clark Holdings Inc. CENTRAL INDEX KEY: 0001338401 STANDARD INDUSTRIAL CLASSIFICATION: TRANSPORTATION SERVICES [4700] IRS NUMBER: 432089172 STATE OF INCORPORATION: DE FISCAL YEAR END: 1229 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-81635 FILM NUMBER: 111108131 BUSINESS ADDRESS: STREET 1: 121 NEW YORK AVENUE CITY: TRENTON STATE: NJ ZIP: 08638 BUSINESS PHONE: (609) 396-1100 MAIL ADDRESS: STREET 1: 121 NEW YORK AVENUE CITY: TRENTON STATE: NJ ZIP: 08638 FORMER COMPANY: FORMER CONFORMED NAME: Global Logistics Acquisition CORP DATE OF NAME CHANGE: 20050912 SC 13D/A 1 v235724_sc13da.htm Unassociated Document

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

SCHEDULE 13D/A
[Rule 13d-101]

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)

(Amendment No. 5)*

CLARK HOLDINGS INC.
(Name of Issuer)

Common Stock, par value $0.0001 per share
(Title of Class of Securities)

18145M 109
(CUSIP Number)

Gregory E. Burns
330 Madison Avenue, Sixth Floor
New York, New York 10017
(646) 495-5155
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

September 1, 2011
(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. ¨

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

___________________
* The remainder of this cover page shall be filled out for a reporting person=s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information that would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 
 
 

CUSIP No. 18145M 109
SCHEDULE 13D/A
Page 2 of 8 Pages

1      NAMES OF REPORTING PERSONS
   
 
Gregory E. Burns
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(see instructions)
 
(a)    ¨
(b)    ¨
3
SEC USE ONLY
 
4
SOURCE OF FUNDS (see instructions)
 
PF
5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)
 
  
        ¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
United States
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
7
SOLE VOTING POWER
 
2,583,549
8
SHARED VOTING POWER
 
0
9
SOLE DISPOSITIVE POWER
 
2,583,549
10
SHARED DISPOSITIVE POWER
 
0
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,583,549
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (see instructions)
 
 
 
  ¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
21.3%
14
TYPE OF REPORTING PERSON (see instructions)
 
IN

 
2
 

CUSIP No. 18145M 109
SCHEDULE 13D/A
Page 3 of 8 Pages
 
This Amendment No. 5 (this “Amendment”) to Schedule 13D is filed by Gregory E. Burns with respect to ownership of the common stock, par value $0.0001 per share (“Common Stock”), of Clark Holdings Inc., a Delaware corporation (the “Issuer”). This Amendment amends and/or supplements the Schedule 13D filed on March 17, 2008 (the “Original Statement”), as previously amended on September 17, 2008, September 24, 2008, September 29, 2008 and February 18, 2011 (the “Prior Amendments,” and the Original Statement, as amended and/or supplemented by the Prior Amendments and this Amendment, this “Statement”).
 
Except as amended and/or supplemented by this Amendment, the Original Statement, as amended by the Prior Amendments, remains unchanged. All capitalized terms used but not defined in this Amendment are defined in the Original Statement and the Prior Amendments. The summary descriptions (if any) contained in this Amendment are qualified in their entirety by reference to the complete text of such agreements and documents filed as exhibits hereto or incorporated herein by reference.
 
The percentage of beneficial ownership reflected in this Statement is based upon 12,032,193 shares of Common Stock outstanding as of August 12, 2011.
 
Item 2.
Identity and Background.
 
Item 2 is amended by supplementing it with the following:
 
The person filing this Statement is Gregory E. Burns. Mr. Burns’ business address is 373 Park Avenue South, 6th Floor, New York, NY 10016. Mr. Burns is a member of the board of directors and chief executive officer of the Issuer. Mr. Burns is also president of Blue Line Advisors, Inc., a strategic consulting firm that focuses on companies in the transportation and logistics sector. Blue Line Advisors is located at 373 Park Avenue South, 6th Floor, New York, NY 10016.
 
