FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
CONSOLIDATED DELIVERY & LOGISTICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3350958
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
380 Allwood Road, Clifton, New Jersey 07012
(Address of principal executive offices; zip code)
------------------------
Consolidated Delivery & Logistics, Inc. Employee Stock Purchase Plan
(Full title of the plan)
Albert W. Van Ness, Jr.
Chairman of the Board
Consolidated Delivery & Logistics, Inc.
380 Allwood Road, Clifton, New Jersey 07012
(973) 471-1005
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
Alan Wovsaniker, Esq.
Lowenstein Sandler PC
65 Livingston Avenue
Roseland New Jersey 07068
(973) 992-8700
------------------------
Calculation of Registration Fee
<TABLE>
<S> <C> <C> <C> <C>
- ------------------------ ---------------------- ----------------------- ----------------------- ----------------------
Proposed Proposed
Title of Securities Amount to be Maximum Offering Maximum Aggregate Amount of
to be Registered Registered Price per Share (2) Offering Price (2) Registration Fee
- ------------------------ ---------------------- ----------------------- ----------------------- ----------------------
- ------------------------ ---------------------- ----------------------- ----------------------- ======================
Common Stock, par
value $.001 per share 500,000 shares (1) $4.25 $2,125,000 $627
- ------------------------ ---------------------- ----------------------- ----------------------- ======================
</TABLE>
(1) Based on the number of shares of Common Stock reserved for issuance pursuant
to the Consolidated Delivery & Logistics, Inc. Employee Stock Purchase Plan. In
addition to such shares, this Registration Statement also covers additional
shares of Common Stock as may be issuable pursuant to the anti-dilution
provisions thereof.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act of 1933 on the basis of
the average of the high and low sale prices for a share of Common Stock on the
NASDAQ Stock Market's National Market on March 3, 1998.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by Consolidated Delivery & Logistics,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference in this registration statement:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(ii) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 1997;
(iii) The Company's Current Report on Form 8-K for an event on
December 31, 1997; and
(iv) The description of the Company's Common Stock, contained
in the Company's Registration Statement on Form 8-A (File No. 33-97008),
including any amendment or report filed for the purpose of updating such
information.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from their respective dates of filing (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"). Any statement contained in any Incorporated Document shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Article Seventh of the Company's Second Restated Certificate of
Incorporation provides that the Company shall, to the fullest extent permitted
by Section 145 of the General Corporation Law of the State of Delaware, as
amended from time to time, indemnify all directors and officers of the Company
whom it may indemnify pursuant thereto.
Section 145 of the General Corporation Law of the State of Delaware
permits a corporation, under specified circumstances, to indemnify its
directors, officers, employees or agents against expenses (including attorney's
fees), judgments, fines and amounts paid in settlements actually and reasonably
incurred by them in connection with any action, suit or proceeding brought by
third parties by reason of the fact that they were or are directors, officers,
employees or agents of the corporation, if such directors, officers, employees
or agents acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reason to believe their conduct was
unlawful. In a derivative action, i.e., one by or in the right of the
corporation, indemnification may be made only for expenses actually and
reasonably incurred by directors, officers, employees or agents in connection
with the defense or settlement of an action or suit, and only with respect to a
matter as to which they shall have acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made if such person shall
have been judged liable to the corporation unless and only to the extent that
the court in which the action or suit was brought shall determine upon
application that the defendant directors, officers, employees or agents are
fairly and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
Article Eighth of the Company's Second Restated Certificate of
Incorporation provides that the Company's directors will not be personally
liable to the Company or its stockholders for monetary damages resulting from
breaches of their fiduciary duty as director except (a) for any breach of the
duty of loyalty to the Company or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (c) under Section 174 of the General Corporation Law of the State of
Delaware, which makes directors liable for unlawful dividends or unlawful stock
repurchases or redemptions or (d) for transactions from which directors derive
improper personal benefit.
The Company maintains directors' and officers' liability insurance
which insures its directors and officers and the directors and officers of its
subsidiaries against certain liabilities in certain circumstances.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits accompanying this Registration Statement are listed on the
accompanying Exhibit Index.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any acts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Clifton, State of New Jersey, on March 4, 1998.
