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REGISTRATION RIGHTS AGREEMENT
by and between
CONSOLIDATED DELIVERY & LOGISTICS, INC.,
PARIBAS CAPITAL FUNDING LLC,
EXETER VENTURE LENDERS, L.P.
and
EXETER CAPITAL PARTNERS IV, L.P.
dated as of
January 29, 1999
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
January 29, 1999 and entered into by and between CONSOLIDATED DELIVERY &
LOGISTICS, INC., a Delaware corporation (the "Company"), PARIBAS CAPITAL FUNDING
LLC, EXETER VENTURE LENDERS, L.P. and EXETER CAPITAL PARTNERS IV, L.P. (each, a
"Purchaser" and collectively, the "Purchasers"). Unless otherwise provided in
this Agreement, capitalized terms used herein shall have the meanings set forth
in the Warrant Agreement.
WHEREAS, the Purchasers and the Company are parties to the
Subordinated Loan Agreement and the Warrant Agreement;
WHEREAS, in order to induce the Purchasers to enter into the
Subordinated Loan Agreement and the Warrant Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition
to the issuance of the Warrants;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows;
SECTION 1. Registration on Request.
(a) Registration on Request. (i) At any time and from time to time
after the date hereof, upon the request of any Holder or group of Holders of
Warrants and/or Warrant Shares equal to at least 1.5% of the issued and
outstanding number of shares of Common Stock for a registration of Registrable
Securities (a "Demand Request"), the Company will promptly give written notice
of such requested registration to all registered holders of Registrable
Securities, and thereupon the Company, in accordance with the provisions of
Section 4 hereof, will use its best efforts to effect the registration under the
Securities Act of:
(A) the Registrable Securities which the Company has been so
requested to register in accordance with the Demand Request for disposition
in accordance with the intended method or methods of disposition stated in
such request, and
(B) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request given to
the Company within 20 days after the giving of such written notice by the
Company (which request shall specify the intended method of disposition of
such Registrable Securities),
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered. The Company shall not be required to effect more than four (4)
registrations pursuant to this Section 1 (each, a "Demand Registration") and, in
any event, not more than one such Demand Registration within any twelve-month
period.
(ii) Effective Registration Statement. A registration requested
pursuant to this Section 1 shall not be deemed to be effected (A) if a
registration statement with respect thereto shall not have become effective, (B)
if, after it has become effective, such registration is interfered with for any
reason by any stop order, injunction or other order or requirement of the
Commission or any other governmental agency or any court, and the result of such
interference is to prevent the holders of Registrable Securities to be sold
thereunder from disposing thereof in accordance with the intended methods of
disposition, or (C) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with any
underwritten registration shall not be satisfied or waived with the consent of
the underwriters of such Registrable Securities that were to have been sold
thereunder, other than as a result of any breach by any such holder of its
obligations thereunder or hereunder or (D) if the registration statement with
respect thereto shall not have remained effective for a period of 180 days
unless all of the Registrable Securities requested to be registered by the
Holders have been sold prior to the expiration of such 180-day period.
(iii) Registration Statement Form. Registrations under this Section 1
shall be on such appropriate registration form of the Commission, including an
offering on a continuous or delayed basis in the future of all or some portion
of the Registrable Securities to the extent and under the terms and conditions
set forth in the Securities Act (a "Shelf Registration"), as shall be selected
by the Company and as shall permit the disposition of the Registrable Securities
so to be registered in accordance with the intended method or methods of
disposition specified in the request of the holders of Registrable Securities
being registered for such registration. The Company agrees to include in any
such registration statement all information which the holders of Registrable
Securities being registered shall reasonably request. In the event the Company
is not permitted to file a Demand Registration as a Shelf Registration or on
Form S-3 because it is not current with its Commission filings or for any other
reason, then the Company shall file such Demand Registration on Form S-1. If a
Demand Registration is filed as a Shelf Registration, then the Company will use
its best efforts keep such Shelf Registration filed pursuant to this Section 1
continuously effective for the period beginning on the date on which the Shelf
Registration is declared effective and ending on the earlier of (a) the first
date that there are no Registrable Securities and (b) the date as of which the
Shelf Registration Statement has been effective for 180 days; provided, that the
Company shall take no affirmative actions to deregister any Registrable
Securities not sold within such 180-day period. During the period during which
the Shelf Registration is effective, the Company shall supplement or make
amendments to the Shelf Registration, if required by the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, or if reasonably requested by any holder of Registrable Securities or an
underwriter of Registrable Securities, including to reflect any specific plan of
distribution or method of sale, and shall use its best efforts to have such
supplements and amendments declared effective, if required, as soon as
practicable after filing.
