UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
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 of (I.R.S. Employer
Incorporation or Organization) Identification No.)
380 Allwood Road
Clifton, New Jersey 07012
(973) 471-1005
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
--------------------------
Albert Van Ness, Jr., Chairman Copies to:
Consolidated Delivery & Logistics, Inc. Alan Wovsaniker, Esq.
380 Allwood Road Lowenstein Sandler PC
Clifton, New Jersey 07012 65 Livingston Avenue
(973) 471-1005 Roseland New Jersey 07068
(Name, Address, Including Zip Code, and (973) 597-2500
Telephone Number, Including
Area Code, of Agent for Service)
--------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement, as determined by
the Selling Securityholder.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
-------------------------- ----------------------- ------------------------- ------------------------- -------------------
Title of Each Class of Proposed Maximum Amount of
Securities to be Amount to be Proposed Maximum Aggregate Offering Registration Fee
Registered Registered(1) Offering Price Per Price (2)
Unit
-------------------------- ----------------------- ------------------------- ------------------------- -------------------
Common Stock ($.001 par
value) 338,216 $2.78 $940,917 $278(3)
-------------------------- ----------------------- ------------------------- ------------------------- -------------------
(1) The shares of Common Stock being offered hereby are issuable upon
conversion of the Registrant's Subordinated Convertible Notes due 1999 and
2003, respectively (the "Notes"). Pursuant to Rule 416, there are also
being registered an indeterminate number of shares of the Registrant's
Common Stock which may become issuable pursuant to the antidilution
provisions of such Notes.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon a price of $2.78 per share, which was
the average of the high and low sale prices of the Common Stock as
reported on the Nasdaq National Market on October 12, 1998.
(3) Previously paid.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
PROSPECTUS
CONSOLIDATED DELIVERY & LOGISTICS, INC.
338,216 Shares
Common Stock
The selling securityholder listed below is offering and
selling 338,216 shares of our common stock under this Prospectus.
On August 5, 1998, we issued subordinated convertible notes
due 1999 and 2003 to the selling securityholder upon the acquisition of KBD
Services, Inc. These notes are convertible into a maximum of 338,216 shares of
our common stock. We have filed this Prospectus to register the shares of common
stock underlying the notes so that the selling securityholder may offer and sell
the shares of common stock in the public market and otherwise after converting
the notes.
The selling securityholder may offer his common stock through
public or private transactions, on or off the Nasdaq National Market, at
prevailing market prices, or at privately negotiated prices. We will not receive
any of the proceeds from the sale of the common stock by the selling
securityholder, but will pay all registration expenses.
Our common stock is listed on the Nasdaq National Market under
the symbol "CDLI". On November 23, 1998, the closing price of the common stock
on the Nasdaq National Market was $3.125 per share.
Our principal executive offices are located at 380 Allwood
Road, Clifton, New Jersey 07012 and our telephone number at that address is
(973) 471-1005.
---------------------
THE SHARES OF COMMON STOCK OFFERED OR SOLD UNDER THIS PROSPECTUS INVOLVE A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this Prospectus. Any representation to the contrary is a
criminal offense.
---------------------
The date of this Prospectus is ___________ ___, 1998.
WHERE YOU CAN FIND MORE INFORMATION
Consolidated Delivery & Logistics, Inc. is subject to the
information requirements of the Securities Exchange Act of 1934 (the "Exchange
Act"). In accordance with the Exchange Act, we file annual, quarterly, and
current reports, proxy statements, and other documents with the Securities and
Exchange Commission ("SEC"). You may read and copy any document we file at the
SEC's public reference rooms at the following locations:
o Main Public Reference Room
Judiciary Plaza Building
450 Fifth Street, N.W.
Washington, D.C. 20549
o Regional Public Reference Room
75 Park Place, 14th Floor
New York, New York 10007
You may obtain information on the operation of the SEC's public reference rooms
by calling 1-800-SEC-0330. We are required to file these documents with the SEC
electronically. You can access the electronic versions of these filings on the
Internet at the SEC's website, located at http://www.sec.gov.
This Prospectus is part of a Registration Statement that we
filed with the SEC. The Registration Statement contains more information than
this Prospectus regarding Consolidated Delivery & Logistics, Inc. and its common
stock, including certain exhibits. You can get a copy of the Registration
Statement from the SEC at the address listed above or from its Internet site.
