"Exhibit 4.5"
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF
SERIES A CONVERTIBLE REDEEMABLE PREFERRED STOCK
OF
CD&L, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
The undersigned, Mark Carlesimo, Vice President of CD&L, INC., a
corporation organized and existing under the laws of the State of Delaware (the
"Company"), does hereby certify that, pursuant to authority vested in the Board
of Directors of the Company (the "Board") by Article Fourth of the Certificate
of Incorporation of the Company (the "Certificate of Incorporation"), the
following resolution was adopted as of April 13, 2004 by the Board of Directors
of the Company pursuant to Section 151 of the Delaware General Corporation Law:
"RESOLVED that, pursuant to authority vested in the Board of Directors
of the Company by Article Fourth of the Certificate of Incorporation of the
Company, out of the total authorized number of 2,000,000 shares of Company
preferred stock, par value $.001 per share ("Preferred Stock"), there shall be
designated a series of 393,701 shares which shall be issued in and constitute a
single series to be known as "Series A Convertible Redeemable Preferred Stock"
(hereinafter called the "Series A Preferred Stock"). The shares of Series A
Preferred Stock shall have the voting powers, designations, preferences and
other rights, and the qualifications, limitations and restrictions thereof (in
addition to the voting powers, designations, preferences and other rights, and
the qualifications, limitations and restrictions set forth in the Certificate of
Incorporation which are applicable to Preferred Stock generally) set forth
below:
Section 1. DESIGNATION AND AMOUNT; RANKING.
(a) This series of Preferred Stock shall be designated as the "Series A
Convertible Redeemable Preferred Stock" of the Company, and the authorized
number of shares constituting such series shall be 393,701, par value $.001 per
share. The price and the liquidation preference of shares of Series A Preferred
Stock shall be the Liquidation Preference.
(b) The shares of Series A Preferred Stock shall rank senior to shares
of Junior Securities of the Company as to the payment of dividends and the
distribution of assets upon the liquidation, dissolution or winding up of the
Company.
Section 2. DIVIDENDS.
Dividends on the Series A Preferred Stock shall be declared and paid
from time to time as determined by the Company's Board out of funds legally
available therefor. The Company shall not declare, pay or set aside any
dividends or distributions (other than dividends payable solely in shares of
Common Stock) ("Dividends" or "Dividend", as applicable) on shares of Junior
Securities, unless the holders of Series A Preferred Stock first receive, or
simultaneously receive, a Dividend on each outstanding share of Series A
Preferred Stock equal to the product of (i) the per share Dividend to be
declared, paid or set aside for the Junior Securities, multiplied by (ii) the
number of shares of Common Stock into which such share of Series A Preferred
Stock is convertible immediately prior to the record date set by the Company
with respect to such Dividends. All Dividends paid with respect to shares of
Series A Preferred Stock shall be paid pro rata to the holders entitled thereto.
Section 3. CHANGE IN CONTROL.
(a) In the event of a Change in Control of the Company, the holders of
shares of the Series A Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Company available for distribution to its
stockholders (after payment or provision for payment of all debts and
liabilities of the Company), before any payment shall be made to the holders of
Junior Securities by reason of their ownership thereof, for each share of Series
A Preferred Stock, an amount equal to the Issue Price plus any and all accrued
but unpaid dividends upon the Series A Preferred Stock, if any (subject to
equitable adjustment in the event of any stock dividend, stock split,
combination, reorganization, recapitalization, reclassification, or other
similar event affecting the shares of Series A Preferred Stock) pursuant to
Section 4(b)) (the "Liquidation Preference").
(b) If, upon such Change in Control of the Company, the assets to be
distributed are insufficient to permit the payment in full to the holders of the
Series A Preferred Stock of all amounts distributable to them under Section 3(a)
hereof, then the entire assets of the Company available for such distribution
shall be distributed ratably among the holders of the Series A Preferred Stock
in proportion to the full preferential amount each such holder is otherwise
entitled to receive under Section 3(a).
(c) After payment has been made in full pursuant to Section 3(a) above,
the remaining assets available for distribution (after payment or provision for
payment of all debts and liabilities of the Company) shall be distributed among
the holders of the Junior Securities according to their respective rights and
preferences.