CONSOLIDATED DELIVERY & LOGISTICS, INC.
By: /s/ Albert W. Van Ness, Jr.
____________________________________________
Albert W. Van Ness, Jr., Chairman of the Board
Pursuant to the requirement of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on March 4, 1998.
Signature Capacity
/s/Albert W. Van Ness, Jr.
__________________________ Chairman of the Board and
Albert W. Van Ness, Jr. Chief Executive Officer
*
__________________________ Vice Chairman and Director
William Beaury
/s/ William T. Brannan
__________________________ President, Chief Operating Officer
William T. Brannan and Director
/s/ Joseph G. Wojak
__________________________ Executive Vice President,
Joseph G. Wojak Chief Financial Officer
(Principal Financial Officer)
*
__________________________ Director
Michael Brooks
*
__________________________ Director
Labe Leibowitz
*
__________________________ Director
Kenneth W. Tunnell
*
__________________________ Director
Marilu Marshall
*
__________________________ Director
Jon Hansen
*
__________________________ Director
John S. Wehrle
* By: /s/ Albert W. Van Ness, Jr.
___________________________
......... Albert W. Van Ness, Jr.
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Second Restated Certificate of Incorporation of Consolidated
Delivery & Logistics, Inc.(filed as Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (File No. 33-97008) and
incorporated herein by reference).
4.2 Amended and Restated By-laws of Consolidated Delivery & Logistics,
Inc. (filed as Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (File No. 33-97008) and incorporated
herein by reference).
4.3 Consolidated Delivery & Logistics, Inc. Employee Stock Purchase
Plan.*
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.A.*
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.A.
(contained in Exhibit 5.1).*
25.1 Power of Attorney.*
- -------------------------
* Filed herewith.
<PAGE>
CONSOLIDATED DELIVERY & LOGISTICS, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. Purposes
The purposes of this Consolidated Delivery & Logistics, Inc.
Employee Stock Purchase Plan (the "Plan") are to provide an incentive for
Eligible Employees to continue devoting their best efforts to the success of the
Company, and to afford such employees an opportunity to obtain a proprietary
interest in the continued growth and prosperity of the Company through ownership
of its Common Stock acquired in a convenient fashion. The Plan is intended to be
an "employee stock purchase plan" and to comply with section 423 of the Code.
2. Definitions
As used herein, the following terms shall have the following
respective meanings:
2.1. "Annual Compensation" means the basic annual rate
of earnings in effect for an Eligible Employee. Annual Compensation shall not
include overtime pay, bonuses or other incentive compensation, or other special
payments.
2.2. "Board of Directors" means the Board of Directors of
CDL.
2.3. "CDL" means Consolidated Delivery & Logistics, Inc.,
a Delaware corporation.
2.4. "Code" means the Internal Revenue Code of 1986, as
amended.
2.5. "Common Stock" means the Common Stock, par value
$.001 per share, of CDL.
2.6. "Committee" means Plan Committee described in Section
13.1 below.
2.7. "Company" means CDL and its subsidiaries
(corporations in respect of which CDL owns, directly or indirectly, at least
fifty-one percent (51%) of the total issued and outstanding voting capital
stock), as may be designated from time to time by the Board of Directors.
2.8. "Date of Offering" means the day specified by the
Committee for the commencement of any Purchase Period under this Plan.
2.9. "Eligible Employee" means any person who has been
employed by the Company (including directors of the Company who are employees)
for six (6) months on a Date of Offering during the term of this Plan, except
for (a) an employee whose customary employment is for twenty (20) hours per week
or less; or, (b) an employee whose customary employment is for not more than
five (5) months in any calendar year. Any employee who, immediately after the
grant of the rights hereunder, would own (within the meaning of section 424(d)
of the Code) Common Stock (including stock which such employee may purchase
pursuant to this Plan) possessing five percent (5%) or more of the total
combined voting power or value of all classes of the capital stock of the
Company, shall be ineligible to participate in this Plan.