The SEC allows us to "incorporate" into this Prospectus
information we file with it in other documents. This means that we can disclose
important information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be part
of this Prospectus, and information we file later with the SEC will
automatically update and supersede this information. For further information
about us and our common stock, you should refer to the Registration Statement
and the following documents which we are incorporating by reference (except to
the extent information in those documents is different from the information
contained in this Prospectus):
(i) Our Annual Report on Form 10-K for the year ended
December 31, 1997;
(ii) Our Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30, and September 30, 1998;
(iii) Our Current Reports on Form 8-K filed with the SEC on
July 16, August 18, August 19, and September 28, 1998 and on Form 8-K/A filed
with the SEC on September 15, and October 19, 1998;
(iv) Our definitive Proxy Statement for our 1998 Annual
Meeting of Stockholders;
(v) The description of our common stock set forth in our
Registration Statement filed pursuant to Section 12 of the Exchange Act and any
amendment or report filed for the purpose of updating such description; and
(vi) All documents we file pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Prospectus until we
terminate the offering of these shares.
We will provide without charge to each person, including any
beneficial owner of common stock to whom this Prospectus is delivered, upon
written or oral request of such person, a copy of any and all of the documents
that have been incorporated by reference in this Prospectus (not including
exhibits to such documents unless such exhibits are specifically incorporated by
reference therein). Requests for such copies should be directed to: Consolidated
Delivery & Logistics, Inc., 380 Allwood Road, Clifton, New Jersey 07012
Attention: Secretary (telephone (973) 471-1005).
You should rely only on the information contained or
incorporated by reference in this document. We have not authorized anyone to
provide you with information that is different. The common stock is not being
offered in any state where the offer is not permitted. You should not assume
that the information in this Prospectus is accurate as of any date other than
the date on the front of this Prospectus.
Unless the context indicates otherwise, the term the "Company"
or references to "we," "us," and "our" in this Prospectus refer to Consolidated
Delivery & Logistics and its subsidiaries.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated by reference herein
include certain statements that may be deemed to be "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933 (the "Securities
Act") and Section 21E of the Exchange Act. All statements, other than statements
of historical facts, included in this Prospectus that address activities, events
or developments that the Company expects, believes or anticipates will or may
occur in the future, including, but not limited to, such matters as future
business development, business strategies, expansion and growth of the Company's
operations and other such matters are forward-looking statements. These
statements are based on certain assumptions and analyses made by the Company in
light of its experience and perception of historical trends, current conditions,
expected future developments and other factors it believes are appropriate in
the circumstances. Such statements are subject to a number of assumptions, risks
and uncertainties, including the risk factors discussed below, general economic
and business conditions, the business opportunities (or lack thereof) that may
be presented to and pursued by the Company, changes in law or regulations and
other factors, many of which are beyond the control of the Company. Prospective
investors are cautioned that any such statements are not guarantees of future
performance and that actual results or developments may differ materially from
those projected in the forward-looking statements.
RISK FACTORS
You should consider the following risks carefully before deciding to
purchase shares of our common stock. The risks described below are not the only
ones that we face. Additional risks about which we do not yet know or that we
currently think are immaterial may also impair our business operations. Our
business, operating results or financial condition could be materially adversely
affected by any of the following risks. The trading price of our common stock
could decline due to any of these risks, and you may lose all or a part of your
investment. You should also refer to the other information set forth in this
Prospectus. This Prospectus contains forward-looking statements. These
statements relate to future events or our future financial performance. In some
cases you can identify forward-looking statements by terminology such as "may,"
"will," "expect," "believe," "intend," "anticipate," "estimate," or similar
words. These statements are only predictions and are based on our current
beliefs, expectations and assumptions and are subject to a number of risks and
uncertainties. Actual results and events may vary materially from those
discussed in the forward looking statements. We discuss risks and uncertainties
that might cause such a difference below and elsewhere in this Prospectus.
