Exhibit 99.9
SUBSCRIPTION AGENT AGREEMENT
________ __, 2004
American Stock Transfer & Trust Company
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Ladies and Gentlemen:
In connection with your appointment as Subscription Agent in the transaction
described herein, CD&L, Inc. (the Company), hereby confirms its arrangements
with you as follows:
1. RIGHTS OFFERING - The Company is offering (the "Rights Offering") to
the holders of shares of its Common Stock, par value $.001 per share
("Common Stock"), on ____________, 2004 (the "Record Date"), as well as
the holders as of the Record Date of rights to acquire Common Stock as
listed on Exhibit A hereto, the right ("Rights") to subscribe for
shares of Common Stock. Except as set forth under Paragraphs 8 and 9
below, Rights shall cease to be exercisable at 5:00 p.m., New York City
time, on _______________, 2004 or such later date of which the Company
notifies you orally and confirms in writing (the "Expiration Date").
The Company will issue 0.25 of a Right for each share of Common Stock
either outstanding on the Record Date or issuable upon the conversion
or exercise of certain of the Company's other outstanding securities as
of the Record Date. The exercise of one whole Right and payment in full
of the subscription price of $1.016 per share (the "Subscription
Price") are required to subscribe for one share of Common Stock. Rights
are evidenced by non-transferable subscription rights certificates in
registered form ("Subscription Certificates"). Each holder of
Subscription Certificate(s) who exercises the holder's right to
subscribe for all shares of Common Stock that can be subscribed for
with the Rights evidenced by such Subscription Certificate(s) (the
"Basic Subscription Privilege") will have the right to subscribe for
such number of additional shares of Common Stock, if any, available as
a result of any unexercised Rights, which number of additional shares
shall not exceed one times the holder's Basic Subscription Privilege
(such additional subscription right being referred to hereafter as the
"Oversubscription Privilege"). The Rights Offering will be conducted in
the manner and upon the terms set forth in the Company's Prospectus
dated _______________, 2004 (the "Prospectus"), which is incorporated
herein by reference and made a part hereof as if set forth in full
herein.
The Company shall not issue fractions of Rights nor shall you
distribute Subscription Certificates which evidence fractional Rights.
The aggregate number of Rights issued to each holder will be rounded up
to the nearest whole number. All questions as to the validity and
eligibility of any rounding of fractional Rights shall be determined by
the Company in its sole discretion, and its determination shall be
final and binding. The Company shall not issue fractional shares of
Common Stock to exercising holders upon exercise of Rights.
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2. APPOINTMENT OF SUBSCRIPTION AGENT - You are hereby appointed as
Subscription Agent to effect the Rights Offering in accordance with the
Prospectus. Each reference to you in this Subscription Agent Agreement
(this "Agreement") is to you in your capacity as Subscription Agent
unless the context indicates otherwise.
3. DELIVERY OF DOCUMENTS - Enclosed herewith are the following, the
receipt of which you acknowledge by your execution hereof:
(a) a copy of the Prospectus;
(b) the form of Subscription Certificate (with instructions);
(c) Notice of Guaranteed Delivery;
(d) a form of Letter to Record Holders;
(e) a form of Letter to Brokers;
(f) a form of Letter to Clients;
(g) a Substitute Form W-9;
(h) a Beneficial Owner Election Form;
(i) resolutions adopted by the Board of Directors of the Company in
connection with the Rights Offering, certified by the secretary
of the Company.
As soon as is reasonably practical, you shall mail or cause to be
mailed to each (a) holder of record of (i) shares of Common Stock
and/or (ii) securities of the Company exercisable for or convertible
into shares of Common Stock as listed on Exhibit A hereto (the
"Derivative Securities'), in either case, at the close of business on
the Record Date a Subscription Certificate evidencing the Rights to
which such holder is entitled, Instructions as to Use of Subscription
Rights Certificates, a Notice of Guaranteed Delivery, a Prospectus, a
Letter to Record Holders, a Substitute Form W-9 and an envelope
addressed to you, and (b) to each person who holds shares of Common
Stock as a nominee for the beneficial owners thereof, a Letter to
Brokers, Nominee Holder Certification and such number of copies of the
Prospectus, Instructions as to Use of Subscription Rights Certificates,
Notice of Guaranteed Delivery, Letter to Clients, Substitute Form W-9
and a Beneficial Owner Election Form as such nominees shall reasonably
request. You will prepare and issue Subscription Certificates in the
names of the holders of the Common Stock and the Derivative Securities
of record at the close of business on the Record Date and for the
number of Rights to which they are entitled. The Company will also
provide you with a sufficient number of copies of each of the documents
to be mailed with the Subscription Certificates.