Mr. Burns has not, during the past five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). Mr. Burns has not, during the past five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
Mr. Burns is a citizen of the United States.
 
Item 4.
Purpose of Transaction.
 
Item 4 is amended by supplementing it with the following:
 
Mr. Burns acquired the securities described in this Statement for investment purposes. Mr. Burns may from time to time acquire additional securities for investment purposes, or dispose of securities, in the open market or in private transactions. Furthermore, Mr. Burns holds an option to purchase 10,000 shares of Common Stock at an exercise price of $4.06 per share and an option to purchase 150,000 shares of Common Stock at an exercise price of $0.69 per share (together, the “Stock Options”). The Stock Option for 10,000 shares of Common Stock, which is currently exercisable, expires on March 12, 2018 and the Stock Option for 150,000 shares of Common Stock, which is currently exercisable as to 100,000 shares, expires on February 8, 2019.

 
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CUSIP No. 18145M 109
SCHEDULE 13D/A
Page 4 of 8 Pages
 
As previously announced by the Issuer, on September 1, 2011, the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Gores Logistics Holdings, LLC (“Parent”), a Delaware limited liability company and an affiliate of The Gores Group, LLC (“The Gores Group”), and Gores Logistics Sub, Inc. (“Merger Sub”), a Delaware corporation and a wholly owned subsidiary of Parent.
 
The Merger Agreement provides that, upon the terms and subject to the conditions set forth therein, Merger Sub will be merged with and into the Issuer, with the Issuer continuing as the surviving corporation (the “Merger”). If the Merger is consummated:
 
 
·
By virtue of the Merger, all of the outstanding shares of Common Stock of the Issuer, including those beneficially owned by Mr. Burns, but other than treasury shares, shares held by Parent, Merger Sub or any other direct or indirect wholly owned subsidiary of Parent or Issuer and shares held by stockholders who perfect their appraisal rights, will be cancelled and converted into the right to receive $0.46 in cash (the “Merger Consideration”). Each outstanding share of common stock of Merger Sub will be converted into one outstanding share of Common Stock of the Issuer. Following the Merger, Parent intends to terminate the listing of the Issuer’s Common Stock on the NYSE Amex, LLC and to terminate the registration of its Common Stock pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended. As a result, the Issuer will become a private company and a wholly owned subsidiary of Parent.
 
 
·
Immediately prior to the effective time of the Merger, all of the options issued under the Issuer’s 2007 Long-Term Incentive Equity Plan, including the Stock Options beneficially owned by Mr. Burns, will become fully vested and exercisable. By virtue of the Merger, such stock options, including the Stock Options beneficially owned by Mr. Burns, will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the Merger Consideration less the applicable per-share exercise price of such stock option multiplied by (ii) the number of shares of Clark common stock issuable upon the exercise of such stock option. Because the exercise prices of the Stock Options are greater than $0.46, Mr. Burns will receive no consideration for the Stock Options beneficially owned by him.
 
 
·
Merger Sub’s board of directors will become the board of directors of the Issuer. The Issuer’s executive officers will remain as the executive officer’s of the Issuer, with certain exceptions, including that Mr. Burns will resign as the chief executive officer of the Issuer.
 
 
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CUSIP No. 18145M 109
SCHEDULE 13D/A
Page 5 of 8 Pages
 
 
·
The certificate of incorporation and bylaws of Merger Sub will become the certificate of incorporation and bylaws of the Issuer.
 