(iv) Selection of Underwriters. If a requested registration pursuant
to this Section 1 involves an underwritten offering, the managing underwriter or
underwriters shall be selected by the majority of the Holders of Registrable
Securities initiating a Demand Registration, such underwriter to be reasonably
satisfactory to the Company.
(v) Priority in Requested Registrations. If a requested registration
pursuant to this Section 1 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a copy to each Person
requesting registration of Registrable Securities) that, in its opinion, the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering within a price range acceptable to the
holders of a majority of the Registrable Securities requested to be included
therein, the Company will include in such registration to the extent of the
number which the Company is so advised can be sold in such offering such
securities in the following order: (x) first, Registrable Securities which are
proposed to be included in such registration by the Holders pro rata among such
Holders on the basis of the number of Registrable Securities owned by such
Holders; and (y) second, all other securities requested to be included in such
registration by the Company and other Persons exercising piggyback rights pro
rata among the Company and such holders.
(b) If, while a registration request is pending pursuant to this
Section 1, the Company has been advised by legal counsel that the filing of a
registration statement would require the disclosure of a material financing or
investment transaction the Company reasonably determines in good faith would
have a material adverse effect on the Company, the Company shall not be required
to effect a registration pursuant to this Section 1 until the earlier of (A) the
date upon which such material financing or investment transaction is otherwise
disclosed to the public or ceases to be material and (B) ninety (90) days after
the Company makes such good faith determination, provided that the Company shall
not be permitted to delay a requested registration in reliance on this paragraph
(b) more than once in any 12-month period and provided, further, that in the
event the Company exercises its rights under this Section 1(b), the registration
shall not be counted as a Demand Registration for purposes of Section 1(a)(i)
hereof.
(c) A requested registration under this Section 1 may be rescinded by
written notice to the Company by the Requisite Holders. Such rescinded
registration shall not count as a registration statement initiated pursuant to
this Section 1 for purposes of paragraph (a)(i) above if such request is
rescinded by the Requisite Holders not later than five (5) Business Days prior
to the filing of a registration statement with the Commission.
SECTION 2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its equity securities under the Securities Act (other than pursuant to a
transaction described in Rule 145 of the Securities Act or on Form S-4 or S-8),
whether or not for sale for its own account, the Company will each time give
prompt written confidential notice of such proposed filing to all Holders (i) in
all cases at least 20 days before the anticipated filing date and (ii) in the
case of a proposed registration in connection with the exercise of any demand
registration rights (other than the demand registration rights under Section 1
hereof) within five (5) Business Days after the Company receives notice of such
demand. Such notice shall offer such Holders the opportunity to register such
amount of Registrable Securities as they shall request (a "Piggyback
Registration"). Subject to Sections 3(a) and 3(b) hereof, the Company shall
include in each such Piggyback Registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within fifteen (15) days after such notice has been given by the Company to the
Holders. If the Registration Statement relating to the Piggyback Registration is
to cover an underwritten offering, such Registrable Securities shall be included
in the underwriting on the same terms and conditions as the securities otherwise
being sold through the underwriters. The Holders shall be permitted to withdraw
all or part of the Registrable Securities from a Piggyback Registration at any
time prior to the effective time of such Piggyback Registration.
(b) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company by or through one
or more underwriters of recognized standing and the managing underwriters
thereof advise the Company in writing that in their good faith judgment the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without materially and adversely
affecting the marketability of the offering, then the Company will include in
the Registration Statement relating to such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration by the Holders thereof, reduced,
if necessary, on a pro rata basis, based on the number of shares of Registrable
Securities owned by each such Holder, and (iii) third, if no Registrable
Securities had to be excluded pursuant to this Section 2(b), securities other
than Registrable Securities requested to be included in such registration,
reduced, if necessary, on a pro rata basis, based on the amount of such other
securities owned by such other holders; provided that, if such registration
contemplates an "over-allotment option" on the part of underwriters, to the
extent such over-allotment option is exercised and the Holders were excluded
from registering any of the Registrable Securities they requested be included in
such registration (the "Excluded Registrable Securities") pursuant to the
priority provisions of Section 2(b) or 2(c), then the over-allotment option
shall be fulfilled through the registration and sale of the Excluded Registrable
Securities, subject to the priority provisions of Section 2(b)(ii) above.
(c) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of any holders of the
Company's securities, by or through one or more underwriters of recognized
standing and the managing underwriters advise the Company in writing that in
their good faith judgment the number of securities requested to be included in
such registration exceeds the number which can be sold in such offering without
materially and adversely affecting the marketability of the offering, the
Company will include in such registration, (i) first, the securities proposed to
be sold by the Person initiating such registration, (ii) second, the Registrable
Securities requested to be included in such registration by the Holders thereof
and other securities requested to be included in such registration by other
Persons exercising piggyback rights granted to them by the Company on or prior
to the date hereof, reduced, if necessary, on a pro rata basis, based on the
number of shares of Registrable Securities and such other securities owned by
each Holder and each other Person and (iii) third, the securities owned by such
other holders exercising the piggyback rights granted by the Company after the
date hereof.