Limited Combined Operating History
We conducted no operations and generated no revenue prior to our
initial public offering in November, 1995. At the time of our initial public
offering, we acquired eleven companies in the same-day delivery business. Since
then, we have acquired several additional businesses. Prior to their acquisition
by us, the companies that we have acquired were operated as independent
entities. The process of integrating the operations of these businesses into our
business may involve unforeseen difficulties and may require a significant
amount of our financial and other resources, including management time. We
cannot assure you that we will be able to integrate the operations of these
businesses successfully into our operations. In addition, to manage the combined
enterprise on a profitable basis we must conform all acquired companies into
certain necessary common systems and procedures, including computer and
accounting systems. We cannot be certain that we will successfully institute
theses common systems and procedures for all acquired companies. Our inability
to integrate or successfully manage the companies we have acquired or acquire in
the future could have a material adverse effect on our business, financial
condition and results of operations.
Ability to Manage Growth
We expect to expend significant time and effort in expanding our
business and acquiring other businesses. This growth may place a significant
strain on our resources. We cannot be certain that our systems, procedures and
controls will be adequate to support our operations as they expand. Any future
growth also will impose significant additional responsibilities on members of
our senior management, including the need to identify, recruit and integrate new
senior level managers and executives. We cannot be certain that we can identify
and retain such additional managers and executives. As a result, we cannot
assure you that we will be able to expand our business or manage any future
growth effectively and profitably.
Risks Related to Our Acquisition Strategy
In 1997 we curtailed our acquisition activity. One of our strategies
for 1998, however, is to increase our revenues and profitability and expand our
markets through the acquisition of selected companies in the same-day ground and
air delivery business. We may not be able to identify, acquire or manage
profitable additional businesses or integrate successfully any acquired
businesses without substantial costs, delays or other operational or financial
problems. Acquisitions involve a number of special risks, including:
Possible adverse affects on our operating results and the timing
of those results;
Diversion of management's attention;
Dependence on retaining, hiring and training of key personnel;
Risks associated with unanticipated problems or legal
liabilities; and
The realization of intangible assets.
Some or all of these additional risks could have a material adverse affect on
our business, financial condition and results of operations, especially in the
fiscal quarters immediately following the acquisition. If we are unable to
acquire additional same-day delivery companies or integrate those businesses
successfully, our ability to expand our operations and increase our revenues and
profitability could be reduced significantly.
Risks Related to Acquisition Financing
We cannot readily predict the timing, size and success of our
acquisition efforts or the capital we will need for these efforts. We currently
intend to finance future acquisitions by using a combination of our common
stock, notes and cash. If the common stock does not maintain a sufficient market
value, or if the owners of the businesses we wish to acquire are unwilling to
accept common stock as part of the purchase price, we may be required to use
more of our cash resources, if available, to maintain our acquisition program.
Using cash for acquisitions limits our financial flexibility and makes us more
likely to seek additional capital through borrowing money or selling stock.
While the Company is currently negotiating to obtain additional acquisition
financing, we may not be able to obtain the cash we will need for our
acquisition program on acceptable terms, or at all. This could have a material
adverse effect on our business, financial condition and results of operations.
In addition, our Revolving Facility currently restricts our ability to make
acquisitions.
Risks Associated With the Same-Day Delivery Industry; General Economic
Conditions
Our revenues and earnings are especially sensitive to events that
affect the delivery services industry, including:
Extreme weather conditions;
Economic factors affecting our significant customers;
Increases in fuel prices; and
Shortages of or disputes with labor.
Any of these factors could make it more difficult for us to service our clients
effectively.
Demand for our services may also be negatively impacted by down turns
in the level of general economic activity and employment. The development and
increased popularity of facsimile machines and electronic mail via the Internet
has reduced the demand for some of our services. The Company has changed its
focus to those delivery services involving items that are unable to be delivered
via these alternative methods. Other similar industry-wide developments could
have a material adverse effect on our business, financial condition or results
of operations.
Dependence on Technology
Our business is dependent upon several different information and
telecommunications technologies. If we are not able to process transactions
accurately and quickly, we may lose our customers and our reputation may be
diminished. We intend to integrate these separate operating systems of our
subsidiaries into an integrated company-wide system. We may encounter unexpected
delays and costs in integrating and converting these systems. This could have a
material adverse effect on our business, financial condition or results of
operations.