The obligations of the Issuer, on one hand, and Parent and Merger Sub, on the other hand, to consummate the Merger are subject to certain conditions to closing, including, among others, (i) the adoption of the Merger Agreement by the Issuer’s stockholders, (ii) the absence of any law, order or other action enjoining or otherwise prohibiting consummation of the Merger, (iii) the accuracy of the parties’ respective representations and warranties, and (iv) the parties’ respective compliance with agreements and covenants contained in the Merger Agreement. The obligations of Parent and Merger Sub to consummate the Merger are subject to further conditions to closing, including (a) the absence of a Company Material Adverse Effect (as defined in the Merger Agreement); and (b) the absence of any pending or threatened legal proceedings that could reasonably be expected to have a Company Material Adverse Effect, not otherwise covered by insurance.
 
Upon termination of the Merger Agreement in certain specified circumstances, including a termination by the Issuer to enter into an alternative acquisition agreement for a superior proposal, the Issuer will be required to pay Parent a termination fee equal to $194,000 and/or reimburse Parent’s expenses up to $175,000. Upon termination of the Merger Agreement by the Issuer in certain other circumstances, including a failure by Parent to consummate the Merger after all of the conditions to closing have been met (other than conditions that by their nature are to be satisfied at the closing), Parent will be required to pay Clark a reverse termination fee equal to $194,000.
 
Because the merger will constitute a "change of control transaction" as defined under the Stockholder Escrow Agreement, dated February 12, 2008, by and among the Issuer, the parties listed under Stockholders on the signature page thereto and The Bank of New York, as escrow agent, 306,250 shares of Common Stock beneficially owned by Mr. Burns will be released from escrow upon consummation of the Merger and Mr. Burns will receive the Merger Consideration for such shares as described above.
 
As a condition to Parent and Merger Sub entering into the Merger Agreement, Mr. Burns, along with certain of the Issuer’s other executive officers and all of the Issuer’s other directors (collectively, the “Stockholders”), entered into a Voting Agreement, dated as of September 1, 2011, with Parent (the “Voting Agreement”). The Voting Agreement provides that the Stockholders will vote all of the Common Stock beneficially owned (as defined under Rule 13d-3 of the Securities Exchange Act of 1934, as amended) by them, whether now owned or hereafter acquired, in favor of the adoption and approval of the Merger Agreement and against any proposal for an extraordinary corporate transaction which would be reasonably likely to prevent consummation of the Merger. In the Voting Agreement, Victor Otley, Lindsay Wynter and Thomas A. Waldman are named as proxies for voting of the shares of Common Stock held by the Stockholders on matters related to the Merger Agreement and the transactions contemplated by such Merger Agreement. The Stockholders may not, and may not offer or agree to, sell, transfer, tender, assign, hypothecate or otherwise dispose of their shares of Common Stock, or create or permit to exist any security interest, lien, claim, pledge, option, right of first refusal, agreement, limitation on the their voting rights, charge or other encumbrance of any nature whatsoever with respect to their shares of Common Stock. The provisions of the Voting Agreement will not be deemed to restrict the right of the Stockholders to act in their capacity as officers and directors of the Issuer consistent with their fiduciary obligations in such capacity. The Voting Agreement will terminate on the earlier to occur of (i) the effective time of the Merger, (ii) the termination of the Merger Agreement in accordance with its terms, and (iii) any material amendment (including to the price) of the Merger Agreement that is adverse to the Stockholders.

 
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CUSIP No. 18145M 109
SCHEDULE 13D/A
Page 6 of 8 Pages
 
The foregoing descriptions of the Merger Agreement and the Voting Agreement are not complete and are subject to and qualified in their entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 of the Issuer’s Current Report on Form 8-K filed on September 2, 2011, and the Voting Agreement, a copy of which is filed as Exhibit 2 of this Amendment, which are incorporated herein by reference.
 
Item 5.
Interest in Securities of the Issuer.
 
