SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRANSPORTATION LOGISTICS INT'L, INC.
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(Exact name of Registrant as specified in Charter)
Colorado 84-1191355
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(State of Incorporation) (I.R.S. Employer I.D. Number)
136 Freeway Drive, East Orange, NJ 07018
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(Address of Principal Executive Offices)
2002 STOCK INCENTIVE PLAN
(Full Title of Plan)
MICHAEL MARGOLIES
Transportation Logistics Int'l, Inc.
136 Freeway Drive
East Orange, NJ 07018
(973) 266-7020
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(Name, Address and Telephone Number of Agent for Service)
Copy to:
ROBERT BRANTL, ESQ.
322 Fourth Street
Brooklyn, NY 11215
(718) 768-6045
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price (2) Fee
- -----------------------------------------------------------------------
Common Stock, 4,000,000 shares $.09 $360,000 $33.12
no par value
(1) This Registration Statement also covers an indeterminable number of
additional shares that may be issued as a result of an adjustment in the
shares in the event of a stock split, stock dividend or similar capital
adjustment, as required by the Plan.
(2) The price stated is estimated solely for purposes of calculation of the
registration fee and is the product resulting from multiplying 4,000,000
shares by $.09, the closing price of shares of the Common Stock on the
OTC Bulletin Board on March 21, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Transportation Logistics Int'l, Inc. is incorporating by reference the
following documents previously filed with the Securities and Exchange
Commission:
(1) Transportation Logistics Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2000;
(2) Transportation Logistics' Quarterly Report on Form 10-QSB for the quarter
ended March 31, 2001;
(3) Transportation Logistics' Quarterly Report on Form 10-QSB for the quarter
ended June 30, 2001;
(4) Transportation Logistics' Quarterly Report on Form 10-QSB for the quarter
ended September 30, 2001;
(5) Transportation Logistics' Current Report on Form 8-K dated March 28, 2001;
(6) the description of Transportation Logistics Common Stock contained in its
Registration Statement on Form 10-SB.
Transportation Logistics is also incorporating by reference all documents
hereafter filed by Transportation Logistics pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Robert Brantl, Esq., counsel to Transportation Logistics, has passed upon the
validity of the shares registered pursuant to this Registration Statement.
Mr. Brantl holds no interest in the securities of Transportation Logistics.
Item 6. Indemnification of Directors and Officers.
Section 7-109 of the Colorado Business Corporation Act authorizes a
corporation to provide indemnification to a director or officer of the
corporation against liability and expenses actually and reasonably incurred
by him in connection with a proceeding, if such party conducted himself in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful, except that with respect to any action which results in a judgment
against the person and in favor of the corporation or a judgment on the basis
that the person derived and improper personal benefit, the corporation may not
indemnify unless a court determines that the person is fairly and reasonably
entitled to the indemnification. Section 7-109 further provides that
indemnification shall be provided if the party in question is successful on
the merits.
Article VI of the Bylaws of Transportation Logistics Int'l, Inc. provides that
Transportation Logistics shall indemnify directors and officers to the extent
authorized by the Colorado Business Corporation Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 2002 Stock Incentive Plan
5 Opinion of Robert Brantl, Esq.
23.1 Consent of Rosenberg Rich Baker Berman & Co., C.P.A., P.A.
23.2 Consent of Schuhalter, Coughlin & Suozzo, LLC, independent public
accountants
23.3 Consent of Robert Brantl, Esq. is contained in his opinion, filed
as Exhibit 5.
Item 9. Undertakings.
Transportation Logistics hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-
effective amendment to this Registration Statement 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;
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the annual report pursuant to Section 13(a) or 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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
Transportation Logistics pursuant to the provisions of the Colorado Business
Corporation Act or otherwise, Transportation Logistics has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Transportation Logistics of expenses
incurred or paid by a director, officer or controlling person of
Transportation Logistics 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, Transportation Logistics 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 Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Transportation
Logistics Int'l, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of East Orange and the State of New
Jersey on the 21st day of March, 2002.
TRANSPORTATION LOGISTICS INTL, INC.
By:/s/Michael Margolies
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Michael Margolies
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities
indicated on March 21, 2002.
Name Title
/s/Michael Margolies Chairman (Chief Executive Officer,
- --------------------- Chief Financial Officer)
Michael Margolies
Director
- ---------------------
Jim Thorpe
/s/Stanley Chason Director
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Stanley Chason
INDEX TO EXHIBITS
4.1 2002 Stock Incentive Plan
5 Opinion of Robert Brantl, Esq.
23.1 Consent of Rosenberg Rich Baker Berman & Co., C.P.A., P.A.
23.2 Consent of Schuhalter, Coughlin & Suozzo, LLC, independent public
accountants
23.3 Consent of Robert Brantl, Esq. is contained in his opinion, filed
as Exhibit 5.