4. SUBSCRIPTION PROCEDURE -
(a) Upon your receipt prior to 5:00 p.m., New York City time, on the
Expiration Date (by mail, hand or overnight delivery), as Subscription
Agent, of (i) any Subscription Certificate completed and endorsed for
exercise, as provided on the reverse side of the Subscription
Certificate (except as provided in paragraph 8 hereof), and (ii)
payment in full of the Subscription Price in U.S. funds by check,
certified check, cashier's check, or bank draft drawn upon a U.S. bank
or a U.S. postal money order payable at par (without deduction for bank
service charges or otherwise) to the order of American Stock Transfer &
Trust Company, you shall as soon as practicable after the Expiration
Date, but after performing the procedures described in subparagraphs
(b) and (c) below, mail to the subscriber's registered address on the
books of the Company certificates representing the shares of Common
Stock underlying each whole Right duly subscribed for (pursuant to the
Basic Subscription Privilege and the Oversubscription Privilege) and
furnish a list of all such information to the Company.
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(b) As soon as practicable after the Expiration Date you shall
calculate the number of shares of Common Stock to which each subscriber
is entitled pursuant to the Oversubscription Privilege and subject to
the limits thereon. The Oversubscription Privilege may only be
exercised by holders who purchase all of the shares of Common Stock
that can be subscribed for under their Basic Subscription Privilege.
The shares of Common Stock available for purchase under the
Oversubscription Privilege will be those that have not been subscribed
and paid for pursuant to the Basic Subscription Privilege (the
"Remaining Shares"). Where there are sufficient Remaining Shares to
satisfy all additional subscriptions by holders exercising their rights
under the Oversubscription Privilege, each holder shall be allotted the
number of additional shares of Common Stock subscribed for, subject to
the limit on the holder's Oversubscription Privilege. If the aggregate
number of shares of Common Stock subscribed for under the
Oversubscription Privilege exceeds the number of Remaining Shares, the
number of Remaining Shares allotted to each participant in the
Oversubscription Privilege, subject to the limit on the holder's
Oversubscription Privilege, shall be the product (disregarding
fractions) obtained by multiplying the number of Remaining Shares by a
fraction of which the numerator is the number of shares of Common Stock
duly subscribed for by that participant under the Oversubscription
Privilege and the denominator is the aggregate number of additional
shares of Common Stock duly subscribed for by all participants under
the Oversubscription Privilege.
(c) Upon calculating the number of shares of Common Stock to which each
subscriber is entitled pursuant to the Oversubscription Privilege and
the amount overpaid, if any, by each subscriber, you shall, as soon as
practicable, furnish a list of all such information to the Company.
(d) Upon calculating the number of shares of Common Stock to which each
subscriber is entitled pursuant to the Oversubscription Privilege and
assuming payment for the additional shares of Common Stock subscribed
for has been delivered, you shall mail, as contemplated in subparagraph
(a) above, the certificates representing the additional shares of
Common Stock which the subscriber has been allotted. If a lesser number
of shares of Common Stock is allotted to a subscriber under the
Oversubscription Privilege than the subscriber has tendered payment
for, you shall remit the difference to the subscriber without interest
or deduction at the same time as certificates representing the shares
of Common Stock allotted pursuant to the Oversubscription Privilege are
mailed.
(e) Funds received by you pursuant to the Basic Subscription Privilege
and the Oversubscription Privilege shall be held by you in a segregated
account. Upon mailing certificates representing the shares of Common
Stock purchased in the Rights Offering and refunding to subscribers any
funds delivered for additional shares of Common Stock subscribed for
but not allocated, if any, you shall promptly remit to the Company all
funds received in payment of the Subscription Price for shares of
Common Stock sold in the Rights Offering.
5. SUBDIVISION, SALE OR TRANSFER OF RIGHTS - No subdivisions or transfers
of Subscription Certificates shall be permitted.