Item 5 is amended by supplementing it with the following:
 
As of the date of this Amendment, Mr. Burns is the beneficial owner of 2,583,549 shares of Common Stock of the Issuer, representing 21.3% of the outstanding Common Stock. This amount represents (i) 2,473,549 shares of Common Stock held by Mr. Burns, and (ii) 110,000 shares of the Issuer’s Common Stock issuable upon the exercise of Stock Options held by Mr. Burns, which options are currently exercisable as to such number of shares. Mr. Burns has sole voting and dispositive power over all 2,583,549 shares. This amount does not include 50,000 shares of Common Stock issuable upon the exercise of a Stock Option held by Mr. Burns, which option is not currently exercisable as to such number of shares and will not become exercisable as to such number of shares within 60 days.
 
In the 60 days prior to the date of this Amendment, except as otherwise set forth herein, Mr. Burns has not effected any transactions in the Common Stock of the Issuer.
 
Item 6.
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
 
Item 6 is amended by supplementing it with the following:
 
The information set forth under Item 4 is incorporated herein by reference.
 
Item 7.
Material to be Filed as Exhibits.
 
Item 7 is amended by supplementing it with the following:
 
Exhibit 1
Agreement and Plan of Merger, dated as of September 1, 2011, by and among Clark Holdings Inc., Gores Logistics Holdings, LLC, and Gores Logistics Sub, Inc.*
 
Exhibit 2
Voting Agreement, dated as of September 1, 2011, by and among Gores Logistics Holdings, LLC and the persons and entities listed on Exhibit A thereto.
 
 
6
 
 
CUSIP No. 18145M 109
SCHEDULE 13D/A
Page 7 of 8 Pages
 
*
Incorporated by reference from Exhibit 2.1 of the Issuer’s Current Report on Form 8-K filed on September 2, 2011.

 
7
 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 26, 2011

 
/s/ Gregory E. Burns
  
 
Gregory E. Burns
  

 
8
 
 
 EX-2 2 v235724_ex2.htm
EXECUTION COPY

VOTING AGREEMENT

VOTING AGREEMENT, dated as of September 1, 2011 (this "Agreement"), among Gores Logistics Holdings, LLC ("Parent"), and the persons and entities listed on Exhibit A hereto (collectively, the "Stockholders").

WHEREAS, Parent proposes to enter into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger Agreement"), by and among Parent, its subsidiary Gores Logistics Sub, Inc. (“Merger Sub”), and Clark Holdings, Inc. (the “Company”), pursuant to which Merger Sub would merge with and into the Company (the “Merger”) and the Stockholders and the other stockholders in the Company would receive in exchange for each share of Company Common Stock, $0.46 in cash; and

WHEREAS, as of the date hereof, the Stockholders own (both beneficially and of record) the shares of Common Stock, par value $0.0001 per share, of the Company ("Company Common Stock") shown on the attached Exhibit A opposite their name; and

WHEREAS, as a condition to the willingness of Parent to enter into the Merger Agreement, Parent has required that the Stockholders agree, and in order to induce Parent to enter into the Merger Agreement the Stockholders have agreed, to vote their shares in favor of the Merger and appoint certain persons affiliated with Parent as their attorney and proxy, in accordance with the terms of this Agreement, in respect of shares of Company Common Stock owned by the Stockholders (the "Shares");

WHEREAS, the Company’s Board of Directors has been informed of the decision of the Stockholders to enter into this Agreement and is recommending that the Stockholders approve the Merger;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