* * * * * * * * *
EXHIBIT 4.1
TRANSPORTATION LOGISTICS INT'L, INC.
2002 Stock Incentive Plan
Article 1. Establishment and Purpose
1.1 Establishment of the Plan. Transportation Logistics Int'l, Inc., a
Colorado corporation (the "Company" or "TLI"), hereby establishes an incentive
compensation plan (the "Plan"), as set forth in this document.
1.2 Purpose of the Plan. The purpose of the Plan is to promote the success
and enhance the value of the Company by linking the personal interests of
Participants to those of the Company's shareholders, and by providing
Participants with an incentive for outstanding performance. The Plan is
further intended to attract and retain the services of Participants upon whose
judgment, interest, and special efforts the successful operation of TLI and
its subsidiaries is dependent.
1.3 Effective Date of the Plan. The Plan shall become effective on March 14,
2002.
Article 2. Definitions
Whenever used in the Plan, the following terms shall have the meanings set
forth below and, when the meaning is intended, the initial letter of the word
is capitalized:
(a) "Award" means, individually or collectively, a grant under this Plan of
Nonqualified Stock Options, Incentive Stock Options, Stock, Restricted Stock,
or Performance Shares.
(b) "Award Agreement" means an agreement which may be entered into by each
Participant and the Company, setting forth the terms and provisions applicable
to Awards granted to Participants under this Plan.
(c) "Board" or "Board of Directors" means the TLI Board of Directors.
(d) "Cause" shall mean willful and gross misconduct on the part of an
Eligible Person that is materially and demonstrably detrimental to the
Company or any Subsidiary as determined by the Committee in its sole
discretion.
(e) "Change in Control" shall be deemed to have occurred if (i) any "person"
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than (A) a person who on January 14, 2002 was the beneficial owner of more
than 25% of the outstanding Shares, (B) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or (C) a corporation
owned directly or indirectly by the shareholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing forty percent
(40%) or more of the total voting power represented by the Company's then
outstanding voting securities, or (ii) during any period of two (2)
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new Director whose election by
the Board of Directors or nomination for election by the Company's shareholders
was approved by a vote of at least two-thirds (2/3) of the Directors then
still in office who either were Directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease
for any reason to constitute a majority thereof, or (iii) the shareholders of
the Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least fifty-five percent
(55%) of the total voting power represented by the voting securities of the
Company or such surviving entity outstanding immediately after such merger
or consolidation, or the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
(f) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(g) "Committee" means the committee or committees, as specified in Article 3,
appointed by the Board to administer the Plan with respect to grants of Awards.
(h) "Consultant" means a natural person under contract with the Company to
provide bona fide services to the Company which are not in connection with
the offer or sale of securities in a capital-raising transaction and do not
directly or indirectly promote or maintain a market for the Company's
securities.
(i) "Director" means any individual who is a member of the TLI Board of
Directors.
(j) "Disability" shall mean the Participant's inability to perform the
Participant's normal Employment functions due to any medically determinable
physical or mental disability, which can last or has lasted 12 months or is
expected to result in death.
(k) "Eligible Person" means an Employee, Director or Consultant.
(l) "Employee" means any officer or employee of the Company or of one of the
Company's Subsidiaries. Directors who are not otherwise employed by the
Company shall not be considered Employees under this Plan.
(m) "Employment," with reference to an Employee, means the condition of
being an officer or employee of the Company or one of its Subsidiaries.
"Employment," with reference to a Consultant, means the condition of being a
Consultant. "Employment," with reference to a Director, means the condition
of being a Director. The change in status of an Eligible Person among the
categories of Employee, Director and Consultant shall not be deemed a
termination of Employment.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor Act thereto.
(o) "Exercise Price" means the price at which a Share may be purchased by a
Participant pursuant to an Option, as determined by the Committee.
(p) "Fair Market Value" shall mean (i) at such time as there are closing prices
quoted for the Shares, the closing price of Shares on the relevant date, or
(if there were no sales on such date) the next preceding trading date, all as
reported on the principal market for the Shares, or (ii) at such time as there
is a public market quoted without closing prices, the mean of the closing high
bid and low asked on the relevant date, as reported on the principal market
for the Shares, or (iii) at such time as there is no public market for the
Shares, the value determined from time to time by the Board of Directors.
(q) "Incentive Stock Option" or "ISO" means an option to purchase Shares from
TLI, granted under this Plan, which is designated as an Incentive Stock Option
and is intended to meet the requirements of Section 422 of the Code.
(r) "Insider" shall mean an Eligible Person who is, on the relevant date, an
officer, director, or ten percent (10%) beneficial owner of the Company, as
those terms are defined under Section 16 of the Exchange Act.
(s) "Nonqualified Stock Option" or "NQSO" means the option to purchase Shares
from TLI, granted under this Plan, which is not intended to be an Incentive
Stock Option.