(d) Distributions Other than Cash. Whenever the distribution provided
for in this Section 3 shall be payable in property other than cash, the value of
such distribution shall be the fair market value as follows:
(i) if such property is traded on a securities exchange or through
the Nasdaq National Market and if no restrictions exist with
respect to the transferability thereof, the value shall be
deemed to be the average of the closing prices of the
securities on such exchange or system over the thirty (30)
calendar day period ending three (3) calendar days prior to,
but not including, the effective date of the Change in
Control;
(ii) if such property is actively (as determined in good faith by
the Board) traded over-the-counter but not on the Nasdaq
National Market and if no restrictions exist with respect to
the transferability thereof, the value shall be deemed to be
the average of the closing bid or sale prices (whichever is
applicable) over the thirty (30) calendar day period ending
three (3) calendar days prior to, but not including, the
closing; and
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(iii) if Subsections 3(e)(i) and 3(e)(ii) do not apply, the value
shall be the fair market value thereof, as determined in good
faith by the Board.
(e) The Company shall give each holder of Series A Preferred Stock
written notice of any Change in Control not later than ten (10) days prior to
any meeting of stockholders to approve such Change in Control or, if no meeting
is to be held, not later than twenty (20) calendar days prior to the date of
such Change in Control.
Section 4. CONVERSION. The holders of Series A Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert; Conversion Price. Each share of Series A
Preferred Stock shall be convertible, without the payment of any additional
consideration by the holder thereof and at the option of the holder thereof, at
any time and from time to time after the date of issuance of such share, at the
office of the Company or any transfer agent for the Series A Preferred Stock,
into such number of fully paid and non-assessable shares of the Common Stock
(excluding fractional shares which shall be rounded to the nearest full share)
as is determined by dividing the Issue Price by the Series A Conversion Price in
effect at the time of conversion. The "Series A Conversion Price" for purposes
of calculating the number of shares of the Common Stock deliverable upon
conversion without the payment of any additional consideration by the holder of
Series A Preferred Stock shall initially be equal to $1.016. Such initial Series
A Conversion Price shall be subject to adjustment, in order to adjust the number
of shares of the Common Stock into which Series A Preferred Stock is
convertible, as hereinafter provided. In the event of a redemption of any shares
of Series A Preferred Stock pursuant to Section 8 hereof, the Conversion Rights
of the shares designated for redemption shall terminate at the close of business
on the first full day preceding the date fixed for redemption, unless the
redemption price is not paid on such redemption date, in which case the
Conversion Rights for such shares shall continue until such price is paid in
full. In the event of a Change in Control of the Company, the Conversion Rights
shall terminate at the close of business on the first full day preceding the
date fixed for the payment of any amounts distributable on a Change in Control
to the holders of Series A Preferred Stock, unless the Liquidation Preference is
not paid upon such date, in which case the Conversion Rights for such shares
shall continue until such Liquidation Preference is paid in full. At the time of
conversion and upon receipt of the stock certificates surrendered for
conversion, the Company shall pay in cash to the holder thereof an amount equal
to all accrued but unpaid dividends upon the Series A Preferred Stock, if any,
to the date of conversion, without interest.
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(b) Mechanics of Conversion. Before any holder of Series A Preferred
Stock shall be entitled to convert the same into shares of the Common Stock,
such holder shall surrender the certificate or certificates therefor, duly
endorsed or with stock powers attached, at the office of the Company or of any
transfer agent for the Series A Preferred Stock, and shall give written notice
to the Company at such office that such holder elects to convert the same and
shall state therein the name of such holder or the name or names of the nominees
of such holder in which such holder wishes the certificate or certificates for
whole shares of the Common Stock to be issued and the date of such conversion
(the "Conversion Date") which shall be a Business Day. The Company shall, within
ten (10) Business Days, issue and deliver at such office to such holder of
Series A Preferred Stock, or to such holder's nominee or nominees, a certificate
or certificates for the number of whole shares of the Common Stock to which such
holder shall be entitled. Such conversion shall be deemed to have been made
immediately prior to the close of business on the Conversion Date, and the
Person or Persons entitled to receive the whole shares of Common Stock issuable
upon conversion shall be treated for all purposes as the record holder or
holders of such whole number of shares of Common Stock on such date. In case the
number of shares of Series A Preferred Stock represented by the certificate or
certificates surrendered pursuant to subparagraph 4(b) exceeds the number of
shares converted, the Company shall upon such conversion, execute and deliver to
the holder thereof at the expense of the Company, a new certificate for the
number of shares of Series A Preferred Stock represented by the certificate or
certificates surrendered which are not to be converted. Such conversion shall be
deemed to have been made immediately prior to the close of business on the
Conversion Date and the Person or Persons entitled to receive the shares of
Common Stock issuable upon conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock on such date. The
Company shall pay any and all issue and transfer taxes that may be payable in
respect of the issuance and delivery of whole shares of the Common Stock upon
conversion of the Series A Preferred Stock.