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6. DEFECTIVE EXERCISE OF RIGHTS; LOST SUBSCRIPTION CERTIFICATES - The
Company shall have the absolute right to reject any defective exercise
of Rights or to waive any defect in exercise. Unless requested to do so
by the Company, you shall not be under any duty to notify holders of
Subscription Certificates of any defects or irregularities in
subscriptions. Such subscriptions will not be deemed to have been duly
made until any such defects or irregularities have been cured or waived
within such time as the Company shall determine. You shall as soon as
practicable return Subscription Certificates with defects or
irregularities which have not been cured or waived to the holders of
the Rights evidenced by such Subscription Certificates. If any
Subscription Certificate is alleged to have been lost, stolen or
destroyed, you should follow the same procedures followed for lost
stock certificates representing shares of Common Stock that you use in
your capacity as transfer agent for the Company's Common Stock.
7. LATE DELIVERY - If prior to 5:00 p.m., New York City time, on the
Expiration Date you receive (i) payment in full of the Subscription
Price for the shares of Common Stock being subscribed for and (ii) a
guarantee notice substantially in the form of the Notice of Guaranteed
Delivery delivered with the Subscription Certificate, from a commercial
bank or trust company having an office or correspondent in the United
States, or a member firm of any registered United States national
securities exchange or of the National Association of Securities
Dealers, Inc. stating the certificate number of the Subscription
Certificate relating to the Rights, the name and address of the
exercising subscriber, the number of Rights represented by the
Subscription Certificate held by such exercising subscriber, the number
of shares of Common Stock being subscribed for pursuant to the Rights
and guaranteeing the delivery to you of the Subscription Certificate
evidencing such Rights within three American Stock Exchange ("AMEX")
trading days following the date of the Notice of Guaranteed Delivery,
then the Rights may be exercised even though the Subscription
Certificate was not delivered to you prior to 5:00 p.m., New York City
time, on the Expiration Date, provided that within three AMEX trading
days following the date of the Notice of Guaranteed Delivery you
receive the properly completed Subscription Certificate evidencing the
Rights being exercised, with signatures guaranteed if required.
8. DELIVERY - You shall deliver to the Company the exercised Subscription
Certificates that you receive from subscribers in accordance with
written directions received from the Company and shall deliver to the
subscribers who have duly exercised Rights certificates representing
the shares of Common Stock purchased at their registered addresses or
as otherwise instructed on the reverse side of the Subscription
Certificates.
9. REPORTS - You shall notify the Company by telephone on or before the
close of business an each business day during the period commencing 5
business days after the mailing of the Rights and ending at the
Expiration Date (and in the case of guaranteed deliveries ending three
AMEX trading days after the Expiration Date) (a "daily notice"), which
notice shall thereafter be confirmed in writing, of (i) the number of
Rights exercised on the day covered by such daily notice, (ii) the
number of Rights subject to guaranteed exercises on the day covered by
such daily notice, (iii) the number of Rights for which defective
exercises have been received on the day covered by such daily notice,
and (iv) the cumulative total of the information set forth in clauses
(i) through (iii) above. At or before 5:00 p.m., New York City time, on
the first AMEX trading day following the Expiration Date you shall
certify in writing to the Company the cumulative total through the
Expiration Date of all the information set forth in clauses (i) through
(iii) above. At or before 10:00 a.m., New York City time, on the fifth
AMEX trading day following the Expiration Date you will execute and
deliver to the Company a certificate setting forth the number of Rights
exercised pursuant to a Notice of Guaranteed Delivery and as to which
Subscription Certificates have been timely received. You shall also
maintain and update a listing of holders who have fully or partially
exercised their Rights and holders who have not exercised their Rights.
You shall provide the Company or its designees with such information
compiled by you pursuant to this paragraph 9 as any of them shall
request.
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10. FUTURE INSTRUCTIONS - With respect to notices or instructions to be
provided by the Company hereunder, you may rely and act on any written
instruction signed by any one or more of the following authorized
officers or employees of the Company:
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11. PAYMENT OF EXPENSES - The Company will pay you compensation for acting
in your capacity as Subscription Agent hereunder in the amount of
$7,500 plus your reasonable out-of-pocket expenses.
12. COUNSEL - You may consult with counsel satisfactory to you, which may
be counsel to the Company, and the advice or opinion of such counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by you hereunder in good faith
and in accordance with such advice an opinion of such counsel.