(t) "Option" or "Stock Option" shall mean an Incentive Stock Option or a
Nonqualified Stock Option.
(u) "Participant" means a person who holds an outstanding Award granted under
the Plan.
(v) "Performance Share" shall mean an Award granted to an Eligible Person
pursuant to Article 9 herein.
(w) "Plan" means this 2002 Stock Incentive Plan.
(x) "Restricted Stock" means an Award of Stock granted to an Eligible Person
pursuant to Article 8 herein.
(y) "Restriction Period" means the period during which Shares of Restricted
Stock are subject to restrictions or conditions under Article 8.
(z) "Shares" or "Stock" means the shares of common stock of the Company.
(aa) "Subsidiary" shall mean any corporation in which the Company owns
directly, or indirectly through subsidiaries, more than fifty percent (50%)
of the total combined voting power of all classes of Stock, or any other
entity (including, but not limited to, partnerships and joint ventures) in
which the Company owns more than fifty percent (50%) of the combined equity
thereof.
Article 3. Administration
3.1 The Committee. The Plan and all Awards hereunder shall be administered
by one or more Committees of the Board as may be appointed by the Board for
this purpose. The Board may appoint a Committee specifically responsible for
Awards to Insiders (the "Disinterested Committee") where each Director on such
Disinterested Committee is a "Non-Employee Director" (or any successor
designation for determining who may administer plans, transactions or awards
exempt under Section 16(b) of the Exchange Act), as that term is used in Rule
16b-3 under the Exchange Act, as that rule may be modified from time to time.
If no specific Committee is appointed by the Board, then the Board in its
entirety shall be the Committee. Any Committee may be replaced by the Board
at any time.
3.2 Authority of the Committee. The Committee shall have full power, except
as limited by law and subject to the provisions herein, to select the
recipients of Awards; to determine the size and types of Awards; to determine
the terms and conditions of such Awards in a manner consistent with the Plan;
to construe and interpret the Plan and any agreement or instrument entered
into under the Plan; to establish, amend, or waive rules and regulations for
the Plan's administration; and (subject to the provisions of Article 10
herein) to amend the terms and conditions of any outstanding Award to the
extent such terms and conditions are within the discretion of the Committee
as provided in the Plan. Further, the Committee shall make all other
determinations which may be necessary or advisable for the administration of
the Plan.
The Committee shall determine which Awards are made pursuant to Rule 701 under
the Securities Act of 1933, as amended.
No Award may be made under the Plan after December 31, 2011.
All determinations and decisions made by the Committee pursuant to the
provisions of the Plan and all related orders or resolutions of the Board
shall be final, conclusive, and binding on all persons, including the Company,
its stockholders, Eligible Persons, Participants, and their estates and
beneficiaries.
Subject to the terms of this Plan, the Committee is authorized, and shall not
be limited in its discretion, to use any of the Performance Criteria specified
herein in its determination of Awards under this Plan.
Article 4. Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in Section 4.3 herein,
the number of Shares available for grant under the Plan shall not exceed four
million (4,000,000) Shares. The Shares granted under this Plan may be either
authorized but unissued or reacquired Shares.
Without limiting the discretion of the Committee under this section, unless
otherwise provided by the Committee, the following rules will apply for
purposes of the determination of the number of Shares available for grant
under the Plan or compliance with the foregoing limits:
(a) The grant of a Stock Option or a Restricted Stock Award shall reduce the
Shares available for grant under the Plan by the number of Shares subject to
such Award. However, to the extent the Participant uses previously owned
Shares to pay the Exercise Price or any taxes, or Shares are withheld to pay
taxes, these Shares shall be available for regrant under the Plan.
(b) With respect to Performance Shares, the number of Performance Shares
granted under the Plan shall be deducted from the number of Shares available
for grant under the Plan. The number of Performance Shares which cannot be,
or are not, converted into Shares and distributed to the Participant (after
any applicable tax withholding) following the end of the Performance Period
shall increase the number of Shares available for regrant under the Plan by
an equal amount.
4.2 Lapsed Awards. If any Award granted under this Plan is canceled,
terminates, expires, or lapses for any reason, Shares subject to such Award
shall be again available for the grant of an Award under the Plan.
4.3 Adjustments in Authorized Plan Shares. In the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation,
Stock dividend, split-up, Share combination, or other change in the corporate
structure of the Company affecting the Shares, an adjustment shall be made in
the number and class of Shares which may be delivered under the Plan, and in
the number and class of and/or price of Shares subject to outstanding Awards
granted under the Plan, and/or the number of outstanding Options, Shares of
Restricted Stock, and Performance Shares constituting outstanding Awards, as
may be determined to be appropriate and equitable by the Committee, in its
sole discretion, to prevent dilution or enlargement of rights.
