Exhibit 4.1
AMENDMENT NO. 2
TO
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
This Amendment No. 2 (this "Amendment"), dated as of July 3, 2006, is
between CD&L, Inc., a Delaware corporation formerly known as Consolidated
Delivery & Logistics, Inc. (the "Company"), and American Stock Transfer & Trust
Company, a New York corporation (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into a Stockholder
Protection Rights Agreement, dated as of December 27, 1999, and amended as of
April 14, 2004 (as amended, 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 Board of Directors of the Company has approved this
Amendment;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment of Section 1.1
(a) Section 1.1 of the Rights Agreement is amended by adding
thereto the following definitions:
"'Merger Agreement' shall mean the Agreement and Plan of
Merger, dated as of July 3, 2006, by and among Velocity
Express Corporation, a Delaware corporation ("Purchaser"),
CD&L Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of Purchaser ("Newco"), and the Company, as
the same may be amended from time to time.
'Company Voting Agreement' shall mean the Company Voting
Agreement (as defined in the Merger Agreement).
'Securities Purchase Agreements' shall mean the Securities
Purchase Agreements (as defined in the Merger Agreement)."
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(b) Section 1.1 of the Rights Agreement is amended further by
deleting the definition of "Expiration Time" in its entirety and inserting the
following in lieu thereof:
"'Expiration Time' shall mean the earliest of (i) the Exchange
Time, (ii) the Redemption Time, (iii) the close of business on
the tenth anniversary of the Record Time or (iv) immediately
prior to the Effective Time (as defined in the Merger
Agreement)."
2. Addition of New Section 5.19.
The Rights Agreement is amended by adding a Section 5.19
thereof which shall read as follows:
"Section 5.19. Exception For Purchaser. Notwithstanding any
provision of this Agreement to the contrary, neither a Flip-in
Date, Flip-over Transaction or Event, Separation Time nor a
Stock Acquisition Date shall be deemed to have occurred, none
of the Purchaser, Newco or any of their Affiliates or
Associates shall be deemed to have become an Acquiring Person,
and no holder of any Rights shall be entitled to exercise such
Rights under, or be entitled to any rights pursuant to, this
Agreement, in any such case by reason of: (a) the approval,
execution or delivery of the Merger Agreement, the Company
Voting Agreement, the Securities Purchase Agreements or any
amendments thereof, provided that any such amendment is
approved in advance by the Board of Directors of the Company;
(b) the commencement or, prior to termination of the Merger
Agreement, the consummation of any of the transactions
contemplated by the Merger Agreement, including the Merger (as
defined in the Merger Agreement), or by the Company Voting
Agreements or the Securities Purchase Agreements; (c) any
conversion, exercise or exchange of any of the Company's
securities acquired pursuant to the Securities Purchase
Agreements; or (d) in the event of a termination of the Merger
Agreement, any additional acquisitions of the Company's
securities by any of Purchaser, Newco or any of their
Affiliates or Associates (i) which are consummated after
termination of the Merger Agreement at a purchase price of not
less than $3.00 per share of Common Stock (on an as-converted
basis, in the case of Convertible Securities (as defined in
the Merger Agreement)) (ii) which do not cause any of
Purchaser, Newco or any of their Affiliates or Associates to
become the Beneficial Owner of more than 51% of the shares of
Common Stock outstanding at the time of such additional
acquisitions, and (iii) which, in the event there is a Second
Purchaser Restricted Period (as defined in the Merger
Agreement), occur after the expiration of the Second Purchaser
Restricted Period."
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3. Effectiveness.
This Amendment shall be deemed effective as of the date hereof as if
executed by both parties hereto on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
4. Miscellaneous.
This Amendment shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state. This Amendment may be executed in any
number of counterparts, including by means of facsimile, electronic mail or
similar means, each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and the
same instrument. If any term, provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, illegal, or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to be duly executed as of the date set forth above.
CD&L, INC.
By:
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Name:
Title:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
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Name:
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