(c) Termination of Rights upon Conversion. All shares of Series A
Preferred Stock converted as herein provided shall no longer be deemed to be
outstanding and all rights with respect to such shares, including the rights, if
any, to receive notices and to vote and to further accrue dividends shall
immediately cease and terminate upon such conversion (except only the right of
the holders thereof to receive shares of the Common Stock in exchange therefor
pursuant to the terms hereof).
(d) Adjustments to Conversion Price for Dilutive Issuances. The Series
A Conversion Price shall be subject to adjustment as follows:
(i) In case the Company shall at any time subdivide (by any stock
split, stock dividend or otherwise) its outstanding shares of
Common Stock into a greater number of shares, the Series A
Conversion Price in effect immediately prior to such
subdivision shall be proportionately reduced, and, conversely,
in case the outstanding shares of Common Stock shall be
combined into a smaller number of shares, the Series A
Conversion Price in effect immediately prior to such
combination shall be proportionately increased. In the case of
any such subdivision, no further adjustment shall be made
pursuant to subparagraph (ii) below by reason thereof.
(ii) In case the Company distributes to holders of Junior
Securities shares of capital stock, then lawful and adequate
provision shall be made so that each holder of a share of
Series A Preferred Stock shall thereafter, upon conversion,
have the right to receive an equal amount of capital stock as
if the Series A Preferred Stock had been converted at that
time.
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Section 5. VOTING RIGHTS OF SERIES A PREFERRED STOCK.
(a) Except as otherwise required by law, as set forth in any agreement
between the Company and the holders of the Series A Preferred Stock, or as
provided in this Certificate of Designations, each holder of shares of Series A
Preferred Stock shall have no voting rights. So long as at least 196,851 shares
of Series A Preferred Stock (a majority of the initially issued shares of Series
A Preferred Stock) are outstanding, except where the vote or written consent of
the holders of a greater number of shares of the Company is required by
applicable law or the Certificate of Incorporation and in addition to any other
vote that may be required by applicable law, without the prior written approval
of the holders of a majority of the then outstanding Series A Preferred Stock,
given in person or by proxy, either in writing or at a meeting called for that
purpose, the Company will not alter or modify any of the terms, designations,
powers, preferences, privileges or other rights of, or restrictions provided for
the benefit of holders of Series A Preferred Stock.
(b) So long as at least 196,851 shares of Series A Preferred Stock (a
majority of the initially issued shares of Series A Preferred Stock) are
outstanding, the holders of the Series A Preferred Stock, voting as a separate
class, shall have the right to elect two members of the Board (the "Series A
Directors"). The rights of the holders of the Series A Preferred Stock to elect
the Series A Directors shall terminate on the first date on which less than
196,851 shares (a majority of the initially issued shares of Series A Preferred
Stock) of Series A Preferred Stock are outstanding (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or
similar recapitalization affecting such shares). At any meeting (or in a written
consent in lieu thereof) held for the purpose of electing directors, the
presence in person or by proxy (or the written consent) of the holders of at
least a majority in interest of the then outstanding shares of Series A
Preferred Stock shall constitute a quorum of the Series A Preferred Stock for
the election of the Series A Directors; provided that such election shall occur
at a duly convened meeting of the stockholders or otherwise in accordance with
the by-laws of the Company. A vacancy in any directorship elected by the holders
of the Series A Preferred Stock shall be filled only by vote or written consent
of a majority in interest of the holders of the Series A Preferred Stock. The
term of office of the Series A Directors shall terminate on the earlier to occur
of (i) the date three (3) months subsequent to the termination of such rights,
or (ii) the annual meeting of stockholders of the Company immediately following
the termination of such rights.