2.10. "Market Price" means the fair market value of Common
Stock as determined by the Committee in accordance with Section 423 of the Code
and the regulations thereunder, and the determination by the Committee shall be
final and binding on all participating Eligible Employees' provided, however,
that unless otherwise determined by the Committee, Market Price shall be the
closing sales price of the Common Stock on the Nasdaq National Market on the
trading day prior to a Date of Offering.
2.11. "Offering Price" means the price per share of Common
Stock determined by the Committee on a Date of Offering; provided, however, that
such price per share may not be less than eighty-five percent (85%) of the per
share Market Price.
2.12. "Purchase Period" means the fixed term of any
offering, as described in Section 4 below.
3. Scope of the Plan
Offers to purchase shares of Common Stock pursuant to this
Plan may be made by the Company to Eligible Employees, as hereinafter provided,
but not more than 500,000 shares of Common Stock shall be sold pursuant to this
Plan. All offers made pursuant to this Plan shall be subject to the same rights
and privileges. The shares of Common Stock delivered by the Company pursuant to
this Plan may be treasury shares (including shares reacquired by the Company
through open market purchases or otherwise), newly issued shares, or any
combination thereof.
4. Offerings
Subject to the terms and conditions of this Plan, the
Committee shall make offerings to Eligible Employees to purchase Common Stock
under this Plan from time to time on the date or dates designated by the
Committee. The Committee shall specify the terms and conditions for each such
offering including the Date of Offering, the Offering Price, the amount of
Common Stock that may be purchased thereunder, and the Purchase Period. The
Purchase Period shall be a maximum of twelve (12) months from the Date of
Offering, during which term payroll deductions shall be made from the Annual
Compensation of Eligible Employees who agree to purchase shares of Common Stock
pursuant to an offering hereunder.
5. Amount of Common Stock Each Eligible Employee May Purchase
5.1. Subject to the provisions of this Plan, and as to any
offering made hereunder, an offer shall be made to each Eligible Employee to
purchase up to that number of whole shares of Common Stock which has on the Date
of Offering an aggregate purchase price (determined on the basis of the Offering
Price) equal to ten percent (10%) of his or her Annual Compensation for the
calendar year immediately preceding the Date of Offering. In the event ten
percent (10%) would involve the purchase of a fractional share, the number of
shares which may be purchased shall be decreased to the next lower whole number.
5.2. An Eligible Employee may authorize payroll deductions in
respect of all offerings hereunder in which he or she has elected to participate
simultaneously in an aggregate amount up to but not greater than ten percent
(10%) of his or her Annual Compensation as computed on the Date of Offering for
the latest offering made hereunder.
5.3. If Eligible Employees elect, in any one offering, to
purchase Common Stock to an extent which would result in the purchase of more
than the aggregate number of shares of Common Stock specified by the Committee
for that offering, the Committee shall issue shares of Common Stock on a pro
rata basis so that the aggregate number of shares subject to purchase under that
offering does not exceed such specified number of shares.
5.4. No Eligible Employee may be made an offer to purchase
shares of Common Stock which would permit his or her total rights to purchase
shares of stock under all employee stock purchase plans of the Company to accrue
at a rate which exceeds $25,000 of fair market value of such stock (determined
at of the date the offer was made) for each calendar year during which any such
offer made to such individual is outstanding at any time, all in accordance with
the provisions of Section 423(b)(8) of the Code and the regulations promulgated
thereunder.
5.5. The Committee may establish a minimum dollar
participation or a minimum number of shares of Common Stock which an Eligible
Employee may elect to purchase in any offering hereunder; provided, however,
that any such restriction shall be applicable to all Eligible Employees in a
uniform manner.
6. Method of Participation
6.1. The Committee shall give notice to Eligible Employees at
least 15 days prior to a Date of Offering of each offering to purchase shares of
Common Stock pursuant to this Plan and the terms and conditions of each
offering. Such notice shall specify the determination of the number of shares of
Common Stock to be offered to each Eligible Employee, the Offering Price, the
Purchase Period, and such other information as the Committee may determine.