Independent Contractors and Employee Owners/Operators
Federal and state authorities have from time to time asserted that
independent contractors in the transportation industry, including those used by
the Company, are employees rather than independent contractors. We believe that
the independent contractors we use are not employees under existing
interpretations of Federal and state laws. Federal and state authorities could
challenge this position and laws, including tax laws, and interpretations of
various laws, may change. If the Company were required to pay for and administer
added benefits to independent contractors, our operating costs could
substantially increase. In addition, certain of our employees own and operate
their own vehicles. The Company is presently undergoing an employment tax
examination by the Internal Revenue Service (the "IRS"). The examination covers
certain payments made during the 1995, 1996 and 1997 tax years to employee owner
operators for all or a portion of the costs of operating their vehicles in the
course of their employment. The Company believes that these arrangements do not
represent additional compensation to those employees. However, there can be no
assurance that the IRS will not seek to recharacterize some or all of such
payments as additional compensation. If such amounts were recharacterized, the
Company could have to pay additional employment-related taxes on such amounts.
Claims Exposure
We use approximately 2,000 drivers in our business. These drivers are
involved in accidents from time to time. We currently carry liability insurance
of $1,000,000 for each accident (subject to applicable deductibles). We also
carry umbrella coverage up to $25 million and require our independent
contractors to maintain liability insurance of at least the minimum amounts
required by state and federal law. We cannot guarantee that claims against us
will not exceed the amount of coverage. If there were a material increase in the
frequency or severity of accidents, liability claims or workers compensation
claims against us, or unfavorable resolutions of those claims, our operating
results could be materially adversely affected. Significant increases in
insurance costs could reduce our profitability.
Shares Eligible For Future Sales
Sale of a large number of shares of our common stock in the market
could cause the market price of the common stock to drop. As of September 30,
1998, 6,637,517 shares of common stock were issued and outstanding. In addition,
1,896,352 shares of common stock were issuable upon the exercise or conversion
of stock options and convertible notes or debentures, 1,725,459 of which have
been registered for resale by the holders and are freely tradable upon issuance
and 170,893 of which are subject to registration rights pursuant to which the
holders can cause the Company to register those shares for resale.
Sale in the market of substantial amounts of common stock, or the
perception that sales might occur, could adversely affect the market price of
the common stock. Any sales may make it more difficult for us to sell equity
securities in the future when and at a price that we deem appropriate.
Reliance on Key Personnel
Our future success will depend in part upon the continued service of
our senior management and on the senior management of companies that we acquire
in the future. If any of these people decide not to continue in their employment
with us, or if we are unable to attract and retain other skilled employees, our
business could be adversely affected.
Competition
We believe that the markets for the same-day ground and air delivery
services we provide are highly competitive. Price competition is often intense,
especially in the market for basic delivery services. We compete with a large
number of other air delivery and ground courier service entities. While we
believe that we compete effectively with these other entities, we cannot
guarantee that we will be able to maintain our competitive position in our
principal markets.
Permits and Licensing
Our delivery operations are subject to various state, local and federal
regulations that in many instances require permits and licenses. Our failure to
maintain required permits or licenses or to comply with these laws and
regulations could subject us to substantial fines or could lead to the
revocation of our authority to conduct certain of our operations.
No Future Dividends
We do not anticipate paying cash dividends on our shares of common
stock in the foreseeable future. We intend to retain any future earnings for use
in our business. Our Revolving Credit Facility limits our ability to pay
dividends on our common stock.
Effect of Certain Charter Provisions
Certain provisions of our Certificate of Incorporation and By-Laws, as
currently in effect, as well as Delaware law, could discourage potential
acquisition proposals, delay or prevent a change in control of the Company or
limit the price that certain investors may be willing to pay in the future for
our common stock. Our Certificate of Incorporation permits our Board of
Directors to issue shares of preferred stock without further stockholder action.
The existence of this preferred stock could discourage a third party from
attempting to obtain control of the Company and may also cause the market price
of the common stock to drop. We have no current plans to issue shares of
preferred stock. In addition, Section 203 of the Delaware General Corporation
law restricts certain persons from engaging in business combinations with us.
Our current By-Laws provide for a staggered board of directors, which
means that only one-third of the board will be elected at each annual meeting of
stockholders.