Article 5. Eligibility and Participation
5.1 Eligibility. All Eligible Persons are eligible to participate in this
Plan.
5.2 Actual Participation. Subject to the provisions of the Plan, the
Committee may, from time to time, select from all Eligible Persons, those to
whom Awards shall be granted and shall determine the nature and amount of
each Award. No Eligible Person is entitled to receive an Award unless
selected by the Committee.
Article 6. Stock Options
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to Eligible Persons at any time and from time to time,
and under such terms and conditions, as shall be determined by the Committee.
The Committee shall have discretion in determining the number of Shares subject
to Options granted to each Eligible Person. The Committee may grant ISOs,
NQSOs, or a combination thereof. ISOs, however, may be granted only to
Employees and only if this Plan is approved by the shareholders of the Company
within one year after it is adopted by the Board of Directors.
6.2 Form of Issuance. Each Option grant may be issued in the form of an
Award Agreement and/or may be recorded on the books and records of the Company
for the account of the Participant. If an Option is not issued in the form of
an Award Agreement, then the Option shall be deemed granted as determined by
the Committee. The terms and conditions of an Option shall be set forth in
the Award Agreement, in the notice of the issuance of the grant, or in such
other documents as the Committee shall determine. Such terms and conditions
shall include the Exercise Price, the duration of the Option, the number of
Shares to which an Option pertains (unless otherwise provided by the Committee,
each Option may be exercised to purchase one Share), and such other provisions
as the Committee shall determine, including, but not limited to whether the
Option is intended to be an ISO or a NQSO.
6.3 Exercise Price.
(a) Unless a greater Exercise Price is determined by the Committee, the
Exercise Price for each ISO awarded under this Plan shall be equal to one
hundred percent (100%) of the Fair Market Value of a Share on the date the
Option is granted. If, however, the Eligible Person owns stock possessing
more than ten percent (10%) of the total combined voting power of all classes
of stock of the Company or of its parent or subsidiary corporations, then the
Exercise Price of an ISO shall be not less than one hundred ten percent (110%)
of the Fair Market Value of a Share on the date the Option is granted.
(b) The Exercise Price of a NQSO shall be determined by the Committee in its
sole discretion.
6.4 Duration of Options. Each Option shall expire at such time as the
Committee shall determine at the time of grant (which duration may be extended
by the Committee); provided, however, that no Option shall be exercisable later
than the tenth (10th) anniversary date of its grant. If, however, the Eligible
Person owns stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of its parent or
subsidiary corporations, then no Option shall be exercisable later than the
fifth (5th) anniversary date of its grant.
6.5 Vesting of Options. Options shall vest at such times and under such
terms and conditions as determined by the Committee; provided, however,
unless a different vesting period is provided by the Committee at or before
the grant of an Option, the Options will vest on the first anniversary of
the grant.
6.6 Exercise of Options. Options granted under the Plan shall be exercisable
at such times and be subject to such restrictions and conditions as the
Committee shall in each instance approve, which need not be the same for each
grant or for each Participant.
Options shall be exercised by delivery of a written notice (including e-mail
and telecopies) to the Secretary of the Company (or, if so provided by the
Company, to its designated agent), which notice shall be irrevocable, setting
forth the exact number of Shares with respect to which the Option is being
exercised and including with such notice payment of the Exercise Price. When
Options have been transferred, the Company or its designated agent may require
appropriate documentation that the person or persons exercising the Option,
if other than the Participant, has the right to exercise the Option. No
Option may be exercised with respect to a fraction of a Share.
6.7 Payment. The Exercise Price shall be paid in full at the time of
exercise. No Shares shall be issued or transferred until full payment has
been received therefor.
Payment may be made:
(a) in cash, or
(b) unless otherwise provided by the Committee at any time, and subject to
such additional terms and conditions and/or modifications as the Committee
or the Company may impose from time to time, and further subject to
suspension or termination of this provision by the Committee or Company at
any time, by:
(i) delivery of Shares of Stock owned by the Participant in partial (if
in partial payment, then together with cash) or full payment (if a
fractional Share remains after payment of the Exercise Price in full by
previously owned Shares, then the fractional Share shall be withheld for
taxes); provided, however, as a condition to paying any part of the
Exercise Price in Stock, at the time of exercise of the Option, the
Participant must establish to the satisfaction of the Company that the
Stock tendered to the Company has been held by the Participant for a
minimum of six (6) months preceding the tender; or
(ii) if the Company has designated a stockbroker to act as the Company's
agent to process Option exercises, issuance of an exercise notice together
with instructions to such stockbroker irrevocably instructing the
stockbroker: (A) to immediately sell a sufficient portion of the Shares
to pay the Exercise Price of the Options being exercised and the required
tax withholding, and (B) to deliver on the settlement date the portion of
the proceeds of the sale equal to the Exercise Price and tax withholding
to the Company. In the event the stockbroker sells any Shares on behalf
of a Participant, the stockbroker shall be acting solely as the agent of
the Participant, and the Company disclaims any responsibility for the
actions of the stockbroker in making any such sales. No Stock shall be
issued until the settlement date and until the proceeds (equal to the
Option Price and tax withholding) are paid to the Company.