SECTION 3. Holdback Agreements; Participation in Underwritten
Registrations.
(a) Holdback Agreement of Holders of Registrable Securities. If the
Company shall at any time register securities under the Securities Act
(including any registration pursuant to Sections 1 and 2 hereof), each Holder
agrees, if so requested (pursuant to timely notice) by the managing underwriter
of an underwritten registration not to effect any public sale or public
distribution of any securities of the Company, other than those securities
included in a registration pursuant Sections 1 or 2 hereof without the prior
written consent of the Company (or such managing underwriter), during the thirty
(30) days prior to the effective date of such registration and until the earlier
of (i) the end of the 90-day period beginning on the effective date of such
registration and (ii) the abandonment of such offering. Notwithstanding the
provisions of the preceding sentence, a Holder may sell any or all of its
Registrable Securities in a private sale. The Company may legend and impose stop
transfer instructions on any certificate evidencing securities relating to the
restrictions provided in this Section 3(a).
None of the foregoing provisions of this Section 3(a) shall apply to
any Holder if such Holder is prevented by applicable statute or regulation from
entering into any such agreement; provided, that any such Holder shall undertake
not to effect any public sale or public distribution of the applicable class of
Registrable Securities unless it has provided 45 days' prior written notice of
such sale or distribution to the underwriter or underwriters.
(b) Holdback Agreement of the Company. During the period (x) beginning
30 days prior to the effective date of any registration statement filed with
respect to Registrable Securities pursuant to a Demand Registration or Piggyback
Registration in which any Holder or any group of Holders has requested the sale
of Registrable Securities representing more than 3% of the then outstanding
Common Stock of the Company and such registration is an underwritten public
offering and (y) ending 90 days after the effective date of any such
registration statement (if such lock-up period is required by the underwriters),
the Company shall not (except as part of such registration) effect any public
sale or public distribution of any of its equity securities or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (other than in connection with any employee stock option or other
benefit plan). The Company shall use its reasonable best efforts to cause each
of its directors and members of management to agree, orally or in writing to be
bound to provisions substantially similar to those set forth in this Section
3(b).
(c) Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) timely completes and executes all
questionnaires, customary powers of attorney, customary indemnities, customary
underwriting agreements and other customary documents required under the terms
of such underwriting arrangements; provided, that no Holder included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such Holder's title to securities included in such
registration and its authorization to transfer such securities.
SECTION 4. Registration Procedures. Whenever the Company is required
to register Registrable Securities pursuant to Section 1 or 2 hereof, the
Company will use its best efforts to effect the registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of disposition thereof, and pursuant thereto the Company will as expeditiously
as possible:
(a) prepare and file with the Commission as soon as practicable a
Registration Statement with respect to such Registrable Securities as
prescribed by Section 1 or 2 on a form available for the sale of the
Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof and use its best efforts
to cause each such Registration Statement to become and remain effective
for up to 180 days; provided, however, that before filing a Registration
Statement, the Company will furnish to the Holders of the Registrable
Securities covered by such Registration Statement, the underwriters, if
any, and any attorney, accountant or other agent retained by any such
Holder of Registrable Securities or underwriters (i) copies of all such
documents proposed to be filed, which documents will be subject to the
review and comment of such Holders, their counsel and underwriters, if any,
and (ii) if requested, financial and other information required by the
Commission to be included in such Registration Statement and all financial
and other records, pertinent corporate documents and properties of the
Company customarily reviewed in connection with an underwritten
registration; and shall cause the officers, directors and employees of the
Company, counsel to the Company and independent certified public
accountants of the Company, to respond to such inquiries and supply all
information, as shall be necessary, in the opinion of respective counsel to
such Holders and underwriters, to conduct a reasonable investigation within
the meaning of the Securities Act, and will not file any Registration
Statement to which the holders of at least a majority of the Registrable
Securities covered by such Registration Statement or the underwriters, if
any, shall reasonably object;
(b) prepare and file with the Commission such amendments,
post-effective amendments and prospectus supplements to such Registration
Statement as may be necessary to keep such Registration Statement effective
and to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement until
such time as all of such securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof
set forth in such Registration Statement; provided, that the Company shall
be deemed not to have used its best efforts to keep a Registration
Statement effective during the applicable period if it voluntarily takes
any action that results in the selling Holders of the Registrable
Securities covered thereby not being able to sell such Registrable
Securities during that period;
(c) furnish to each selling Holder of Registrable Securities covered
by a registration statement and to each underwriter, if any, such number of
copies of such registration statement, each amendment and post-effective
amendment thereto, the prospectus included in such registration statement
(including each preliminary prospectus and any supplement to such
prospectus and any other prospectus filed under Rule 424 of the Securities
Act), in each case including all exhibits, and such other documents as such
seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller or to be disposed of by such