THE COMPANY
Consolidated Delivery & Logistics, Inc. was founded in June 1994 to
create a national, full service, same-day ground and air delivery company. The
Company provides an extensive network of same-day delivery services to a wide
range of commercial, industrial and retail customers. The Company's ground
delivery operations are concentrated on the East Coast, with a strategic
presence in the Midwest and on the West Coast. The Company's air delivery
services are provided throughout the United States and to major cities around
the world.
The Company offers its customers a single source for their same-day
delivery needs. The Company's strategy is to achieve increased operating
efficiencies by consolidating operations, increasing the density of its delivery
routes and improving the productivity of existing personnel, equipment and
facilities. During 1997, the Company curtailed its acquisition activities to
focus on internal growth, strengthen its management structure and improve
financial and operational systems. In connection therewith, and in accordance
with the Company's previously announced plans, the Company disposed of its
contract logistics subsidiary and its fulfillment and direct mail operation. In
1998, the Company began identifying suitable acquisition candidates where the
Company can improve its existing market position or can establish a stronger
market presence. Accordingly, the Company acquired certain assets and
liabilities of Metro Courier Network, Inc. in July 1998, purchased all of the
capital stock of KBD Services, Inc. ("KBD") in August 1998 and acquired certain
assets and liabilities of Eveready Express Corp. in September 1998.
The Company was incorporated under the laws of the State of Delaware in
June 1994. The complete mailing address of the Company's principal executive
office is 380 Allwood Road, Clifton, New Jersey 07012 and its telephone number
is (973) 471-1005.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
common stock offered hereby. All net proceeds from the sale of the common stock
will be paid directly to the Selling Securityholder. The Company will be
relieved of the burden of repaying the Notes (as defined below) to the extent
they are converted.
SELLING SECURITYHOLDER
This Prospectus covers offers from time to time by David L. Chesney
(the "Selling Securityholder") (after Mr. Chesney becomes a holder of our common
stock) of the common stock owned by Mr. Chesney. The Selling Securityholder will
hold shares of common stock issued upon the conversion of (i) the Company's 7%
Subordinated Convertible Note due 2003 (the "7% Note") and (ii) the Company's
Contingent Subordinated Convertible Note due 1999 (the "Contingent Note" and,
with the 7% Note, the "Notes"). The Notes were issued on August 5, 1998 in a
private placement upon the closing of the Company's acquisition of all of the
capital stock of KBD. The 7% Note is convertible at the option of the Selling
Securityholder at any time up to and including July 1, 2003. The Company also
has the right to convert the 7% Note at any time after the average closing sales
price for the common stock over a 30 consecutive trading day period exceeds
$6.00. The 7% Note is convertible into the number of shares of common stock
which results from dividing the principal amount of $1,460,000, plus accrued
interest, by the conversion price. If the 7% Note is converted on or before July
1, 2003, the right to convert may only be exercised with respect to the entire
amount due on the Note less $200,000. The conversion price is $6.00, subject to
adjustment in the event of stock dividends, stock splits, combinations or other
capital reorganizations. The 7% Note accrues interest at the rate of 7% per
annum. Interest is payable quarterly. Accordingly, the 7% Note is convertible
into up to 247,591 shares of our common stock.
The Contingent Note is convertible into the maximum number of shares of
common stock only if an earnings threshold specified in the Stock Purchase
Agreement, dated August 5, 1998, among the Company, a wholly-owned subsidiary of
the Company, KBD and the Selling Securityholder, is achieved by KBD. The
measurement period for determining whether the earnings threshold is achieved
ends on July 31, 1999. If the threshold is achieved, the Contingent Note will be
convertible by the holder or the Company any time after September 16, 1999 up to
and including October 20, 1999, for the full principal amount of the Contingent
Note. The Contingent Note provides that the principal amount, and accordingly,
the number of shares into which the Contingent Note may be converted, shall be
reduced if the earnings of KBD during the measurement period fall within a
specified range. If KBD's earnings do not exceed a minimum threshold, the
principal amount of the Contingent Note will be reduced to zero, and, in such
event, the Contingent Note will not be convertible into any shares of common
stock. Accordingly, the Contingent Note is convertible into a maximum number of
shares of common stock determined by dividing the initial principal amount of
the Contingent Note ($500,000), plus accrued interest, by the $6.00 conversion
price. The Contingent Note accrues interest at the rate of 7% per annum.