If payment is made by the delivery of Shares of Stock, the value of the
Shares delivered shall be equal to the Fair Market Value of the Shares on
the day preceding the date of exercise of the Option.
6.8 Termination of Employment. Unless otherwise provided by the Committee,
the following limitations on exercise of Options shall apply upon termination
of Employment:
(a) Termination by Death or Disability. In the event the Employment of a
Participant shall terminate by reason of death or Disability, all outstanding
Options granted to that Participant shall immediately vest as of the date of
termination of Employment and may be exercised, if at all, no more than three
(3) years from the date of the termination of Employment, unless the Options,
by their terms, expire earlier.
(b) Termination for Cause. If the Employment of a Participant shall be
terminated by the Company for Cause, all outstanding Options held by the
Participant shall immediately be forfeited to the Company and no additional
exercise period shall be allowed, regardless of the vested status of the
Options.
(c) Retirement or Other Termination of Employment. If the Employment of a
Participant shall terminate for any reason other than the reasons set forth
in (a) or (b) above, all outstanding Options which are vested as of the
effective date of termination of Employment may be exercised, if at all, no
more than thirty (30) days from the date of termination of Employment, unless
the Options, by their terms, expire earlier. In the event of the death of the
Participant after termination of Employment, this paragraph (c) shall still
apply and not paragraph (a), above.
(d) Options not Vested at Termination. Except as provided in paragraph (a)
above, all Options held by the Participant which are not vested on or before
the effective date of termination of Employment shall immediately be forfeited
to the Company (and shall once again become available for grant under the Plan).
(e) Notwithstanding the foregoing, the Committee may, in its sole discretion,
establish different terms and conditions pertaining to the effect of
termination of Employment, but no such modification shall shorten the terms
of Options issued prior to such modification.
6.9 Restrictions on Exercise and Transfer of Options. Unless otherwise
provided by the Committee:
(a) During the Participant's lifetime, the Participant's Options shall be
exercisable only by the Participant or by the Participant's guardian or
legal representative. After the death of the Participant, an Option shall
only be exercised by the holder thereof (including, but not limited to, an
executor or administrator of a decedent's estate) or his guardian or legal
representative.
(b) No Option shall be transferable except: (i) in the case of the
Participant, only upon the Participant's death; and (ii) in the case of any
holder after the Participant's death, only by will or by the laws of descent
and distribution.
6.10 Competition. Notwithstanding anything in this Article 6 to the contrary,
in the event the Committee determines, in its sole discretion, that a
Participant is engaging in activity competitive with the Company, any
Subsidiary, or any business in which any of the foregoing have a substantial
interest (the "TLI Businesses"), the Committee may cancel any Option granted
to such Participant, whether or not vested, in whole or in part. Such
cancellation shall be effective as of the date specified by the Committee.
Competitive activity shall mean any business or activity if a substantially
similar business activity is being carried on by a TLI Business, including,
but not limited to, representing or providing consulting services to any
person or entity that is engaged in competition with a TLI Business or that
takes a position adverse to a TLI Business. However, competitive activity
shall not include, among other things, owning a nonsubstantial interest as a
shareholder in a competing business.
Article 7. Stock Grant
7.1 Grant of Stock. Subject to the terms and provisions of the Plan, the
Board of Directors, at any time and from time to time, may grant Shares of
Stock to Eligible Persons in such amounts and upon such terms and conditions
as the Board of Directors shall determine.
Article 8. Restricted Stock
8.1 Grant of Restricted Stock. Subject to the terms and provisions of the
Plan, the Committee, at any time and from time to time, may grant Shares of
Restricted Stock to Eligible Persons in such amounts and upon such terms and
conditions as the Committee shall determine. In addition to any other terms
and conditions imposed by the Committee, vesting of Restricted Stock may be
conditioned upon the attainment of Performance Goals based on Performance
Criteria in the same manner as provided in Section 9.3, herein with respect
to Performance Shares.
8.2 Restricted Stock Agreement. The Committee may require, as a condition
to an Award, that a recipient of a Restricted Stock Award enter into a
Restricted Stock Award Agreement, setting forth the terms and conditions of
the Award. In lieu of a Restricted Stock Award Agreement, the Committee may
provide the terms and conditions of an Award in a notice to the Participant
of the Award, on the Stock certificate representing the Restricted Stock, in
the resolution approving the Award, or in such other manner as it deems
appropriate.
8.3 Transferability. Except as otherwise provided in this Article 8, the
Shares of Restricted Stock granted herein may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated until the end of
the applicable Restriction Period established by the Committee, if any.