VOTING AGREEMENT AND PROXY OF THE STOCKHOLDERS

1.1           Voting of the Shares.  Each Stockholder hereby agrees that during the period commencing on the date hereof (the “Effective Date”) and continuing until the termination of this Agreement as specified in Article III hereof (the "Termination Date"), at any meeting of the holders of Company Common Stock, however called, or in connection with any written consent of the holders of Company Common Stock, such Stockholder shall vote (or cause to be voted) the Company Common Stock held of record or Beneficially Owned (as defined herein) by such Stockholder, whether heretofore owned or hereafter acquired, (i) for the Merger and the adoption and approval of the Merger Agreement and the transactions contemplated by the Merger Agreement and (ii) against any proposals for any merger, consolidation, sale or purchase of any assets, reorganization, recapitalization, amendment of the articles of incorporation or bylaws, change in the board of directors, liquidation or winding up of or by the Company or any other extraordinary corporate transaction which shall be reasonably likely to prevent the consummation of the Merger or the other transactions contemplated by the Merger Agreement.  Each Stockholder, in his, her or its capacity as a Stockholder only, further agrees not to commit or agree to take any action inconsistent with the foregoing.  Nothing in this Agreement will be deemed to restrict or limit the right of the Stockholder or any affiliate of the Stockholder to act in his, her or its capacity as an officer or director of the Company consistent with his, her or its fiduciary obligations in such capacity, if advised by counsel such action is required under applicable law.
 
 
 
 
 
For purposes of this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any securities shall mean having "beneficial ownership" of such securities (as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

1.2           Proxy.  The Stockholders hereby irrevocably appoint Victor Otley, Lindsay Wynter and Thomas A. Waldman (collectively the “Proxy Holders”), until the earlier to occur of the Effective Time (as defined in the Merger Agreement) or the Termination Date, as their limited attorney-in-fact and proxy, with full power of substitution, for and on behalf of the Stockholders, with authority and direction only to vote the Shares and all other voting securities of the Company that the Stockholders are entitled to vote (at any meeting of stockholders of the Company, whether annual or special and whether or not an adjourned or postponed meeting, or by consent in lieu of any such meeting or otherwise) for the Merger and the adoption and approval of the Merger Agreement and the transactions contemplated by the Merger Agreement, and against any proposal that the Proxy Holders deem to be reasonably likely to prevent the consummation of the Merger and the transactions contemplated by the Merger Agreement.  This Agreement confers no other authority to vote on any other matters.  The proxy and power of attorney granted pursuant to this Agreement is irrevocable and coupled with an interest and cannot be terminated by any act of the Stockholders, including but not limited to the death of any individual Stockholder, or by operation of law, by lack of appropriate power or authority, or by the occurrence of any other event or events (except the occurrence of the Termination Date) and shall be binding upon all successors, assigns and legal representatives of the Stockholders.  No subsequent proxy or power of attorney shall be given or written consent executed (and if given or executed, shall not be effective) by the Stockholders with respect thereto.  The proxy granted hereby shall not be permitted to make a demand for appraisal rights with respect to the Shares pursuant to any dissenting stockholder or appraisal provision of applicable law.  Each Stockholder in his, her or its capacity as a Stockholder only, further agrees not to act, or to agree to take any action, inconsistent with the foregoing.  The proxy granted hereby includes the power to call, or, to the extent legally permissible, cause the Stockholders to call, a special meeting of stockholders of the Company to consider the Merger Agreement and the transactions contemplated thereby.
 
 
2
 
 
ARTICLE II

COVENANTS OF THE STOCKHOLDERS

2.1           No Disposition or Encumbrance of Shares.  The Stockholders hereby covenant and agree that, while this Agreement is in effect, except as contemplated by this Agreement, the Stockholders shall not, and shall not offer or agree to, sell, transfer, tender, assign, hypothecate or otherwise dispose of the Shares, or create or permit to exist any security interest, lien, claim, pledge, option, right of first refusal, agreement, limitation on the Stockholders' voting rights, charge or other encumbrance of any nature whatsoever ("Lien") with respect to the Shares.  The Stockholders further covenant and agree not to deposit any of the Shares into a voting trust or enter into any agreement (other than this Agreement), arrangement or understanding with any Person, directly or indirectly, to vote, grant any additional proxy or give instructions with respect to the voting of any the Shares.

For purposes of this Agreement, a “Person” is an individual, association, trust, corporation, partnership, limited liability company, governmental body or any other entity or person.

