EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of June 30, 2005
by and between XXXXXX X. XXXXXX III (hereinafter, the "Advisor"), having an
address at 0000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxxxxxx, XX 00000, and CD&L, INC., a
Delaware corporation (the "Company"), having offices at 00 Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000.
WHEREAS, the Company has benefited, and wishes to continue to
benefit, from the Advisor's expertise, and the Advisor is willing to continue to
provide the Company with his expertise;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Advisor hereby agree as follows:
1. RELATIONSHIP. The Advisor is hereby engaged by the Company
as a consultant (a) to provide advice to the Company with respect to business or
financial matters relating to the Company, particularly as it relates to merger
and acquisition activity (companies with whom the company is considering a
transaction being referred to herein as "Business Partners"); (b) to develop
strategies for selecting potential Business Partners and structuring
transactions with potential Business Partners; (c) to evaluate, structure and
assist in negotiating any potential transaction with potential Business
Partners; d) to assist the Company in future institutional investor relations,
and (e) to assist the Chairman/Chief Executive Officer of the Company in his
work for the Company. The Advisor shall not be, and shall not represent himself
to anyone as, an employee of the Company or entitled to any employment rights or
benefits from the Company. The Advisor agrees to use his best efforts to perform
services hereunder and to advance the interests of the Company and will devote
such time and effort as the Company's Chairman/Chief Executive Officer and the
Advisor mutually agree.
2. COMPENSATION AND TAXES.
(a) On July 1, 2005, the Company shall pay the Advisor by
cash, company check or wire transfer a lump sum payment of $75,000.
(b) During the term of this Agreement, the Company shall pay
the Advisor for his services hereunder at the rate of $125.00 per hour for each
full hour the Advisor provides the Company with services hereunder or a pro rata
portion of said hourly rate if less than one hour. Such payments will be made by
the Company within one week of receipt from the Advisor of documentation
describing the hours worked by the Advisor pursuant to this Agreement. The
Advisor will submit an invoice on or about the last day of each month during the
term hereof.
(c) If the Company announces or enters into an agreement with
respect to a Transaction (defined below) during the term of this Agreement and
such Transaction is thereafter consummated, then upon the closing of such
Transaction, the Company shall pay the Advisor a fee equal to $300,000 plus such
other amount, if any, as may be agreed upon by the Consultant and the Chief
Executive Officer of the Company with the approval of the Board of Directors of
the Company on the recommendation of any appropriate committee thereof. For the
purposes of this Agreement, "Transaction" means any transaction or series of
transactions, not in the ordinary course of business, as to which the Chief
Executive Officer has requested the Consultant's assistance and thereafter
whereby, directly or indirectly, any material businesses, capital stock, or
other assets of the Company and a third party approved by the Board is combined
with an unrelated third party, by way of purchase, sale, lease (with or without
a purchase option) or other transfer, including by way of any exchange, merger
or consolidation, tender offer, leveraged buy-out, restructuring,
recapitalization, repurchase, extraordinary dividend or distribution (whether
cash, property, securities, or a combination thereof), liquidation, joint
venture or partnership, minority investment or any other similar transaction.
(d) The Company shall reimburse the Advisor for all reasonable
travel and related expenses incurred by the Advisor in the performance of his
services hereunder, if generally approved in advance and upon presentation to
the Company of invoices and receipts.
(e) The Advisor shall be solely responsible for all reporting
and paying of any and all national, federal, state and local taxes, and for any
contributions and withholding and any other claim related to or arising out of
any compensation paid by the Company to the Advisor hereunder.
3. TERM AND TERMINATION. The term of this Agreement shall
commence as of the date hereof and shall continue for a term of one year unless
terminated by either party upon thirty (30) days written notice to the other
party (or terminated immediately by either party if for cause).
4. ADVISOR'S REPRESENTATIONS AND WARRANTIES. The Advisor
represents and warrants to the Company that the Advisor is not under any legal
obligation, including any obligation of confidentiality or non-competition,
which prevents the Advisor from executing or fully performing this Agreement, or
which would render such execution or performance a breach of contract with any
third party, or which would give any third party any rights in any intellectual
property which might be developed by the Advisor hereunder.
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5. NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be given in writing and
shall be deemed to have been duly given if delivered or mailed, postage prepaid,
by same day or overnight mail as follows:
(a) To the Company:
General Counsel
CD&L, Inc.
00 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
(b) To the Advisor:
Xxxxxx X. Xxxxxx III
Xxxxxx & Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
P.O. Box 1289
West Xxxxxxxx, NJ 07006
or to such other address as either party shall have previously
specified in writing to the other.
6. SEVERABILITY. In the event any provision of this Agreement
is determined by a court of competent jurisdiction to be unenforceable, the
parties will negotiate in good faith to restore the unenforceable provision to
an enforceable state and to provide reasonable additions or adjustments to the
terms of the other provisions of this Agreement so as to render the whole
Agreement valid and binding to the fullest extent possible, and in any event,
this Agreement shall be interpreted to be valid and binding to the fullest
extent possible.
7. BINDING AGREEMENT; NO ASSIGNMENT. This Agreement shall be
binding upon, and shall inure to the benefit of, the Advisor and the Company
(and the Parent, to the extent set forth herein) and their respective permitted
successors, assigns, heirs, beneficiaries and representatives. This Agreement is
personal to the Advisor and may not be assigned by him without the prior written
consent of the Board, as evidenced by a resolution of the Board. Any attempted
assignment in violation of this Section 7 shall be null and void.
8. GOVERNING LAW; CONSENT TO JURISDICTION. The validity,
interpretation, performance, and enforcement of this Agreement shall be governed
by the laws of the State of New Jersey without giving effect to its choice of
law provisions. All disputes arising under this Agreement which are not settled
between the parties shall be submitted for resolution to any court of competent
jurisdiction in Essex or Passaic County, State of New Jersey to the exclusion of
any other court.
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9. ENTIRE AGREEMENT. This Agreement shall constitute the
entire agreement among the parties with respect to the matters covered hereby
and shall supersede all previous written, oral or implied understandings among
them with respect to such matters.
10. AMENDMENTS. This Agreement may only be amended or
otherwise modified by a writing executed by all of the parties hereto.
11. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which when executed shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
12. PREVAILING PARTY. In any litigation pursuant to this
Consultant Agreement the prevailing party shall be entitled to an award of its
reasonable Counsel Fees.
13. MEMBERSHIP ON BOARD OF DIRECTORS. The parties acknowledge
that the Advisor currently serves as a director of the Company and that the
Advisor's responsibilities hereunder do not prohibit or limit his ability to
serve as a director of the Company, except that he may no longer be deemed an
"independent director" as defined by the rules of the Securities and Exchange
Commission and the American Stock Exchange.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
CD&L, INC.
By:__________________________________
_____________________________________
Xxxxxx X. Xxxxxx III
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