underwriter (the Company hereby consenting to the use in accordance with
all applicable law of each such registration statement (or amendment or
post-effective amendment thereto) and each such prospectus (or preliminary
prospectus or supplement thereto) by each such seller and the underwriters,
if any, in connection with the offering and sale of the Registrable
Securities covered by such registration statement or prospectus);
(d) use its best efforts to register or qualify and, if applicable, to
cooperate with the selling Holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, the securities to be included in a Registration
Statement for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States of America as any selling Holder or
managing underwriters (if any) shall reasonably request, to keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and to
do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the securities covered by the
applicable Registration Statement; provided that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this paragraph or
(ii) consent to general service of process in any such jurisdiction;
(e) cause all such Registrable Securities to be listed on each
securities exchange on which securities of the same class as the
Registrable Securities are then listed and, if not so listed, to be listed
on the NASD automated quotation system and, if listed on the NASD automated
quotation system, use its best efforts to secure designation of all such
Registrable Securities covered by such Registration Statement as a NASDAQ
Security within the meaning of Rule 11Aa3-l under the Exchange Act or,
failing that, to secure NASDAQ authorization for such Registrable
Securities and, without limiting the generality of the foregoing, to use
its best efforts to arrange for at least two market makers to register as
such with respect to such Registrable Securities with the NASD;
(f) provide a transfer agent and registrar for all such Registrable
Securities and a CUSIP number for all such Registrable Securities not later
than the effective date of such Registration Statement;
(g) comply with all applicable rules and regulations of the
Commission, and make available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (or in each case within such extended period of time as may be
permitted by the Commission for filing the applicable report with the
Commission) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering or (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter
of the Company after the effective date of a Registration Statement, which
earnings statement shall cover said 12-month periods;
(h) permit any Holder which, in its sole and exclusive judgment, might
be deemed to be an underwriter or a controlling person of the Company, to
participate in the preparation of such registration or comparable statement
and to require the insertion therein of material, furnished to the Company
in writing, which in the reasonable judgment of such Holder and its counsel
should be included;
(i) use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or suspending the
qualification (or exemption from qualification) of any of the securities
included therein for sale in any jurisdiction within the United States of
America, and, in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending the
qualification of any securities included in such Registration Statement for
sale in any jurisdiction within the United States of America, the Company
will use its best efforts promptly to obtain the withdrawal of such order
at the earliest possible moment;
(j) if the Piggyback Registration or Demand Registration is an
underwritten registration, obtain "cold comfort" letters and updates
thereof (which letters and updates (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and counsel
to the selling Holders of Registrable Securities) from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, if any, and each selling
Holder of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with underwritten offerings and such other matters as the
underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold may reasonably request;
(k) obtain opinions of independent counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and counsel
to the selling Holders of the Registrable Securities being sold), addressed
to each selling Holder and each of the underwriters, if any, covering the
matters customarily covered in opinions of issuer's counsel requested in
underwritten offerings, such as the effectiveness of the Registration
Statement and such other matters as may be requested by such counsel and
underwriters, if any;
(l) promptly (but in any event, within two (2) business days) notify
the selling Holders of Registrable Securities, their counsel and the
managing underwriters, if any, and confirm such notice in writing,
(i) when a prospectus or any supplement or post-effective
amendment to such prospectus has been filed, and, with respect to a
Registration Statement or any post-effective amendment thereto, when
the same has become effective,
(ii) of any request by the Commission or any other Federal or
state governmental authority for amendments or supplements to a
Registration Statement or related prospectus or for additional
information,
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any prospectus or the
initiation of any proceedings by any Person for that purpose,
(iv) if at any time the representations and warranties of the
Company contemplated by clause (i) of paragraph (q) below cease to be
true and correct in any respect,
(v) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Securities for offer or sale under the securities or blue sky laws of
any jurisdiction, or the contemplation, initiation or threatening, of
any proceeding for such purpose,
(vi) of the happening of any event that makes any statement made
in such Registration Statement untrue in any material respect or that
requires the making of any changes in such Registration Statement so
that it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made (in the case of any
prospectus), not misleading, and
(vii) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be
appropriate;
(m) if requested by the managing underwriters, if any, or a Holder of
Registrable Securities being sold, promptly incorporate in a prospectus,
supplement or post-effective amendment such information as the managing
underwriters, if any, and the Holders of the Registrable Securities being
sold reasonably request to be included therein relating to the sale of the