6.2. Each Eligible Employee who desires to purchase shares of
Common Stock under an offering shall signify his or her election to do so in the
form and manner prescribed by the Committee. Each such Eligible Employee shall
also authorize the Company, in the form and manner prescribed by the Committee,
to make payroll deductions to cover the aggregate purchase price of those shares
of Common Stock in respect of which he or she has agreed to purchase. Such
election and authorization shall continue in effect unless and until such
Eligible Employee withdraws from this Plan or terminates his or her employment
with the Company, as hereinafter provided, and no Eligible Employee shall be
entitled to change the amount of payroll deductions authorized or withdraw
payroll deductions credited to his or her account while participating in the
Plan.
6.3. The Company shall thereafter provide each Eligible
Employee purchasing Common Stock under each offering a notice indicating the
number of shares offered for purchase, the Offering Price, and the pro rata
reduction, if any, in accordance with Section 5.3.
7. Payroll Deductions
7.1. The aggregate purchase price for those shares of Common
Stock which each Eligible Employee has elected to purchase pursuant to an
offering shall be deducted from his or her Annual Compensation during the
Purchase Period specified in the offering through payroll deductions from each
regular pay check, in substantially equal installments. Such payroll deductions
shall commence with the payroll period in which the applicable Date of Offering
occurs, and shall continue through the payroll period for the last day of the
Purchase Period. An Eligible Employee may not make any separate cash payment for
shares purchased.
7.2. In the event the payroll deductions of an Eligible
Employee participating in this Plan are temporarily discontinued because of
leave of absence, lay-off, temporary disability or other similar reasons, then
the number of shares of Common Stock subject to purchase shall be automatically
reduced. At the conclusion of each applicable Purchase Period, the Eligible
Employee shall receive that number of whole shares of Common Stock which his or
her aggregate payroll deductions actually made within the Purchase Period is
sufficient to purchase. The balance of such payroll deductions, if any, shall be
refunded to the Eligible Employee in cash, without interest, within thirty (30)
days after the end of the applicable Purchase Period. Any leave of absence that
exceeds 90 days shall be deemed a termination of employment and be governed by
Section 9.
In the event that an employee resumes his or her employment
with the Company subsequent to a temporary discontinuance of payroll deductions
for any of the reasons hereinabove set forth and prior to the end of the
applicable Purchase Period(s), and said employee is an Eligible Employee, said
Eligible Employee may elect to resume payroll deductions on the same basis as
such payroll deductions were made during each applicable Purchase Period prior
to the temporary discontinuance thereof and shall receive, in addition to the
number of shares of Common Stock purchased with payroll deductions made prior to
the temporary discontinuance, that number of whole shares of Common Stock which
the aggregate payroll deductions actually made subsequent to the resumption of
employment and within the applicable Purchase Period(s) is sufficient to
purchase. The balance of such payroll deductions, if any, shall be refunded to
the Eligible Employee in cash, without interest, within thirty (30) days after
the end of the applicable Purchase Period.
Notification of an Eligible Employee's election to resume
payroll deductions subsequent to the temporary discontinuance thereof as
hereinabove provided shall be made by the filing of an appropriate notice to
such effect with the Committee.
8. Right to Withdraw
An Eligible Employee who has agreed to purchase shares of
Common Stock may, at any time prior to his or her last regular payroll deduction
thereunder, direct the Company to make no further deductions from his or her
Annual Compensation with respect to such purchase. Upon such action, all payroll
deductions with respect to such purchase shall cease. If the employee has
directed that payroll deductions be discontinued, any sums deducted in respect
of the offering prior to discontinuance shall be retained by the Company until
the end of the Purchase Period, at which time there shall be issued to the
employee the number of whole shares which can be purchased with the sum deducted
and any balance of the sum shall be paid to him or her in cash, without
interest, within thirty (30) days after the end of the Purchase Period.
Notification of an Eligible Employee's election to terminate
deductions shall be made by the filing of an appropriate notice to such effect
with the Committee. Withdrawal by an Eligible Employee as herein provided will
not have any effect upon an employee's eligibility to participate in a
succeeding offering under this Plan or in any similar plan adopted by the
Company.