13. INDEMNIFICATION - The Company covenants and agrees to indemnify and
hold you harmless against any costs, expenses (including reasonable
fees of legal counsel), losses or damages, which may be paid, incurred
or suffered by or to which you may become subject arising from or out
of, directly or indirectly, any claim or liability resulting from your
actions as Subscription Agent pursuant hereto (each, a "Claim");
provided that such covenant and agreement does not extend to such
costs, expenses, losses and damages incurred or suffered by you as a
result of, or arising out of, your own negligence, misconduct, bad
faith or breach of contract or that of any employees, agents or
independent contractors used by you in connection with performance of
your duties as Subscription Agent hereunder. In connection therewith:
(i) in no case shall the Company be liable with respect to any Claim
against you unless you shall have notified the Company in writing of
the assertion of the Claim against you promptly after you shall have
notice of a Claim or shall have been served with the summons or other
legal process giving information as to the nature and basis of the
Claim; provided, however, that your failure to notify the Company in
the above manner will absolve the Company of liability only when such
failure will result or has resulted in prejudice to the Company with
respect to such Claim; (ii) the Company shall be entitled to control
the defense of any suit brought to enforce any such Claim; and (iii)
you agree not to settle or compromise any Claim with respect to which
you may seek indemnification from the Company without the prior written
consent of the Company. In no event shall the Company be liable for the
fees and expenses of any additional counsel that you may retain.
14. NOTICES - Unless otherwise provided herein, all reports, notices and
other communications required or permitted to be given hereunder shall
be in writing and delivered by hand or confirmed telecopy or by first
class U.S. mail, postage prepaid, shall be deemed given if by hand or
telecopy, upon receipt or if by U.S. mail, three business days after
deposit in the U.S. mail and shall be addressed as follows
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(a) If to the Company, to:
CD&L, Inc.
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(b) If to you, to:
American Stock Transfer & Trust Company
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15. MISCELLANEOUS PROVISIONS -
(a) Neither this Agreement nor any rights or obligations hereunder may
be assigned or delegated by either party without the prior written
consent of the other party.
(b) This Agreement shall inure to the benefit of and be binding upon
the parties and their respective successors and permitted assigns.
Nothing in this Agreement is intended or shall be construed to confer
upon any other person any right, remedy or claim or to impose upon any
other person any duty, liability or obligation.
(c) This Agreement, and all matters arising directly or indirectly from
this Agreement (collectively the "Agreement Matters"), shall be
governed by and construed in accordance with the internal laws of the
state of New Jersey applicable to agreements made and to be performed
entirely in such state, without giving effect to the conflict of law
principles thereof. Each of the parties hereto hereby (i) irrevocably
consents and submits to the sole exclusive jurisdiction of the United
States District Court for the District of New Jersey or the Superior
Court of New Jersey (and of the appropriate appellate courts therefrom)
in connection with any suit, action or other proceeding arising out of
or relating to this Agreement or any Agreement Matter, (ii) irrevocably
waives, to the fullest extent permitted by law, any objection that it
may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum, and (iii) agrees that service of any summons,
complaint, notice or other process relating to such suit, action or
other proceeding may be effected in the manner provided by Section 14
hereof.
(d) The parties hereto agree that if any of the provisions contained in
this Agreement shall be determined invalid, unlawful or unenforceable
to any extent, such provisions shall be deemed modified to the extent
necessary to render such provisions enforceable. The parties hereto
further agree that this Agreement shall be deemed severable, and the
invalidity, unlawfulness or unenforceability of any term or provision
hereof shall not affect the validity, legality or enforceability of
this Agreement or of any term or provision hereof.
(e) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall be
considered one and the same agreement.
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(f) The captions and descriptive headings herein are for the
convenience of the parties only. They do not in any way modify,
amplify, alter or give full notice of the provisions hereof.
(g) Any facsimile signature of any party hereto shall constitute a
legal, valid and binding execution hereof by such party.
(h) Each party agrees to perform such further acts and execute such
further documents as are necessary to effect the purposes of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Subscription Agent
Agreement, as of the day and year first above written.
CD&L, INC.
By: ________________________________
Name:
Title:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: ________________________________
Name:
Title:
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EXHIBIT A
DERIVATIVE SECURITIES
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