Registrable Securities, including, without limitation, information with
respect to the number of shares of Registrable Securities being sold to
underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering, and
make all required filings of such prospectus, supplement or post-effective
amendment promptly following notification of the matters to be incorporated
in such supplement or post-effective amendment;
(n) furnish to each selling Holder of Registrable Securities and the
managing underwriter, without charge, at least one signed copy of the
Registration Statement;
(o) cooperate with the selling Holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities not
bearing any restrictive legends and in a form eligible for deposit with The
Depository Trust Company to be sold and cause such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriters, if any, or each Holder of Registrable Securities may request
at least three (3) business days prior to any sale of Registrable
Securities to the underwriters;
(p) as promptly as practicable upon the occurrence of any event
contemplated by clause0 (vi) of paragraph (l) above, prepare a supplement
or post-effective amendment to the Registration Statement, or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities being sold hereunder, the prospectus will not
contain an untrue statement of a material fact or an omission to state a
material fact required to be stated in a Registration Statement or
prospectus or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(q) enter into such agreements (including underwriting agreements in
customary form, scope and substance) and take all such other actions in
connection therewith as the Holders of a majority of the Registrable
Securities being sold or the underwriters, if any, reasonably request in
order to expedite or facilitate the registration or the disposition of such
Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, with respect
to the business of the Company and the Registration Statement, in
form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same, if and
when requested;
(ii) if an underwriting agreement is entered into, cause the same
to include the indemnification and contribution provisions and
procedures substantially similar to (and no less favorable to the
selling holders of Registrable Securities and the underwriters than)0
those contained in Section 6 hereof with respect to all parties to be
indemnified pursuant to said Section (or, with respect to the
indemnification of such underwriters, such similar indemnification and
contribution provisions as such underwriters shall customarily
require); and
(iii) deliver such documents and certificates as may be requested
by the Holders of Registrable Securities being sold and managing
underwriters, if any, to evidence compliance with clause (i) above and
with any conditions contained in the underwriting agreement or other
similar agreement entered into by the Company, it being understood
that the above shall be done at each closing under such underwriting
or similar agreement or as and to the extent otherwise reasonably
requested by the holders of a majority of the Registrable Securities
being sold.
(r) cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the NASD;
(s) use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by the Registration
Statement contemplated hereby; and
(t) cause its employees and personnel to use their commercially
reasonable efforts to support the marketing of the Registrable Securities
(including, without limitation, the participation in one (1) "road show"
as requested by a majority of the Holders participating in a Demand
Registration) to the extent possible taking into account the Company's
business needs and the requirements of the marketing process.
Each Holder agrees by acquisition of such Registrable Securities that,
upon receipt of written notice from the Company of the happening of any event of
the kind described in Section 4(l)(ii), 4(l)(iii), 4(l)(v), 4(l)(vi) or
4(l)(vii), such Holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Registration
Statement contemplated by Section 4(p), or until it is advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such prospectus,
and, if so directed by the Company, such Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Company shall give any
such notice, the time periods mentioned in Section 1 hereof shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement receives (x) the copies of the
supplemented or amended prospectus contemplated by Section 4(p) hereof or (y)
the Advice, as the case may be.
SECTION 5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation (i) all
registration, filing fees and expenses (including fees with respect to filings
made with NASD (including, if applicable, the fees and expenses of any
"qualified independent underwriter", as may be required by the rules and
regulations of the NASD), (ii) fees and expenses of compliance with all Federal
securities and State "blue sky" laws (including fees and disbursements of
counsel for the underwriters and selling Holders (including local counsel) in
connection with blue sky qualifications of the Registrable Securities and
determinations of their eligibility for investment under the laws of such
jurisdiction as the managing underwriters or Holders of a majority of the
Registrable Securities being sold may designate), (iii) printing expenses
(including printing certificates for the Registrable Securities to be sold and
the Registration Statements), messenger and delivery expenses, duplication, word
processing, and telephone expenses, (iv) fees and disbursements of counsel for
the Company, and (v) fees and disbursements of all independent certified public
accountants of the Company incurred in connection with such registration
(including the expenses of any special audit and "cold comfort" letters incident
to such registration), underwriters (excluding discounts, commissions or fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the distribution of the Registrable Securities) and
other Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne by the Company regardless of whether a
Registration Statement becomes effective; provided that the Company will, in any
event, pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expenses of any annual audit or quarterly review, the fees and
expenses of any Person, including special experts, retained by the Company, the
expense of any liability insurance and the fees and expenses of one special
counsel for the Holders of Registrable Securities being sold and expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system.