(c) With respect to the voting rights of the holders of the Series A
Preferred Stock pursuant to this Section 5, each holder of Series A Preferred
Stock shall be entitled to one vote for each share of Series A Preferred Stock
with respect to each matter referred to above.
Section 6. NOTICES OF RECORD DATE. In the event:
(a) the Company shall take a record of the holders of its Common Stock
(or other stock or securities at the time issuable upon conversion of the Series
A Preferred Stock) for the purpose of entitling or enabling them to receive any
Dividend, or to receive any right to subscribe for or purchase any shares of
stock of any class or any other securities, or to receive any other right;
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(b) of any capital reorganization of the Company, any reclassification
of the Common Stock of the Company, any consolidation or merger of the Company
with or into another corporation (other than a consolidation or merger in which
the Company is the surviving entity and its Common Stock is not converted into
or exchanged for any other securities or property), or any transfer of all or
substantially all of the assets of the Company;
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
(d) of any other act or transaction requiring the approval of holders
of the Series A Preferred Stock pursuant to Section 5 above,
then, and in each such case, the Company will deliver or cause to be delivered
to the holders of the Series A Preferred Stock a notice specifying, as the case
may be, (i) the record date for such Dividend or right, and the amount and
character of such Dividend or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation, winding-up, act or transaction is to take place, and the time, if
any is to be fixed, as of which the holders of record of Common Stock (or such
other stock or securities at the time issuable upon the conversion of the Series
A Preferred Stock) shall be entitled to exchange their shares of Common Stock
(or such other stock or securities) for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up or other action. Such notice shall be
mailed at least fifteen (15) days prior to the record date (in the case of the
events described in Subsection 6(a)) or effective date (in the case of the
events described in Subsections 6(b), 6(c) and 6(d)).
Section 7. COMMON STOCK RESERVED. The Company shall reserve and keep
available out of its authorized but unissued Common Stock such number of shares
of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Series A Preferred Stock.
Section 8. REDEMPTION. The shares of Series A Preferred Stock shall be
redeemable as follows:
(a) Subject to the Company's legal ability to effect a redemption under
the applicable law, at any time on or after the initial issuance date, the
Company may elect to redeem all or any portion of the outstanding shares of
Series A Preferred Stock by paying for each share the Issue Price.
(b) Notice of the election to redeem shall be mailed, not less than
thirty (30) days prior to the specified redemption date, to each holder of
Series A Preferred Stock which is to be redeemed, at such holder's address as it
appears on the books of the Company. The notice shall specify the date of
redemption and the amount payable per share.
(c) The holders of shares of Series A Preferred Stock which have been
called for redemption shall not have any rights as stockholders on and after the
specified redemption date, regardless of whether they have surrendered their
share certificates and received payment, except the right to receive the
redemption price (as described in paragraph (a) above), without interest, upon
surrender of their share certificates, provided that on or before the specified
redemption date the Company has deposited the funds necessary for redemption
with a bank or trust company with irrevocable instructions and authority to pay
the redemption price to the stockholders upon surrender of the appropriate share
certificates.
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Section 9. REACQUIRED SHARES. Any shares of Series A Preferred Stock
converted, redeemed, purchased, or otherwise acquired by the Company in any
manner whatsoever shall, automatically and without further action, be retired
and canceled promptly after the acquisition thereof, and shall not be reissued
as shares of Series A Preferred Stock. Such shares shall be restored to the
status of authorized but unissued shares of Preferred Stock and the Company from
time to time shall take such action as may be necessary to reduce accordingly
the number of authorized shares of Series A Preferred Stock.
Section 10. NO IMPAIRMENT. The Company will not, through any
reorganization, transfer of assets, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Company but will at all time in good faith assist in the carrying out of all the
provisions of this Certificate of Designations, Preferences and Rights and in
the taking of all such action as may be necessary or appropriate in order to
protect the conversion rights and liquidation preferences granted hereunder of
the holders of the Series A Preferred Stock against impairment.
Section 11. NO WAIVER. Except as otherwise modified or provided for
herein, the holders of Series A Preferred Stock shall also be entitled to, and
shall not be deemed to have waived, any other applicable rights granted to such
holders under the Delaware General Corporation Law.