2.2           Pre-Closing Transfer Restrictions.  Except as permitted by this Agreement, each Stockholder agrees, in his, her or its capacity as a Stockholder only, that until the Termination Date, each Stockholder will not (i) sell, hypothecate, transfer, pledge, encumber, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or enter into any contract, option, put, call or other arrangement or understanding (including any profit sharing arrangement) with respect to the Transfer of any of the Shares to any Person, (ii) trade or take any position, hedge or otherwise, with respect to the Shares, (iii) enter into any voting arrangement or understanding, whether by proxy, voting agreement or otherwise, with respect to any of the Shares or (iv) take any action that would have the effect of preventing or impeding the Stockholders from performing any of their obligations under this Agreement.
 
 
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2.3           No Announcements; No Solicitation of Transactions. Subject to and without prejudice to their fiduciary obligations as employees, officers or directors of the Company and except as permitted by the Merger Agreement, each Stockholder agrees that between the date of this Agreement and the Termination Date, the Stockholder will not, and will use its reasonable efforts to cause its attorneys, accountants or financial advisors or other similar representatives or, in the case of a Stockholder that is an entity, its members, partners, directors, officers or employees, (“Representatives”) retained by it not to, directly or indirectly through another Person, (i) issue any press release or make any other public statement or announcement with respect to the Merger Agreement, this Agreement, the Merger or any of the transactions contemplated thereby or hereby, except as may be required by applicable law including without limitation through amendments to any applicable Schedule 13D or Schedule 13G filed with the Securities and Exchange Commission; (ii) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, or (iii) participate in any discussions or negotiations regarding any Acquisition Proposal; provided that the foregoing shall not limit or prohibit any Representative who is a director of the Company from exercising his or her fiduciary duty solely as a director of the Company in a manner consistent with the terms and conditions set forth in the Merger Agreement.

2.4           Dissenters’ Rights. Each Stockholder hereby irrevocably waives any and all rights which it may have as to appraisal, dissent or any similar or related matter with respect to any of the Stockholder’s Shares which may arise with respect to the Merger.

2.5           Officers and Directors. Notwithstanding anything contained to the contrary in this Agreement, in the event a Stockholder is a director or officer of the Company, nothing in this Agreement is intended or shall be construed to require such Stockholder, solely in his or her capacity as a director or officer of the Company, to act or fail to act in any manner inconsistent with his or her fiduciary duties in such capacity.  Furthermore, no Stockholder who is or becomes (during the term hereof) a director or officer of the Company makes any agreement or understanding herein solely in his or her capacity as a director or officer, and nothing herein will limit or affect, or give rise to any liability of any Stockholder solely in such Person's capacity as a director or officer of the Company.

ARTICLE III

TERMINATION

This Agreement shall terminate on the earliest to occur of (i) the Effective Time (as defined in the Merger Agreement) or, (ii) the termination of the Merger Agreement in accordance with its terms and (iii) any material amendment (including without limitation a decrease in or a change in the form of the consideration paid to stockholders or any addition of a material obligation or additional liability on the part of the Stockholder) to the Merger Agreement that is adverse to the Stockholders.  Nothing in this Article III shall relieve any party of liability for breach of this Agreement.
 
 
4
 
 
ARTICLE IV

MISCELLANEOUS

4.1           Ownership of Shares.  The Stockholder represents and warrants to Parent that as of the date hereof, the Stockholder is the record or beneficial owner of (a) the number of Shares set forth opposite the Stockholder’s name on Exhibit A hereto and (b) any shares of Company Common Stock added to the definition of “Shares” pursuant to Section 1.1, and is, and (subject to the last sentence of Section 4.1) throughout the term of this Agreement will be, the record and beneficial owner of such Shares, free and clear of all Liens.  Except as set forth on Exhibit A, the Shares owned by the Stockholder are owned free and clear of all Liens, other than any Liens created by this Agreement.  The Stockholder further represents and warrants to Parent that such Stockholder has the sole right and power to vote and dispose of the Shares, and none of the Shares is subject to any irrevocable proxy, power of attorney, voting trust or other agreement, arrangement or restriction with respect to the voting or transfer (other than the provisions of the Securities Act or state securities laws or as provided in this Agreement) of any of the Shares, which appointment or grant is still effective.