SECTION 6. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify,
to the fullest extent permitted by law, each Holder and each officer, director,
employee, counsel, agent or representative of such Holder and each Person who
controls any such Person (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) against, and hold it and them
harmless from, all losses, claims, damages, liabilities, costs (including,
without limitation, costs of preparation and attorneys' fees and disbursements)
and expenses, including expenses of investigation (collectively, "Losses")
arising out of, caused by or based upon any untrue or alleged untrue statement
of material fact contained in any Registration Statement, or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading (a "Misstatement/Omission"),
except that the Company shall not be liable (i) insofar as such
Misstatement/Omission is based upon and in conformity with information furnished
in writing to the Company by a Holder expressly for use therein and (ii) to the
extent that any such claim arises out of or is based upon a
Misstatement/Omission made in any preliminary prospectus, (x) to the extent such
Misstatement/Omission is corrected in the final prospectus and (y) having
previously been timely furnished by or on behalf of the Company with sufficient
copies of the final prospectus, such indemnified Person thereafter fails to
deliver such prospectus prior to or concurrently with the sale to the Person who
purchased a Registrable Security from such indemnified Person and who is
asserting such claim. In connection with an underwritten offering, the Company
will indemnify such underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls (within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act) such
underwriters to the same extent as provided above with respect to the
indemnification of the Holders. This indemnity shall be in addition to any other
indemnification arrangements to which the Company may otherwise be party.
(b) Indemnification by Holders. In connection with any Registration
Statement in which a Holder is participating, each such Holder will furnish to
the Company in writing such powers of attorney, custody agreements and letters
of direction and other information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement, and each
such Holder agrees to indemnify, to the fullest extent permitted by law, the
Company, its directors and officers and each Person who controls the Company
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) against, and hold it and them harmless from, any Losses
resulting from any Misstatement/Omission, but only to the extent that such
Misstatement/Omission is based upon and in conformity with information furnished
in writing by such Holder expressly for use in such Registration Statement;
provided that the obligation to indemnify will be individual (several and not
joint) to each Holder and will be limited to the net amount of proceeds (net of
payment of all expenses) received by such Holder from the sale of Registrable
Securities pursuant to such Registration Statement giving rise to such
indemnification obligation.
(c) In case any action, claim or proceeding shall be brought against
any Person entitled to indemnification hereunder, such indemnified party shall
promptly notify each indemnifying party in writing, and such indemnifying party
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses
incurred in connection with the defense thereof. The failure to so notify such
indemnifying party shall not affect any obligation it may have to any
indemnified party under this Agreement or otherwise except to the extent that
(as finally determined by a court of competent jurisdiction (which determination
is not subject to review or appeal)) such failure materially and adversely
prejudiced such indemnifying party. Each indemnified party shall have the right
to employ separate counsel in such action, claim or proceeding and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of each indemnified party unless: (i) such indemnifying party has
agreed to pay such expenses; (ii) such indemnifying party has failed promptly to
assume the defense and employ counsel reasonably satisfactory to such
indemnified party; or (iii) the named parties to any such action, claim or
proceeding (including any impleaded parties) include both such indemnified party
and such indemnifying party or an affiliate or controlling person of such
indemnifying party, and such indemnified party shall have been advised in
writing by counsel that either (x) there may be one or more legal defenses
available to it which are different from or in addition to those available to
such indemnifying party or such affiliate or controlling person or (y) a
conflict of interest may exist if such counsel represents such indemnified party
and such indemnifying party or its Affiliate or controlling person; provided,
however, that such indemnifying party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be responsible hereunder for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel), which
counsel shall be designated by such indemnified party.
No indemnified party shall be liable for any settlement effected
without its written consent. Each indemnifying party agrees, jointly and
severally, that it will not, without the indemnified party's prior written
consent, consent to entry of any judgment or settle or compromise any pending or
threatened claim, action or proceeding in respect of which indemnification or
contribution may be sought hereunder unless the foregoing contains an
unconditional release, in form and substance reasonably satisfactory to the
indemnified parties, of the indemnified parties from all liability and
obligation arising therefrom.
(d) The indemnifying party's liability to any such indemnified party
hereunder shall not be extinguished solely because any other indemnified party
is not entitled to indemnity hereunder.
(e) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party, and will survive the transfer of securities.
(f) Contribution. If the indemnification provided for in this Section
6 is unavailable to, or insufficient to hold harmless, an indemnified party
under Section 6(a) or Section 6(b) above in respect of any Losses referred to in
such Sections, then each applicable indemnifying party shall have an obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses in such proportion as is appropriate to reflect the
relative fault of the Company, on the one hand, and of the Holder, on the other,
in connection with the Misstatement/Omission which resulted in such Losses,
taking into account any other relevant equitable considerations. The amount paid
or payable by a party as a result of the Losses referred to above shall be
deemed to include, subject to the limitations set forth in Section 6(c) above,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation, lawsuit or legal or administrative action or
proceeding.