Interest is payable upon maturity. Assuming all earnings thresholds are
achieved, the Contingent Note will be convertible into up to 90,625 shares of
our common stock.
Accordingly, a total of 338,216 shares of common stock are being
registered for resale by the Selling Securityholder pursuant to this Prospectus.
The Selling Securityholder does not own any shares of common stock as of the
date of this Prospectus, and if all shares registered hereby are offered and
sold by the Selling Securityholder, the Selling Securityholder will own no
shares of common stock after this offering is completed.
PLAN OF DISTRIBUTION
The distribution of the our common stock by the Selling Securityholder,
or by the Selling Securityholder's successors in interest, may be effected from
time to time in one or more transactions on the Nasdaq National Market, in
special offerings, exchange distributions and/or secondary distributions
pursuant to and in accordance with the applicable rules of the National
Association of Securities Dealers, Inc. ("NASD"), in the over-the-counter
market, in negotiated transactions (including, without limitation, privately
negotiated transactions), through the writing of options on the common stock, or
through the issuance of other securities convertible into shares of the common
stock (whether such options or other securities are listed on an options or
securities exchange or otherwise), or a combination of such methods of
distribution, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
Any or all of the common stock may be sold from time to time to
purchasers directly by the Selling Securityholder. Sales of common stock may
also be made pursuant to Rules 144, 144A or 904 of the Securities Act, provided
that the requirements of such rules, including, without limitation, the holding
period and the manner of sale requirements, are met. Alternatively, the Selling
Securityholder may from time to time offer any or all of the common stock
through underwriters, dealers, brokers or agents, including in transactions in
which any such underwriters, dealers, brokers or agents solicit purchasers, and
in block transactions in which any such underwriters, dealers, brokers, or
agents will attempt to sell such shares of common stock as an agent but may
resell such shares of common stock as a principal pursuant to this Prospectus.
Any underwriters, dealers, brokers or agents participating in the
distribution of the common stock offered hereby may receive compensation in the
form of underwriting discounts, concessions, commissions or fees from the
Selling Securityholder and/or purchasers of common stock for whom they may act
as agents (which compensation may be in excess of customary commissions). In
addition, the Selling Securityholder and any such underwriters, dealers, brokers
or agents that participate in the distribution of common stock may be deemed to
be "underwriters" within the meaning of Section 2(11) of the Securities Act and
any commissions received by them and any profit on the resale of shares of the
common stock may be deemed to be underwriting compensation. Additionally, the
Selling Securityholder may pledge shares of the common stock, and in such event
agents or dealers may acquire the shares of the common stock or interests
therein, and may, from time to time, effect distributions of shares of the
common stock or interests therein in such capacity.
In order to comply with the securities laws of certain states, if
applicable, the common stock will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In certain states, the common stock
may not be sold unless registered or qualified for sale in such state or unless
an exemption from registration or qualification is available and such sale is
made in compliance with such exemption.
LEGAL MATTERS
Certain matters with respect to the validity and legality of
the common stock offered hereby have been passed upon for the Company by
Lowenstein Sandler PC, Roseland, New Jersey.
EXPERTS
The financial statements and schedules incorporated by
reference in this Prospectus and elsewhere in the Registration Statement, to the
extent and for the periods set forth in their report, have been audited by
Arthur Andersen LLP, independent certified public accountants, and are
incorporated herein in reliance upon the authority of said firm as experts in
auditing and accounting in giving said report.
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
The following table lists the expenses which will be incurred
in connection with the issuance and distribution of the Common Stock being
registered.
Expense
--------------
Securities and Exchange Commission
Registration Fee $278
Accounting Fees and Expenses 6,000
Legal Fees and Expenses 6,000
Miscellaneous 722
--------------
Total $13,000
==============
All of the above amounts, other than the SEC filing fee, are
estimates only. All of the above expenses will be paid by the Company.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("GCL")
provides generally that a person sued as a director, officer, employee or agent
of a corporation may be indemnified by the corporation in nonderivative suits
for expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation. In the case of criminal actions and proceedings, such person must
have had no reasonable cause to believe his or her conduct was unlawful.