9. Termination of Employment
9.1. In the event the employment of an Eligible Employee who
has agreed to purchase shares of Common Stock is terminated prior to his or her
final payroll deduction hereunder because of death, total and permanent
disability, or retirement at or after age 65, or on any earlier date that may be
approved by the Committee in its sole discretion, with the consent of the
Company, the Eligible Employee or his or her legal representative, as
applicable, may either:
(a) cancel his or her purchase, in which event the
Company shall refund in cash, without interest and within
thirty (30) days after the date of cancellation, all amounts
credited to his or her account under all offerings in which he
is participating under this Plan; or
(b) elect to receive, at the conclusion of each
applicable Purchase Period, that number of whole shares of
Common Stock which his or her payroll deductions actually made
are sufficient to purchase, plus the balance of such payroll
deductions, if any, in cash, without interest, which balance,
if any, shall be refunded within thirty (30) days after the
end of each applicable Purchase Period.
9.2. The election of an Eligible Employee or his or her legal
representative, as applicable, pursuant to Section 9.1 above shall be made no
later than the earlier of (a) the date three (3) months after the date of the
event causing the termination of employment or (b) the last day of the Purchase
Period, and shall be irrevocable when made. Notification of the election shall
be filed with the Committee and, in the event no notification has been filed
within the prescribed period, the Company shall act in accordance with Section
9.1(a) above. For purposes of Section 9.1(a), the date of cancellation shall be
deemed to be the date upon which the notification of the election of
cancellation is filed with the Committee, and, in the event that no such notice
is filed, the date of cancellation shall be deemed to be last day of the three
(3) month period following the date of the event causing the termination of
employment or the last day of the Purchase Period, whichever occurs first.
9.3. In the event the employment of an Eligible Employee who
has agreed to purchase shares of Common Stock is terminated for any reason other
than one of those specified in Section 9.1, the Company shall refund in cash,
without interest, all amounts credited to his or her account under all offerings
in which he is participating under this Plan within thirty (30) days after the
date of termination of employment.
10. Purchase of Shares
10.1. Each Eligible Employee who has accepted an offer shall
be deemed to have an irrevocable obligation to purchase Common Stock on the last
day of the applicable Purchase Period in accordance with the provisions of this
Plan. The number of whole shares of Common Stock so purchased by each such
Eligible Employee shall be determined by dividing the amount accumulated in his
or her account through payroll deductions during the Purchase Period by the
Offering Price, rounded down to a whole number of shares. The amount which the
Eligible Employee shall pay for the shares purchased shall be determined by
multiplying the number of shares of Common Stock so purchased by the Offering
Price. The amount of the Eligible Employee's payroll deductions actually made
shall be applied toward the purchase of the shares, and the balance of such
payroll deductions which were not used for the purchase of shares, if any, shall
be refunded to the Eligible Employee in cash, without interest, within thirty
(30) days after the end of the applicable Purchase Period.
10.2. Stock certificates evidencing the number of whole shares
of Common Stock purchased by any Eligible Employee under this Plan shall be
delivered to him within sixty (60) days after the end of the applicable Purchase
Period.
11. Rights as a Shareholder
An Eligible Employee who has agreed to purchase shares of
Common Stock under this Plan shall not be entitled to any of the rights or
privileges of a shareholder of the Company, including the right to receive any
dividends which may be declared by the Company, until such time as he has
actually paid the purchase price for such shares and certificates have been
issued to him or her in accordance with Section 10 hereof.
12. Rights Not Transferable
An Eligible Employee's rights under this Plan are exercisable,
during his or her lifetime, only by him and such rights (including payroll
deductions credited to an Eligible Employee's account and any rights to receive
shares under the Plan) may not be sold, pledged, assigned, or transferred in any
manner other than by will or the laws of descent and distribution. Any attempt
to sell, pledge, assign, or transfer such rights shall be void.
13. Administration of the Plan
13.1. This Plan shall be administered by the Committee, which
shall be comprised of from two (2) to four (4) members of the Board of Directors
as the Board of Directors shall determine. The Committee is authorized to make
such uniform rules as may be necessary to carry out its provisions. The
Committee shall determine any questions arising in the administration,
interpretation, and application of this Plan, and all such determinations shall
be conclusive and binding on all parties. Nothing contained in this Section
shall be deemed to authorize the Committee to administer the provisions of the
Plan in a manner inconsistent with the provisions of Section 423 of the Code or
the regulations promulgated thereunder.