The relative fault of the Company, on the one hand, and of the Holder,
on the other, shall be determined by reference to, among other things, whether
the relevant Misstatement/Omission relates to information supplied by the
Company or by the Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Misstatement/Omission.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 6(f) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 6(f), a Holder shall not be required to contribute
any amount in excess of the amount such Holder would have been required to pay
to an indemnified party if the indemnity under Section 6(b) was available.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 6
are in addition to any liability that the indemnifying parties may have to the
indemnified parties.
SECTION 7. Rules 144 and 144A.
The Company shall timely file the reports required to be filed by it
under the Securities Act and the Exchange Act (including but not limited to the
reports under sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 adopted by the Commission under the Securities Act)
and the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such reports, it will, upon the request of any
Holder of Registrable Securities, make publicly available other information) and
will take such further action as any Holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission. Upon
the request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with the filing
requirements of this Section 6.
SECTION 8. Definitions.
"Advice" shall have the meaning provided in Section 4.
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means the Company's Common Stock, par value $.001 per
share, or any other shares of capital stock or other securities of the Company
into which such shares of Common Stock shall be reclassified or changed,
including, by reason of a merger, consolidation, reorganization or
recapitalization. If the Common Stock has been so reclassified or changed, or if
the Company pays a dividend or makes a distribution on the Common Stock in
shares of capital stock, or subdivides (or combines) its outstanding shares of
Common Stock into a greater (or smaller) number of shares of Common Stock, a
share of Common Stock shall be deemed to be such number of shares of stock and
amount of other securities to which a holder of a share of Common Stock
outstanding immediately prior to such change, reclassification, exchange,
dividend, distribution, subdivision or combination would be entitled. "Company"
shall have the meaning provided in the first paragraph of this Agreement.
"Demand Registration" shall have the meaning provided in Section 1(a).
"Demand Request" shall have the meaning provided in Section 1(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any similar Federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
"Holder" means any Person who owns Warrants or Warrant Shares.
"Losses" shall have the meaning provided in Section 6(a).
"Misstatement/Omission" shall have the meaning provided in Section
6(a).
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Piggyback Registration" shall have the meaning provided in Section
2(a).
"Purchaser" shall have the meaning provided in the first paragraph of
this Agreement.
"Registrable Securities" means (i) any of the shares of Common Stock
issuable upon the exercise of the Warrants and (ii) any securities issued or
issuable with respect to such Common Stock referred to in clause (i) above by
way of stock dividends or stock splits or in connection with a combination of
shares, recapitalization, merger, consolidation, or other reorganization or
otherwise. As to any particular Registrable Securities, such securities will
cease to be Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold to the
public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act or any successor rule. The foregoing notwithstanding, a
security will not cease to be a Registrable Security until all stop transfer
instructions or notations and restrictive legends with respect to such security
have been lifted or removed.
"Registration Expenses" shall have the meaning provided in Section
5(a).
"Registration Statement" means any registration statement (including a
shelf registration) under the Securities Act of the Company that covers any of
the Registrable Securities pursuant to the provisions of this Agreement,
including the related prospectus, all amendments and supplements to such
registration statement, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Required Holders" means Holders of at least a majority of the
aggregate amount of all Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any similar Federal statute, and the rules and regulations of
the Commission promulgated thereunder, all as the same shall be in effect at the
time.
"Shelf Registration" shall have the meaning set forth in Section 1(b)
of this Agreement.
"Subordinated Loan Agreement" shall mean the Senior Subordinated Loan
Agreement dated as of January 29, 1999 among the Company and the Purchasers, as
amended, amended and restated, supplemented, restructured or otherwise modified
from time to time (in whole or in part and without limitation as to terms,
conditions or covenants and without regard to the principal amount thereof) and
in effect, including all related notes, collateral documents, guaranties,
instruments and agreements entered into in connection therewith, and any
successive restructurings, renewals, extensions or refinancings thereof.
"Warrant Agreement" means the Warrant Agreement dated as of the date
hereof by and between the Company and the Purchasers.
"Warrants" shall mean the warrants to purchase in the aggregate
506,250 shares of Warrant Shares issued to the Purchasers pursuant to the
Subordinated Loan Agreement.
"Warrant Shares" means the Common Stock issuable upon the exercise of
Warrants.
Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Warrant Agreement.
SECTION 10. Miscellaneous.
(a) No Inconsistent Agreements. The registration rights granted to the
Purchasers hereby do not and shall not conflict with any other registration
rights granted by the Company. The Company shall not, after the date hereof,
grant any other registration rights which conflict with, impair or are otherwise
senior to the registration rights granted hereby.