8.4 Other Restrictions. The Committee may impose such other conditions
and/or restrictions on any Shares of Restricted Stock granted pursuant to the
Plan as it may deem advisable including, without limitation, a requirement
that Participants pay a stipulated purchase price for each Share of Restricted
Stock and/or restrictions under applicable Federal or state securities laws;
and may legend the certificates representing Restricted Stock to give
appropriate notice of such restrictions.
The Company shall also have the right to retain the certificates representing
Shares of Restricted Stock in the Company's possession until such time as all
conditions and/or restrictions applicable to such Shares have been satisfied.
8.5 Removal of Restrictions. Except as otherwise provided in this Article 8,
Shares of Restricted Stock covered by each Restricted Stock grant made under
the Plan shall become freely transferable by the Participant after the last
day of the Restriction Period and completion of all conditions to vesting, if
any. However, unless otherwise provided by the Committee, the Committee, in
its sole discretion, shall have the right to immediately waive all or part of
the restrictions and conditions with regard to all or part of the Shares held
by any Participant at any time.
8.6 Voting Rights, Dividends and Other Distributions. During the Restriction
Period, Participants holding Shares of Restricted Stock granted hereunder may
exercise full voting rights and shall receive all regular cash dividends paid
with respect to such Shares. Except as provided in the following sentence,
in the sole discretion of the Committee, other cash dividends and other
distributions paid to Participants with respect to Shares of Restricted Stock
may be subject to the same restrictions and conditions as the Shares of
Restricted Stock with respect to which they were paid. If any such dividends
or distributions are paid in Shares, the Shares shall be subject to the same
restrictions and conditions as the Shares of Restricted Stock with respect to
which they were paid.
8.7 Termination of Employment Due to Death or Disability. In the event the
Employment of a Participant shall terminate by reason of death or Disability,
unless otherwise provided by the Committee prior to or at the time of the
Award, all Restriction Periods and all restrictions imposed on outstanding
Shares of Restricted Stock held by the Participant shall immediately lapse
and the Restricted Stock shall immediately become fully vested as of the date
of termination of Employment.
8.8 Termination of Employment for Other Reasons. If the Employment of a
Participant shall terminate for any reason other than those specifically set
forth in Section 8.7 herein, all Shares of Restricted Stock held by the
Participant which are not vested as of the effective date of termination of
Employment immediately shall be forfeited and returned to the Company.
Article 9. Performance Shares
9.1 Grants of Performance Shares. A Performance Share is equivalent in
value to a Share of Stock. Subject to the terms of the Plan, Performance
Shares may be granted to Eligible Persons at any time and from time to
time, as determined by the Committee. The Committee shall have complete
discretion in determining the number of Performance Shares awarded to each
Participant.
9.2 Performance Period. The Performance Period for Performance Shares is
the period over which the Performance Goals are measured. The Performance
Period is set by the Committee for each Award; however, in no event shall an
Award have a Performance Period of less than six months.
9.3 Performance Goals. For each Award of Performance Shares, the Committee
shall establish performance objectives ("Performance Goals") for the Company,
its Subsidiaries, and/or divisions of any of foregoing, based on the Performance
Criteria and other factors set forth below. Performance Goals shall include
payout tables, formulas or other standards to be used in determining the
extent to which the Performance Goals are met, and, if met, the number of
Performance Shares distributed to Participants in accordance with Section
9.5. All Performance Shares which may not be converted under the Performance
Goals or which are reduced by the Committee under Section 9.5 or which may not
be converted for any other reason after the end of the Performance Period
shall be canceled at the time they would otherwise be distributable. When
the Committee desires an Award to qualify under Section 162(m) of the Code,
as amended, the Committee shall establish the Performance Goals for the
respective Performance Shares prior to or within 90 days of the beginning of
the service relating to such Performance Goal, and not later than after 25%
of such period of service has elapsed. For all other Awards, the Performance
Goals must be established before the end of the respective Performance Period.
(a) The Performance Criteria which the Committee is authorized to use, in its
sole discretion, are any of the following criteria or any combination thereof:
(1) Financial performance of the Company (on a consolidated basis), of
one or more of its Subsidiaries, and/or a division of any of the
foregoing. Such financial performance may be based on net income and/or
Value Added (after-tax cash operating profit less depreciation and less
a capital charge).
(2) Service performance of the Company (on a consolidated basis), of one or
more of its Subsidiaries, and/or of a division of any of the foregoing.
Such service performance may be based upon measured customer perceptions
of service quality.
(3) The Company's Stock price; return on shareholders' equity; total
shareholder return (Stock price appreciation plus dividends, assuming
the reinvestment of dividends); and/or earnings per share.
(4) With respect to the Company (on a consolidated basis), to one or
more of its Subsidiaries, and/or to a division of any of the foregoing:
sales, costs, market share of a product or service, return on net assets,
return on assets, return on capital, profit margin, and/or operating
revenues, expenses or earnings.