13.2. If any offer to purchase shares of Common Stock made
pursuant to this Plan shall lapse, terminate or be revoked, the number of shares
of Common Stock as to which such offer shall have lapsed, terminated or been
revoked shall become available for sale under this Plan.
14. Adjustment Upon Changes in Capitalization
In the event of any change in the Common Stock of the Company
by reason of stock dividends, split-ups, corporate separations,
recapitalizations, mergers, consolidations, combinations, exchanges of shares,
or the like, the aggregate number and class of shares available under this Plan
and the number, class, and purchase price of shares offered for purchase but not
yet issued under this Plan shall be adjusted appropriately. Nothing herein
contained shall be construed to require an adjustment in the aggregate number or
class of shares available under the Plan or in the number, class, or purchase
price of shares offered for purchase but not yet issued if a merger,
consolidation, combination, or similar transaction involves the issuance of
securities of the Company and the number or class of shares held by holders of
Common Stock of the Company prior to the consummation of the merger,
consolidation, combination, or similar transaction is not affected by any such
transaction. No adjustment shall be made pursuant to this section of the Plan
which would result in the purchase of a fractional share and any fractional
share resulting from such adjustment shall be adjusted down to the nearest full
share. Further, no adjustment shall be made pursuant to this section of the Plan
which would result in a modification of the rights granted hereunder in a manner
which would disqualify this Plan as an "employee stock purchase plan" under the
provisions of Section 423 of the Code.
15. Merger, Consolidation, Reorganization, Liquidation and
Dissolution
15.1. In the event of a merger, consolidation, or sale of all
or substantially all of the Company's assets or other reorganization in which
the Company is not the surviving or acquiring corporation, or in which the
Company is or becomes a wholly owned subsidiary of another corporation after a
reorganization, the Board of Directors shall, in good faith, but in its sole and
absolute discretion, seek to arrange any such merger, consolidation, sale of
assets, or other reorganization to specifically provide for the corporation
surviving the merger, consolidation, or other reorganization or acquiring the
assets either (a) to adopt this Plan so that the securities of such corporation
are offered in lieu of Common Stock, or (b) to the extent that rights granted
hereunder are not deemed to be exercised until the last day of the applicable
Purchase Period, to settle the participating Eligible Employees' rights by
payment of cash or other consideration for such rights on a basis approved by
the Board of Directors. In the event that the corporation surviving the merger,
consolidation, or other reorganization or acquiring the assets is to adopt this
Plan, such arrangements shall include the adjustment of outstanding offers to
provide that the securities of the corporation surviving the merger,
consolidation, or other reorganization or acquiring the assets shall become
subject to such offers in lieu of Common Stock on the basis approved by the
Board of Directors.
15.2. If provisions for the adoption of this Plan by the
corporation surviving the merger, consolidation, or other reorganization or
acquiring the assets or the settlement of rights cannot be arranged, as
described in Section 15.1 hereof, or if the Company is liquidated or dissolved
(except a liquidation or dissolution relating to a sale of assets or other
reorganization of the Company referred to in Section 15.1 hereof), then, in any
of those events, outstanding offers shall terminate on the date of mailing the
notice referred to in Section 15.3 hereof, the provisions of Sections 15.3 and
15.4 hereof shall apply, and each participating Eligible Employee may elect to:
(a) have the funds credited to his or her account
through payroll deductions applied in whole or in part toward
the purchase of a whole number of shares of Common Stock; or
(b) have the funds credited to his or her account
through payroll deductions refunded to him or her in cash,
without interest.
15.3. If Section 15.2 hereof is applicable, the Committee
shall give written notice of any of the events specified in Section 15.2 to each
participating Eligible Employee, and said participating Eligible Employee shall
have thirty (30) days from the date such notice was mailed to file a
notification of his or her election pursuant to Section 15.2. In the event that
no such notification has been filed with the Committee within the prescribed
period, the Company shall act in accordance with subsection (b) of Section 15.2.