(b) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights provided in the Warrant Purchase Agreement, the
Warrant Agreement or granted by law, it being understood and agreed that the
Company shall not be liable for any decrease in value of Registrable Securities
arising from circumstances beyond its control. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance or injunctive relief that a remedy at law would
be adequate. Accordingly, any party may in its sole discretion apply to any
court of law or equity of competent jurisdiction (without posting any bond or
other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement, including the provisions of this sentence, may be
amended, modified, supplemented or waived only upon the prior written consent of
the Company and the Holders of a majority of the outstanding Warrants and
Warrant Shares; provided that any such amendment, modification, supplement or
waiver shall not effect the rights of any Holder under this Agreement without
such Holder's consent.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of any
Purchaser or Holder are also for the benefit of, and enforceable by, any
subsequent Holder of Registrable Securities (except in the event such subsequent
Holder is a direct competitor of the Company (as determined in good faith by
management of the Company)). The Company may not assign its rights or
obligations hereunder without prior written consent of each Holder except by
operation of law.
(e) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected, it
being intended that the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, any one of which need not contain the signatures of more than one
party, but each of which when so executed shall be deemed to be an original and
all such counterparts taken together shall constitute one and the same
Agreement.
(g) Descriptive Headings: Interpretation. The descriptive headings of
this Agreement are inserted for convenience of reference only and shall not
limit or otherwise affect the meaning hereof. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation.
(h) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable air courier guaranteeing overnight
delivery (charges prepaid), mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid or sent by facsimile. Such
notices, demands and other communications shall be sent to each Purchaser at the
address indicated below the Purchasers' name on the signature pages hereto and
to the Company at the address indicated below:
Consolidated Delivery & Logistics, Inc.
380 Allwood Road
Clifton, New Jersey 07012
Attention: Albert W. Van Ness, Jr.
Chief Executive Officer
Tel: (973) 471-1005
Fax: (973) 471-5519
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. Any
notice, demand or other communication given hereunder will be deemed to have
been given as of the date so delivered; as of the first business day after being
delivered to an overnight air courier guaranteeing overnight delivery; on the
fifth business day after being mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; as the case may be.
(i) Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York. Each of the Company and each Holder hereby irrevocably submits to the
jurisdiction of any New York State Court sitting in the Borough of Manhattan in
the City of New York or any Federal court sitting in the Borough of Manhattan in
the City of New York in respect of any suit, action or proceeding arising out of
or relating to this Agreement and the Registrable Securities, and irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, jurisdiction of the aforesaid courts. Each of the Company and
each Holder irrevocably waives, to the fullest extent it may effectively do so
under applicable law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding has been brought in
an inconvenient forum. Nothing herein shall affect the right of any Holder to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company in any other jurisdiction.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(k) Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
* * * *
IN WITNESS WHEREOF the parties hereto have or have caused this
Registration Agreement to be duly executed as of the date first above written.
CONSOLIDATED DELIVERY &
LOGISTICS, INC.
By: /s/ Albert Van Ness, Jr.
Name: Albert Van Ness, Jr.
Title: Chief Executive Officer
PARIBAS CAPITAL FUNDING LLC
By: /s/ Jeffrey Youle
Name: Jeffry Youle
Title: Managing Director
By:
Name:
Title:
Address for Notices:
787 Seventh Avenue
New York, New York 10019
Attention: Joseph Kaufman
Tel:(212) 841-2000
Fax:(212) 841-2144
EXETER VENTURE LENDERS, L.P.
By Exeter Venture Advisors, Inc.,
its General Partner
By: /s/ Kurt Bergquist
Name: Kurt Bergquist
Title: Vice President
Address for Notices:
10 East 53rd Street, 32nd Floor
New York, New York 10022
Attention: Keith R. Fox
Tel:(212) 872-1172
Fax:(212) 872-1198
EXETER CAPITAL PARTNERS IV, L.P.
By Exeter IV Advisors, L.P.,
its General Partner
By Exeter IV Advisors, Inc.,
its General Partner
By: /s/ Kurt Bergquist
Name: Kurt Bergquist
Title: Vice President
Address for Notices:
10 East 53rd Street, 32nd Floor
New York, New York 10022
Attention: Keith R. Fox
Tel:(212) 872-1172
Fax:(212) 872-1198
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: July 16, 1999 CONSOLIDATED DELIVERY & LOGISTICS, INC.
(Registrant)
By:___________________________
Albert W. Van Ness, Jr.
Chairman of the Board, Chief
Executive Officer and Chief
Financial Officer
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: July 16, 1999 CONSOLIDATED DELIVERY & LOGISTICS, INC.
(Registrant)
By: /s/ Albert W. Van Ness, Jr.
Albert W. Van Ness, Jr.
Chairman of the Board, Chief Executive
Officer and Chief Financial Officer