4.2           Third Party Beneficiary.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except that Merger Sub shall also be entitled to enforce the rights of Parent.

4.3           Further Assurances.  The Stockholders and Parent will execute and deliver all such further documents and instruments and take all such further action as may be reasonably necessary in order to consummate the transactions contemplated hereby.

4.4           Specific Performance.  The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.

4.5           Entire Agreement.  This Agreement constitutes the entire agreement among Parent and the Stockholders with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among Parent and the Stockholders with respect to the subject matter hereof.

4.6           Assignment.  This Agreement shall not be assigned by operation of law or otherwise.
 
 
5
 
 
4.7           Obligations of Successors.  This Agreement shall be binding upon, inure solely to the benefit of, and be enforceable by, the parties hereto and their successors, permitted assigns, heirs and beneficiaries.

4.8           Amendment; Waiver.  This Agreement may not be amended except by an instrument in writing signed by the parties hereto.  Nothing in this Agreement is intended to confer on the Stockholders any rights with respect to consent on amendments or waivers to the Merger Agreement entered into or given by Parent or the Company.

4.9           Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of this Agreement is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the terms of this Agreement remain as originally contemplated to the fullest extent possible.

4.10           Notices.  All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy, reputable overnight courier or by registered or certified mail (postage prepaid, return receipt requested) to the Stockholder at the address shown for a Stockholder on the books and records of Company, or Parent c/o The Gores Group, LLC, 6260 Lookout Road, Boulder, Colorado 80301, Attention:  Managing Director/CFO, telecopy (303) 531-1001.

4.11           Governing Law. The validity and interpretation of this Agreement shall be governed by the laws of the State of Delaware, without reference to the conflicts of law principles thereof.

4.12           Headings; Certain Defined Terms.  The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.  Capitalized terms used but not defined herein have the meanings given in the Merger Agreement.

4.13           Counterparts.  This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.  The signatures of the parties on this Agreement may be delivered digitally or by facsimile and any such digital copy or facsimile signature shall be deemed an original.
 
 
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4.14           Agreement Several Among Stockholders.  Parent and each Stockholder agree that no Stockholder shall be liable for any breach hereof by another Stockholder.
 
[Remainder of Page Intentionally Left Blank]
 
 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers or representatives as of the day and year first written above.

 
GORES LOGISTICS HOLDINGS, LLC
     
 
By:
/s/ Thomas A. Waldman
   
Name: Thomas A. Waldman
   
Title: VP and Secretary
 
 
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STOCKHOLDER:
   
 
/s/ Brian Bowers
 
Name: Brian Bowers

 
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STOCKHOLDER:
   
 
Gregory Burns
 
Name: Gregory Burns
 
 
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STOCKHOLDER:
   
 
Edward Cook
 
Name: Edward Cook
   

 
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STOCKHOLDER:
   
 
Robert LaRose
 
Name: Robert LaRose

 
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STOCKHOLDER:
   
 
Maurice Levy
 
Name: Maurice Levy

 
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STOCKHOLDER:
   
 
Donald McInnes
 
Name: Donald McInnes

 
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STOCKHOLDER:
   
 
Charles Fischer III
 
Name: Charles Fischer III

 
15
 

 
STOCKHOLDER:
   
 
Kevan Bloomgren
 
Name: Kevan Bloomgren

 
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EXHIBIT A

 
Name
  
Number of Shares
Beneficially Owned
  
Brian Bowers
     46,467  
Gregory Burns
     2,583,549  
Edward Cook
     90,529  
Robert LaRose
     5,000  
Maurice Levy
     92,450  
Donald McInnes
     86,929  
Charles Fischer III
     29,583  
Kevan Bloomgren
     10,000  

 
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