Upon the mailing of the aforesaid notice by the Committee, which mailing shall
be undertaken in sufficient advance time to allow the Eligible Employee to
participate in the merger, consolidation, reorganization, liquidation, or
dissolution of the Company, as the case may be, payroll deductions shall cease
and the applicable Purchase Period shall be deemed concluded.
15.4. In the event that a participating Eligible Employee has
elected to have the funds credited to his or her account through payroll
deductions applied in whole or in part toward the purchase of a whole number of
shares of Common Stock pursuant to subsection (a) of Section 15.2 above, he or
she shall be deemed to have accepted, in whole or in part depending upon his or
her election, his or her outstanding offer as of the date the notice referred to
in Section 15.3 hereof is mailed and shall have an irrevocable obligation to
purchase Common Stock in accordance with the provisions of this Plan. The
provisions of Section 10 hereof shall govern the purchase by the participating
Eligible Employee; provided, however, that (a) all Purchase Periods shall be
deemed to have been concluded and all offers to purchase shall terminate in
accordance with Section 15 of this Plan; (b) any reductions in the number of
shares which may be purchased hereunder pursuant to Section 10.2 hereof shall be
determined on a pro-rata basis; and (c) any funds credited to the Eligible
Employee's account through payroll deductions not used to purchase shares shall
be refunded to him in cash, without interest, and within sixty (60) days after
the date the notice referred to in Section 15.3 hereof was mailed.
In the event that a participating Eligible Employee has
elected to have the funds credited to his or her account through payroll
deductions refunded to him pursuant to subsection (b) of Section 15.2 above,
such funds shall be returned to him or her in cash, without interest, and within
sixty (60) days after the date the notice referred to in Section 15.3 of this
Plan was mailed.
16. Registration of Certificates
Stock certificates may be registered in the name of the
Eligible Employee or, if he or she so designates, in his or her name jointly
with his or her spouse, with right of survivorship.
17. Amendment of Plan
The Board of Directors may at any time amend this Plan in any
respect, except that, without the approval of the holders of a majority of the
shares of Common Stock then issued and outstanding and entitled to vote, no
amendment shall be made (a) increasing the number of shares to be reserved under
this Plan (other than as provided in Section 14), (b) decreasing the purchase
price per share (other than as provided in Section 14), or (c) changing the
definition of "Company" with respect to those corporations eligible to
participate in the Plan.
18. Termination of the Plan
This Plan and all rights of Eligible Employees in any offering
hereunder shall terminate on the earliest of the following dates:
(a) the conclusion of the last Purchase Period
authorized herein;
(b) the day that Eligible Employees participating in
offerings under this Plan become entitled to purchase a number
of shares of Common Stock equal to or greater than the number
of shares remaining available for purchase; or
(c) any other date specified by the Board of
Directors in its discretion.
Upon termination of this Plan, shares of Common Stock shall be
issued to Eligible Employees and cash, if any, remaining in the accounts of the
Eligible Employees shall be refunded to them, as if the Plan were terminated at
the end of a Purchase Period. Any termination of this Plan must be effected so
that the then existing rights of all participating Eligible Employees shall not
be adversely affected thereby.
19. Compliance with Securities Laws
No offers may be made, nor may Common Stock be purchased,
under this Plan until the Company has taken all actions then required to comply
with the Securities Act of 1933, as amended, any other applicable state
securities laws, and the rules of any exchange on which Common Stock may be
listed.
20. Miscellaneous
(a) This Plan shall become effective February 25,
1998, subject to approval, in the manner prescribed by law, by the shareholders
of the Company within 12 months after this Plan is adopted by the Board of
Directors.
(b) This Plan shall not be deemed to constitute a
contract of employment between the Company and any Eligible Employee, nor shall
it interfere with the right of the Company to terminate any Eligible Employee
and treat him or her without regard to the effect which such treatment might
have upon him under this Plan.
(c) Any and all funds held by the Company under
this Plan may be used for any corporate purpose.
(d) This Plan and any agreement entered into in
connection therewith shall be construed, and its provisions enforced and
administered, in accordance with the laws of the State of Delaware.