Section 12. AMENDMENT; WAIVER. Any term of the Series A Preferred Stock
may be amended or waived (including the adjustment provisions included in
Section 4(d) hereof) upon the written consent of the Company and the holders of
at least a majority of the Series A Preferred Stock then outstanding; provided,
however that the number of shares of Common Stock issuable upon exercise of
Conversion Rights hereunder and the Conversion Price may not be amended, and the
right to convert the Series A Preferred Stock may not be altered or waived,
without the written consent of the holders of all of the Series A Preferred
Stock then outstanding, except as provided in Section 4(d) hereof.
Section 13. REMEDIES CUMULATIVE. No failure or delay on the part of the
holders of the Series A Preferred Stock in the exercise of any power, right or
privilege under this Certificate of Designation shall impair such power, right
or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege. All rights and remedies existing under this Certificate of
Designation are cumulative to and not exclusive of any rights or remedies
otherwise available.
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Section 14. CERTAIN DEFINITIONS.
As used in this Certificate of Designations, Preferences and Rights of
Series A Convertible Redeemable Preferred Stock (this "Certificate of
Designations"), the following terms have the respective meanings set forth
below:
"Board" shall have the meaning set forth in the first paragraph of this
Certificate of Designation.
"Business Day" shall mean any day except Saturday, Sunday and any day
which in New York shall be a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close.
"Certificate of Incorporation" shall have the meaning set forth in the
first paragraph of this Certificate of Designation.
"Change in Control" shall be deemed to have occurred if any of the
following events occur:
(a) the consummation of any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which shares of Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the shares
of the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger; or
(b) the consummation of any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all, or substantially
all, of the assets of the Company, other than to a subsidiary or affiliate; or
(c) an approval by the stockholders of the Company of any plan or
proposal for the liquidation or dissolution of the Company; or
(d) any action pursuant to which any person (as such term is defined in
Section 13(d) of the Securities Exchange Act of 1934), corporation or other
entity (other than the Lenders (as defined in the Amended Loan Agreement) and
any person who owns more than ten percent (10%) of the outstanding Common Stock
on the date hereof, the Company or any benefit plan sponsored by the Company or
any of its subsidiaries) shall become the "beneficial owner" (as such term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or
indirectly, of shares of capital stock entitled to vote generally for the
election of directors of the Company ("Voting Securities") representing
fifty-one (51%) percent or more of the combined voting power of the Company's
then outstanding Voting Securities (calculated as provided in Rule 13d-3(d) in
the case of rights to acquire any such securities), unless, prior to such person
so becoming such beneficial owner, the Company's Board of Directors shall
determine that such person so becoming such beneficial owner shall not
constitute a Change in Control; or
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(e) the individuals (A) who, as of the date hereof (including the
nominees of the holders of the Company's Series A Convertible Redeemable
Preferred Stock), constitute the Board of Directors (the "Original Directors")
and (B) who thereafter are elected to the Board and whose election, or
nomination for election, to the Board was approved by a vote of at least two
thirds of the Original Directors then still in office (such directors being
called "Additional Original Directors") and (C) who thereafter are elected to
the Board and whose election or nomination for election to the Board was
approved by a vote of at least two thirds of the Original Directors and
Additional Original Directors then still in office, cease for any reason to
constitute a majority of the members of the Board.
"Common Stock" means the common stock, par value $.001 per share of the
Company, including the stock into which the Series A Preferred Stock is
convertible, and any capital stock of any class of the Company hereafter
authorized that shall not be entitled to a fixed sum in respect of the rights of
the holders thereof to participate in dividends or in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding up of the
Company.
"Company" shall have the meaning set forth in the first paragraph of
this Certificate of Designation.
"Dividends" shall have the meaning set forth in Section 2 of this
Certificate of Designation.
"Issue Price" means $10.16 per share.
"Junior Securities" means (i) the Common Stock and (ii) all classes and
series of stock of the Company now or hereafter authorized, issued or
outstanding which by their terms do not expressly provide that they are senior
to, or on parity with, the Series A Preferred Stock with respect to dividends or
liquidation.
"Person" or "Persons" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and
governments and agencies and political subdivisions thereto.
"Preferred Stock" shall have the meaning set forth in the resolution
set forth in the preamble of this Certificate of Designation."
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Designations this 13th day of April, 2004.
CD&L, INC.
By: /s/ Mark Carlesimo
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Name: Mark Carlesimo
Title: Vice-President
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