(5) Completion of a marketing or development project as defined in the
Award Agreement.
(b) Except to the extent otherwise provided by the Committee in full or in
part, if any of the following events occur during a Performance Period and
would directly affect the determination of whether or the extent to which
Performance Goals are met, they shall be disregarded in any such computation:
changes in accounting principles; extraordinary items; changes in tax laws
affecting net income and/or Value Added; natural disasters, including floods,
hurricanes, and earthquakes; and intentionally inflicted damage to property
which directly or indirectly damages the property of the Company or its
Subsidiaries. No such adjustment shall be made to the extent such adjustment
would cause the Performance Shares to fail to satisfy the performance-based
exemption of Section 162(m) of the Code.
9.4 Dividend Equivalents on Performance Shares. Unless reduced or eliminated
by the Committee, a cash payment in an amount equal to the dividend payable
on one Share will be made to each Participant for each Performance Share
which on the record date for the dividend had been awarded to the Participant
and not converted, distributed or canceled.
9.5 Form and Timing of Payment of Performance Shares. As soon as practicable
after the applicable Performance Period has ended and all other conditions
(other than Committee actions) to conversion and distribution of a Performance
Share Award have been satisfied (or, if applicable, at such other time
determined by the Committee at or before the establishment of the Performance
Goals for such Performance Period), the Committee shall determine whether and
the extent to which the Performance Goals were met for the applicable
Performance Shares. If Performance Goals have been met, then the number of
Performance Shares to be converted into Stock and distributed to the
Participants shall be determined in accordance with the Performance Goals for
such Awards, subject to any limits imposed by the Committee. Conversion of
Performance Shares shall occur as soon as reasonably administratively possible
following the determination of the number of Shares to which the Participant
is entitled. At any time prior to the distribution of the Performance Shares,
unless otherwise provided by the Committee, the Committee shall have the
authority to reduce or eliminate the number of Performance Shares to be
converted.
9.6 Termination of Employment Due to Death or Disability. Unless otherwise
provided by the Committee prior to or at the time of an Award, if the
Employment of a Participant shall terminate by reason of death or Disability,
the Participant shall receive a distribution of all outstanding Performance
Shares calculated as if all unfinished Performance Periods had ended with
100% of the Performance Goals achieved, payable in the year following the
date of termination of Employment.
9.7 Termination of Employment for Other Reasons. If the Employment of a
Participant shall terminate for other than a reason set forth in Section 9.6
(and other than for Cause), the number of Performance Shares to be converted
and distributed shall be converted and distributed based upon the achievement
of the Performance Goals and in accordance with all other terms of the Award
and the Plan; however, the Participant may receive no more than a prorated
payout of all Performance Shares, based on the portions of the respective
Performance Periods that have been completed.
9.8 Termination of Employment for Cause. In the event that a Participant's
Employment shall be terminated by the Company for Cause, all Performance
Shares shall be forfeited by the Participant to the Company.
9.9 Nontransferability. Performance Shares may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other than by will
or laws of intestacy.
Article 10. Employee Matters
10.1 Employment Not Guaranteed. Nothing in the Plan shall interfere with or
limit in any way the right of the Company or any Subsidiary to terminate any
Participant's Employment at any time, nor confer upon any Participant any
right to continue in the employ of the Company or one of its Subsidiaries.
10.2 Participation. No Eligible Person shall have the right to be selected
to receive an Award under this Plan, or, having been so selected, to be
selected to receive a future Award.
10.3 Claims and Appeals. Any claim under the Plan by a Participant or
anyone claiming through a Participant shall be presented to the Committee.
Any person whose claim under the Plan has been denied may, within sixty (60)
days after receipt of notice of denial, submit to the Committee a written
request for review of the decision denying the claim. The Committee shall
determine conclusively for all parties all questions arising in the
administration of the Plan.
Article 11. Amendment, Modification, and Termination
11.1 Amendment, Modification, and Termination. The Board of Directors alone
shall have the right to alter, amend or revoke the Plan or any part thereof
at any time and from time to time, provided, however, that the Board of
Directors may not, without the approval of the holders of a majority of the
voting Shares, make any alteration or amendment to the Plan which changes the
aggregate number of shares of Common Stock which may be issued under the Plan,
extend the term of the Plan, or change the employees or class of employees
eligible to receive Awards thereunder. The Board may at any time suspend or
terminate the Plan in whole or in part.
11.2 Awards Previously Granted. No termination, amendment, or modification
of the Plan shall adversely affect in any material way any Award previously
granted under the Plan, without the written consent of the Participant holding
such Award.