Indemnification of expenses is authorized in stockholder derivative suits where
such person acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation and so long as he or she
had not been found liable for negligence or misconduct in the performance of his
or her duty to the corporation. Even in this latter instance, the court may
determine that in view of all the circumstances such person is entitled to
indemnification for such expenses as the court deems proper. A person sued as a
director, officer, employee or agent of a corporation who has been successful in
defense of the action must be indemnified by the corporation against expenses.
Article Tenth of the Certificate of Incorporation and Section
10 of the Company's by-laws, as amended ("By-laws"), provide that the Company
shall, to the fullest extent permitted by law, indemnify each person (including
the heirs, executors, administrators and other personal representatives of such
person) against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, actually and reasonably incurred by such person in
connection with any threatened, pending or actual suit, action or proceeding
(whether civil, criminal, administrative or investigative in nature or
otherwise) in which such person may be involved by reason of the fact that he or
she is or was a director or officer of the Company or is serving any other
incorporated or unincorporated enterprise in any of such capacities at the
request of the Company.
Article Tenth of the Certificate of Incorporation also
contains a provision limiting the personal liability of directors to the fullest
extent permitted or authorized by the GCL or other applicable law. Under the
GCL, such provision would not limit liability of a director for (i) breach of
the director's duty of loyalty (i.e., a director's duty to refrain from
self-dealing in relation to the Company), (ii) acts or omissions not in good
faith or involving intentional misconduct or knowing violation of law, (iii)
payment of dividends or repurchases or redemptions of stock other than from
lawfully available funds, or (iv) any transactions from which the director
derives an improper benefit. This provision may have no effect on liability for
violations of the federal securities laws.
Item 16. Exhibits
The following exhibits are filed as part of this Registration
Statement:
4.1* Second Restated Certificate of Incorporation of the Company,
as amended.
4.2** By-laws of the Company, as amended and restated.
4.3*** Form of Certificate evidencing ownership of the Company's
Common Stock.
4.4**** 7% Subordinated Convertible Note due 2003 and 7% Contingent
Subordinated Convertible Note due 1999.
5.1***** Opinion of Lowenstein Sandler PC.
23.1 Consent of Independent Public Accountants.
23.2***** Consent of Lowenstein Sandler PC is included in Exhibit 5.1.
24.1***** Power of Attorney.
- -----------------
* Incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (File No. 333-97008).
** Incorporated by reference to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1998.
*** Incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (File No. 333-97008).
**** Incorporated by reference to Exhibits 10.2 and 10.3 to the Company's
Current Report on Form 8-K filed with the Commission on August 18,
1998.
***** Previously filed.
Item 17. Undertakings
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 facts 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.
(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.
The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
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 Securities and Exchange
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Consolidated Delivery & Logistics, Inc., certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this Amendment No. 1 to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Clifton, State of New Jersey, on November 25, 1998.
CONSOLIDATED DELIVERY & LOGISTICS, INC.
By: /s/ Albert W. Van Ness, Jr.
Albert W. Van Ness, Chairman and CEO
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated below on November 25, 1998.
Signature Capacity
/s/ Albert W. Van Ness, Jr. Chairman of the Board, Chief
-------------------------- Executive Officer and Chief
Albert W. Van Ness, Jr. Financial Officer
* President, Chief Operating Officer
-------------------------- and Director
William T. Brannan
* Director
---------------------------
William Beaury
* Director
----------------------------
Michael Brooks
* Director
----------------------------
Jon F. Hanson
* Director
----------------------------
Labe Leibowitz
* Director
----------------------------
Marilu Marshall
* Director
--------------------------
Kenneth W. Tunnell
* Director
--------------------------
John S. Wehrle
*By: /s/ Albert W. Van Ness, Jr.
Albert W. Van Ness, Attorney-in-Fact
Exhibit 23.1
ARTHUR ANDERSEN LLP
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 February 25, 1998
included in Consolidated Delivery & Logistics, Inc.'s Form 10-K for the year
ended December 31, 1997 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen
ARTHUR ANDERSEN LLP
Roseland, New Jersey
November 25, 1998