Exhibit 4.4
AMENDMENT NO. 1
TO
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
This Amendment No. 1 (this "Amendment") is dated as of April 14, 2004,
between CD&L, Inc., a Delaware corporation formerly known as Consolidated
Delivery & Logistics, Inc. (the "Company"), and American Stock Transfer & Trust
Company (the "Rights Agent");
W I T N E S S E T H
WHEREAS, the Company and the Rights Agent entered into a Stockholder
Protection Rights Agreement, dated as of December 27, 1999 (the "Rights
Agreement"); and
WHEREAS, Section 5.4 of the Rights Agreement provides that, prior to
the Flip-in Date, the Company and the Rights Agent may amend the Rights
Agreement in any respect without the approval of any holders of Rights; and
WHEREAS, the Company is about to (i) enter into a Restructuring and
Exchange Agreement (the "Restructuring Agreement") with Paribas Capital Funding
LLC, Exeter Venture Lenders L.P. and Exeter Capital Partners IV, L.P.
(collectively, the "Lenders") and Xxxxxx Xxx Xxxx, Xx., Xxxxxxx X. Xxxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxx X. Xxxxxxxxx and certain
other individuals (collectively, the "Investors"), as well as the other
Transaction Documents (as defined in the Restructuring Agreement"), and (ii)
commence an offering of non-transferable subscription rights (the "Subscription
Rights") to purchase up to $4.0 million of the Company's common stock, par value
$.001 per share (the "Common Stock"), to the holders of the outstanding shares
of Common Stock pursuant to a registration statement on Form S-3 to be filed
with the Securities and Exchange Commission (the "Rights Offering"), and the
Company wishes to ensure that the Rights provided for in the Rights Agreement do
not become exercisable on account of the Company entering into the Transaction
Documents or commencing the Rights Offering or as a result of the consummation
of any of the transactions contemplated under the Transaction Documents or the
exercise of Subscription Rights by any of the Lenders and Investors; and
WHEREAS, the Board of Directors of the Company has approved this
Amendment;
NOW THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
1. The definition of "Acquiring Person" in Section 1.1 of the Rights
Agreement is hereby amended by adding the following to the end of such
definition:
"Notwithstanding anything else in this definition to the contrary, none
of Paribas Capital Funding LLC, Exeter Venture Lenders L.P. and Exeter
Capital Partners IV, L.P. (collectively, the "Lenders") and Xxxxxx Xxx
Xxxx, Xx., Xxxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxx
Xxxxxxx, Xxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxx, Xxxxx
Xxxxx, Xxxx XxXxxxxxx, Xxxxxx X. Xxxxx, J. Xxxxxx Xxxx, Xxxxxxxx Xxxxxx
and Xxxxx X. Xxxxx (collectively, the "Investors"), nor any affiliate
of any of the Lenders or the Investors, shall be deemed to be an
Acquiring Person within the meaning of this Agreement (i) on account of
the Company and any of the Lenders or Investors, or any affiliate of
any of the Lenders or Investors, entering into any of the Transaction
Documents or exercising any Subscription Rights, (ii) as a result of
the consummation of any of the transactions contemplated under the
Transaction Documents or the conversion, exercise or exchange of any of
the Company's securities (A) held by any Lender or Investor as of April
14, 2004 or (B) issued to the Lenders or Investors pursuant to the
Transaction Documents and, in the case of any such conversion, exercise
or exchange, in accordance with the terms of such securities, or (iii)
as a result of any additional acquisition of the Company's securities
by any of the Lenders or Investors provided that no such additional
acquisition by any of the Lenders or Investors shall result in such
Lender or Investor being the Beneficial Owner of 30% or more of the
outstanding shares of Common Stock. Consequently, neither a Stock
Acquisition Date nor a Flip-in Date, as defined in this Agreement,
shall occur upon (i) the execution of any of the Transaction Documents
by the parties thereto, (ii) the commencement of the Rights Offering,
(iii) the exercise of Subscription Rights by any of the Lenders or
Investors, (iv) the consummation of any of the transactions
contemplated under the Transaction Documents (including any conversion,
exercise or exchange by any of the Lenders or Investors of any of the
securities issued to such Lender or Investor pursuant to the
Transaction Documents, which conversion, exercise or exchange is in
accordance with the terms of such security), (v) any conversion,
exercise or exchange by any of the Lenders or Investors of any
securities of the Company held by such Lender or Investor as of April
14, 2004, in accordance with the terms of such security, or (vi) any
additional acquisition of the Company's securities by any of the
Lenders or Investors provided that no such additional acquisition by
any of the Lenders or Investors shall result in such Lender or Investor
being the Beneficial Owner of 30% or more of the outstanding shares of
Common Stock. In addition, neither (i) the Company's execution of the
Transaction Documents, (ii) the Company's commencement of the Rights
Offering, (iii) the exercise of the Subscription Rights by any of the
Lenders or Investors, (iv) the consummation of any of the transactions
contemplated under the Transaction Documents (including any conversion,
exercise or exchange by any of the Lenders or Investors of any of the
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securities issued to such Lender or Investor pursuant to the
Transaction Documents, which conversion, exercise or exchange is in
accordance with the terms of such security), (v) any conversion,
exercise or exchange by any of the Lenders or Investors of any
securities of the Company held by such Lender or Investor as of April
14, 2004, in accordance with the terms of such security, nor (vi) the
acquisition of any additional securities of the Company by any of the
Lenders or Investors (provided that no such acquisition of additional
securities by any of the Lenders or Investors shall result in such
Lender or Investor being the Beneficial Owner of 30% or more of the
outstanding shares of Common Stock) shall constitute a Flip-over
Transaction or Event."
2. By executing this Amendment, the Company hereby certifies to the
Rights Agent that the proposed amendment to the Rights Agreement contained in
this Amendment has been made in accordance with Section 5.4 of the Rights
Agreement.
3. Capitalized terms used in this Amendment and not otherwise defined
herein shall have the meanings ascribed to them in the Rights Agreement.
4. Except as amended or modified hereby, the Rights Agreement shall
remain in full force and effect in accordance with its original terms.
5. This Amendment may be executed in one or more counterparts, each of
which shall constitute an original, and together, all such executed counterparts
shall be deemed one and the same instrument.
(This space intentionally left blank; signature page follows.)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
CD&L, INC.
By:
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Name:
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Title:
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AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:
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Name:
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Title:
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