Article 12. Change in Control
Upon the occurrence of a Change in Control:
(a) Any and all Options granted hereunder immediately shall become vested and
exercisable;
(b) Any Restriction Periods and all restrictions imposed on Restricted Shares
shall lapse and they shall immediately become fully vested;
(c) The 100% Performance Goal for all Performance Shares relating to
incomplete Performance Periods shall be deemed to have been fully achieved
and shall be converted and distributed in accordance with all other terms of
the Award and this Plan; provided, however, notwithstanding anything to the
contrary in this Plan, no outstanding Performance Share may be reduced.
Article 13. Withholding
13.1 Tax Withholding. The Company shall deduct or withhold an amount
sufficient to satisfy Federal, state, and local taxes (including the
Participant's employment tax obligations) required by law to be withheld with
respect to any taxable event arising or as a result of this Plan ("Withholding
Taxes").
13.2 Share Withholding. With respect to withholding required upon the
exercise of Options, upon the lapse of restrictions on Restricted Stock, upon
the distribution of Performance Shares in the form of Stock, or upon any other
taxable event hereunder involving the transfer of Stock to a Participant, the
Company shall withhold Stock having a Fair Market Value on the date the tax
is to be determined in an amount equal to the Withholding Taxes on such Stock.
Any fractional Share remaining after the withholding shall be withheld as
additional Federal withholding.
Unless otherwise determined by the Committee, when the method of payment for
the Exercise Price is from the sale by a stockbroker, pursuant to Section
6.7(b)(ii), herein, of the Stock acquired through the Option exercise, then
the tax withholding shall be satisfied out of the proceeds. For administrative
purposes in determining the amount of taxes due, the sale price of such Stock
shall be deemed to be the Fair Market Value of the Stock.
Prior to the end of any Performance Period a Participant may elect to have a
greater amount of Stock withheld from the distribution of Performance Shares
to pay withholding taxes; provided, however, the Committee may prohibit or
limit any individual election or all such elections at any time.
13.3 Payment In Lieu of Share Withholding. In any situation in which the
Company would be required to withhold Stock pursuant to Sec. 13.2 above, the
Participant may, in lieu of all or part of such withholding, remit to the
Company an amount in cash sufficient to satisfy the federal, state and local
withholding tax requirements or may direct the Company to withhold from other
amounts payable to the Participant, including salary.
Article 14. Successors
All obligations of the Company under the Plan, with respect to Awards granted
hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the
business and/or assets of the Company.
Article 15. Legal Construction
15.1 Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
15.2 Requirements of Law. The granting of Awards and the issuance of Shares
under the Plan shall be subject to all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or national securities
exchanges as may be required.
15.3 Securities Law Compliance. With respect to Insiders, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the Exchange Act. To the extent any provision
of the plan or action by the Committee fails to comply with a condition of
Rule 16b-3 or its successors, it shall not apply to the Insiders or
transactions thereby.
15.4 Governing Law. To the extent not preempted by Federal law, the Plan,
and all agreements hereunder, shall be construed in accordance with and
governed by the laws of the State of Colorado.
* * * * * * * * *
EXHIBIT 5
ROBERT BRANTL, ESQ.
322 Fourth Street
Brooklyn, NY 11215
718-768-6045
March 21, 2002
Transportation Logistics Int'l, Inc.
136 Freeway Drive
East Orange, NJ 07018
Gentlemen:
With reference to the Registration Statement on Form S-8 which Transportation
Logistics Int'l, Inc. proposes to file with the Securities and Exchange
Commission registering 4,000,000 common shares which may be offered and sold
by Transportation Logistics Int'l, Inc. under the 2002 Stock Incentive Plan
(the "Shares"), I am of the opinion that all proper corporate proceedings
have been taken so that the Shares, upon sale and payment therefor in
accordance with the Plan, will be legally issued, fully paid, and nonassessable.
I hereby consent to the filing of this opinion with the Securities and Exchange
Commission in connection with the Registration Statement referred to above.
Yours,
/s/ Robert Brantl
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Robert Brantl
* * * * * * * * *
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use in this Registration Statement on Form S-8 of our
report dated April 10, 2001 with respect to the financial statements of
Transportation Logistics Int'l, Inc. and Subsidiaries for the year ended
December 31, 2000.
/s/Rosenberg Rich Baker Berman & Co.
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Rosenberg Rich Baker Berman & Co.
Certified Public Accountants
Bridgewater, New Jersey
March 18, 2002
* * * * * * * * *
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITOR
We hereby consent to the use in this Registration Statement on Form S-8 of
Transportation Logistics Int'l, Inc., a Colorado corporation, of our report
dated August 6, 2000 on the financial statements of Transportation Logistics
Int'l, Inc., a New York corporation, for the periods ending December 31,
1999.
/s/Schuhalter, Coughlin & Suozzo, LLC
- -------------------------------------
Schuhalter, Coughlin & Suozzo, LLC
Raritan, New Jersey
March 21, 2002