(e) All disputes which may arise under the Plan or
any agreement entered into in connection therewith which involve judicial
adjudication shall be resolved in a court of competent jurisdiction of the State
of New Jersey or the United States District Court for the District of New
Jersey. Any Eligible Employee who participates in the Plan consents and agrees
to submit to the personal jurisdiction of the aforesaid courts, agrees to notify
the Company of any change of his or her address within sixty (60) days after the
date of such change, and consents to service of any papers, notices, or process
necessary or proper for any legal action in any manner permitted by the New
Jersey Court rules, including, without limitation, service by registered or
certified mail, return receipt requested, or, in the event the Eligible Employee
refuses to accept or claim registered or certified mail, ordinary mail to his or
her last known address. In the event that a participating Eligible Employee
fails to notify the Company of a change of address and service by registered or
certified mail as aforesaid is not accepted or claimed, such failure shall be
deemed a refusal to accept or claim service of process by registered or
certified mail. Any Eligible Employee of the Company who participates in the
Plan acknowledges the sufficiency of service as aforesaid and waives any right
that he or she may have to challenge the sufficiency of such service or to
challenge in any manner the convenience of the location or the venue of any
legal action brought involving the Plan or any agreement entered into in
connection therewith.
<PAGE>
Lowenstein Sandler PC
Attorneys at Law
65 Livingston Avenue
Roseland, New Jersey 07068-1791
March 4, 1998
Consolidated Delivery & Logistics, Inc.
380 Allwood Road
Clifton, New Jersey 07012
Dear Sirs:
In connection with the registration under the Securities Act
of 1933, as amended (the "Act"), of 500,000 shares of Common Stock, par value
$.001 per share (the "Common Stock"), of Consolidated Delivery & Logistics,
Inc., a Delaware corporation (the "Company"), to be issued and sold pursuant to
the Consolidated Delivery & Logistics, Inc. Employee Stock Purchase Plan (the
"Plan"), we have examined such corporate records, certificates and other
documents and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our
opinion, the shares of Common Stock to be issued under the Plan have been duly
authorized and, when issued in accordance with the terms and conditions of the
Plan (including the due payment of the purchase price set forth in the Plan),
will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
Alan Wovsaniker
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Consolidated Delivery & Logistics, Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated April 15, 1997
included in Consolidated Delivery & Logistics, Inc.'s Form 10-K for the year
ended December 31, 1996 and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Roseland, New Jersey
March 3, 1998
<PAGE>
POWER OF ATTORNEY
WHERAS, the undersigned officers and directors of Consolidated Delivery
& Logistics, Inc. (the "Company") desire to authorize Albert W. Van Ness, Jr.,
William T. Brannan, William Beaury and Joseph G. Wojak to act as their
attorneys-in-fact and agents, for the purpose of executing and filing a
Registration Statement on Form S-8, including all amendments thereto,
NOW, THEREFORE,
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Albert W. Van Ness, Jr., William T.
Brannan, William Beaury and Joseph G. Wojak, and each of them, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to sign one or more Registration Statements on Form S-8
registering with the Securities and Exchange Commission 500,000 shares of Common
Stock issuable pursuant to the Company's Employee Stock Purchase Plan, including
any and all amendments and supplements thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this power of
attorney in the following capacities as of the 25th day of February, 1998.
SIGNATURE TITLE
/s/ Albert W. Van Ness, Jr. Chairman of the Board and Chief Executive
Albert W. Van Ness, Jr. Officer
/s/ Joseph G. Wojak Chief Financial Officer
Joseph G. Wojak
/s/ William T. Brannan Chief Operating Officer and Director
William T. Brannan
/s/ William Beaury Vice Chairman and Director
William Beaury
/s/ Michael Brooks Director
Michael Brooks
/s/ Labe Leibowitz Director
Labe Leibowitz
/s/ Jon Hansen Director
Jon Hansen
/s/ Marilu Marshall Director
Marilu Marshall
/s/ Kenneth W. Tunnell Director
Kenneth W. Tunnell
/s/ John S. Wehrle Director
John S. Wehrle
