EXHIBIT 10.27
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made as of July 1, 1992, by and between XXXXXX X.
XXXXXX, XX. (the "Consultant") and CHEMICAL XXXXXX TANK LINES, INC., a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company is a liquid bulk common and contract carrier company
operating throughout the United States and Canada; and
WHEREAS, the Consultant is a former senior executive of the Company with
substantial experience in the Company's affairs; and
WHEREAS, the Company desires to maintain the availability of the
Consultant's special skills and expertise in the liquid bulk carrier business
and Consultant desires to provide and keep available for the Company his
services on the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Engagement.
Upon the terms and subject to the conditions set forth herein, the
Company hereby agrees to engage Consultant as a consultant, and Consultant
hereby agrees to provide consulting services to the Company.
2. Duties and Obligations.
Consultant hereby agrees to consult with the Company on all matters
relating to its operations and affairs,
including the liquid bulk carrier business. Consultant shall, to the extent
he is physically capable, perform such services at the corporate headquarters of
the Company in Exton, Pennsylvania for a minimum of one (1) day per fiscal
quarter, and shall otherwise be available to consult with the management of the
Company at such other times, by telephone, as the Company may reasonably
request.
3. Compensation.
(a) In consideration of Consultant's agreement to provide certain
services as a consultant to the Company in accordance with this Agreement, the
Company agrees to pay Consultant the sum of One Hundred Eighty Nine Thousand
Dollars ($189,000), which sum shall be deemed earned upon execution of this
Agreement subject only to Section 6 hereof, and payable during the term of this
Agreement in equal monthly payments of Two Thousand Two Hundred Fifty Dollars
($2,250) mailed to Consultant by first class mail on the first day of each
month, with the first payment due within ten (10) days of the execution hereof.
(b) In consideration of Consultant's covenant not to compete set forth
herein, the Company shall pay to Consultant the sum of One Hundred Eighty Nine
Thousand Dollars ($189,000), which sum shall, subject to the terms hereof, be
payable in equal monthly payments of Two Thousand Two Hundred Fifty Dollars
($2,250) mailed to Consultant by first class mail on the first
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day of each month, with the first payment due within ten (10) days of
the execution hereof.
4. Term.
The term of Consultant's engagement under this Agreement shall commence
on July 1, 1992 and shall continue through and until June 30, 1999 (the "Term"),
subject to earlier termination in accordance with Section 6 hereof, and the
engagement shall thereupon terminate and the Consultant's right to further
payment hereunder shall terminate.
5. Confidential Information and Covenant Not to Compete.
5.1 Non-Compete. During the term of this Agreement and for a period of
six (6) months thereafter, the Consultant shall not (i) directly or indirectly,
own, manage, operate or control, or participate in the ownership, operation,
management or control of, or be connected with or have any interest in as an
employee, consultant, advisor, agent, owner, partner, co-venturer, principal,
director, lender, officer or otherwise, any person, business, enterprise or
entity in the United States that directly or indirectly competes with the
current business or operations of the Company, which is the liquid bulk carrier
business; (ii) participate in the solicitation of any part of the business
conducted by the Company from any person, business, enterprise or entity which
is or was a customer of Company; or (iii) knowingly employ or retain, or
knowingly have any other person, business, enterprise or entity
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employ or retain, any person employed by Company during the term of such
other person's employment.
5.2 Non-Disclosure. During the term of this Agreement and for a period
of two (2) years thereafter, the Consultant hereby agrees that he shall not,
directly or indirectly, disclose to any person, business, enterprise or entity
any information concerning the methods of operation (including, without
limitation, marketing techniques and methods), sales and distribution methods,
cost or pricing methods, financial information, identity of customers, customer
requirements or needs, contracts, agreements, or any other proprietary
information with respect to the operation of the business of the Company which
is not then public knowledge. Notwithstanding the foregoing, should he be
compelled to disclose any such information in any judicial, administrative or
regulatory proceeding, then such disclosure, may be made (without being
considered a breach of this Agreement) as to the minimum amount of such
information which legal counsel retained by such party determines to be
necessary in order to comply with the order of any such judicial, administrative
or regulatory body; provided, that prior to any such disclosure, he shall use
his reasonable good faith efforts to obtain confidential treatment of any such
information which is required to be disclosed pursuant to any such order or a
judicial, administrative or regulatory body.
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5.3 Remedy. The parties hereto specifically acknowledge and agree that
the remedy at law for any breach under this Section 5 will be inadequate and
that the Company, in addition to any other relief available to it, shall be
entitled to temporary and permanent injunctive relief without the necessity of
proving actual damage. If the provisions of this Section 5 should ever be deemed
to exceed the limitations permitted by applicable law, then the parties hereto
agree that such provisions shall be reformed to set forth the maximum
limitations permitted.
6. Termination.
Notwithstanding any provision in this Agreement to the contrary, the
Company shall have the right to terminate the Consultant's engagement under, and
the term of, this Agreement only upon the occurrence of any of the following
events:
(i) any material, intentional breach by the Consultant of his
obligations under this Agreement which constitute gross negligence or willful
misconduct; or
(ii) the commission by Consultant of a crime which constitutes a felony
or otherwise involving moral turpitude, or engage in conduct which is generally
considered morally or ethically reprehensible or reasonably could have a
material adverse affect on the Company's reputation.
7. Relationship Between Parties.
Consultant will be retained by the Company strictly for the purposes and
to extent set forth in this
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Agreement and his relationship to the Company shall be that of an
independent contractor and not that of an employee, a partner or joint venturer;
and the Company shall have no duty or obligation to withhold or pay any taxes
for or on behalf of Consultant.
8. Notices.
Any notice required or permitted to be given or made under this
Agreement by one party to the other shall be deemed to have been sufficiently
given or made for all purposes hereof if mailed, certified mail, return receipt
requested, postage prepaid, hand delivered, or sent by a national overnight
delivery service, addressed or delivered to such party at its address indicated
below or to such other address as the addressee shall have theretofore furnished
in writing to the other party by written notice:
If to Consultant:
Xxxxxx X. Xxxxxx, Xx.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xx 00000
If to the Company:
Chemical Xxxxxx Tank Lines, Inc.
000 Xxxxxxxxx Xxx
Xxxxx, Xxxxxxxxxxxx 00000
Attn: President
9. Agreement.
This Agreement may not be modified except by an instrument in writing
executed by Consultant and the Company.
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10. Section Headings.
All section headings herein have been inserted for convenience of
reference only and shall in no way modify or restrict any of the terms or
provisions hereof.
11. Successors and Assigns.
This Agreement shall be binding upon and shall enure to the benefit of
the successors and assigns of the Company and Consultant.
12. Assignment.
Consultant may not assign his rights or obligations under this
Agreement.
13. Governing Law.
This Agreement shall be deemed to be a contract made under the laws of
the Commonwealth of Pennsylvania and for all purposes shall be governed by,
construed, interpreted and enforced according to the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, Consultant and the Company have caused this
Agreement to be duly executed and delivered as of the date and year first above
written.
ATTEST: CHEMICAL XXXXXX TANK LINES, INC.
/s/ [Illegible] By: /s/ [Illegible]
----------------------------- --------------------------------
(Assistant) Secretary President
/s/ [Illegible] /s/ XXXXXX X. XXXXXX, XX.
----------------------------- -------------------------------- (SEAL)
WITNESS Xxxxxx X. Xxxxxx, Xx.
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