EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT (this "Agreement") made as of the 14th day of April,
2004 (the "Effective Date"), by and between CD&L, Inc., a corporation formed
under the laws of the State of Delaware (the "COMPANY"), and Xxxxxxx X. Xxxxxxx
(the "EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Company and Executive have entered into an
employment agreement as of the first day of May, 2000 that expires on or about
May 1, 2005 (the "Prior Agreement"); and
WHEREAS, the Company wishes to ensure the continued employment
of the Executive with the Company and the Executive wishes to accept such
continued employment upon the terms and conditions hereinafter set forth; and
WHEREAS, The Parties desire to amend the Prior Agreement.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. EMPLOYMENT
The Company agrees to employ the Executive during the Term
specified in Section 2, and the Executive agrees to accept such employment, upon
the terms and conditions hereinafter set forth.
2. TERM
(a) Except as otherwise provided in this Section 2, the
Executive's employment by the Company shall continue from the Effective Date and
expire on the close of business on December 31, 2008 (the "Term").
(b) Notwithstanding Section 2(a) above, the Term and
Executive's employment hereunder may terminate prior to the end thereof pursuant
to this Section 2(b) as set forth below, subject to the applicable provisions of
Section 6 of this Agreement with respect to post-termination payments and
benefits:
(i) Either party shall have the right to terminate
the Term and Executive's employment hereunder for any reason whatsoever, with or
without Cause (as hereinafter defined), by providing the other party hereto with
ninety (90) days' advance written notice of such termination.
(ii) The Company shall have the right to terminate
the Term and Executive's employment hereunder for Cause (as hereinafter defined)
by giving written notice to Executive. For purposes of this Agreement, the term
"CAUSE" shall mean the Executive's commission or omission of any act which
materially and adversely affects the Company and which constitutes: (a) a
material breach or material failure to perform his duties under applicable law
and such breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness, (b) commission of an act of dishonesty in the
performance of his duties hereunder or engagement in conduct materially
detrimental to the business of the Company, (c) conviction of a felony involving
moral turpitude, (d) a material breach or material failure to perform his
obligations and duties hereunder, which breach or failure the Executive shall
fail to remedy within 20 days after written demand from the Company, or (e)
violation in any material respect of the representations made in Section 19
below or the provisions of Sections 9 below.
(iii) The Executive shall be entitled to terminate
the Term and Executive's employment hereunder in the event that the Company is
in default of a material term of this Agreement, which default remains uncured
for a period of thirty (30) days after written notice of such default from the
Executive to the Company, such notice to specify the specific nature of the
claimed default and the manner in which the Executive requires such default to
be cured.
(iv) The Term and Executive's employment hereunder
shall automatically terminate in the event Executive shall have become Disabled
(as hereinafter defined). For the purposes of this Agreement, the term
"DISABLED" as used herein shall have the same meaning as that term, or such
substantially equivalent term, has in any applicable group disability policy
carried by the Company. If no such policy exists, the term "Disabled" shall mean
the occurrence of any physical or mental condition which materially interferes
with the performance of Executive's customary duties in his capacity as an
employee where such disability has been in effect for a period of six (6) months
(excluding permitted vacation time), which need not be consecutive, during any
single twelve (12) month period.
(v) The Term and Executive's employment hereunder
shall automatically terminate in the event of Executive's death.
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The effective date of the termination of the Executive's
employment with the Company, regardless of the reason therefor, is referred to
in this Agreement as the "DATE OF TERMINATION". If the Executive terminates
their employment for any reason other than Section 2(b)(iii) or Section 6(c),
then the Date of Termination for purposes of Sections 9 and 10 shall be December
31, 2008 regardless of when the Executive terminates their employment.
3. DUTIES AND RESPONSIBILITIES
(a) During the Term, the Executive shall have the position of
President and Chief Operating Officer and/or such other title or titles as may
be granted by the Company. The Executive shall perform such duties and
responsibilities as may reasonably be assigned to him from time to time
consistent with his position, and in the absence of such assignment, such duties
as are customary and commensurate with such position. It is understood and
agreed that Executive shall not be required to perform his duties outside of the
New York metropolitan area except for commercially and reasonably necessary
temporary or emergency assignments.
(b) The Executive agrees that he will (i) devote his best
efforts, and all his skill and ability to promote the interests of the Company;
(ii) carry out his duties in a competent and professional manner; (iii) work
with other employees of the Company in a competent and professional manner; and
(iv) generally promote the interests of the Company.
4. COMPENSATION
(a) As compensation for all services rendered by the Executive
pursuant to Section 3 above, the Company shall pay the Executive, in accordance
with the Company's normal payroll periods and practices, base salary
compensation during the first year of the Term at an annual rate of $300,000
("BASE SALARY"). The Base Salary shall be subject to periodic increases based on
the Company's merit increase procedures and practices for similar executives.
(b) During the Term, the Company shall, in addition to Base
Salary, pay the Executive a bonus in accordance with the Company's then current
executive bonus program.
(c) All compensation paid to the Executive shall be subject to
applicable tax withholding requirements.
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5. EXPENSES; FRINGE BENEFITS
(a) The Company agrees to pay or to reimburse the Executive
during the Term for all reasonable, ordinary and necessary vouchered business or
entertainment expenses incurred in the performance of his services hereunder in
accordance with the policy of the Company as from time to time in effect.
(b) During the Term, the Executive and, to the extent
eligible, his dependents, shall be entitled to participate in and receive all
benefits under any employee benefit plans and programs provided by the Company
(including without limitation, medical, dental, disability, group life
(including accidental death and dismemberment) and business travel insurance
plans and programs) applicable generally to executive officers of the Company,
subject, however, to the terms and conditions of the various plans and programs
in effect from time to time.
(c) During the Term, the Company will provide the Executive
with an automobile allowance not to exceed $7,200 per year (or that amount equal
to what other executives of the Company of similar position are provided) to
cover his costs of leasing, insuring, garaging and maintaining an automobile for
use in the business of the Company.
(d) The Executive shall be entitled to paid vacation during
the Term of four (4) weeks per year, to be taken at such time(s) as shall not
materially interfere with the Executive's fulfillment of his duties hereunder,
and shall be entitled to as many holidays, sick days and personal days as are in
accordance with the Company's policy then in effect for its executive officers
of similar position.
6. TERMINATION
(a) Upon Executive's termination of employment for any reason,
the Company shall pay the Executive (or Executive's estate in the event of his
death), within five (5) business days following such termination, any accrued
but unpaid compensation as defined in Section 4(a) and (b) (including any unused
accrued vacation pay), any accrued but unpaid automobile allowances, any unpaid
reimbursement expenses outstanding as of the Date of Termination, and Executive
and/or his beneficiaries shall be entitled to any benefits to which he or they
may be entitled to under the plans and programs described in Section 5, or any
other applicable plans and programs, as of the Date of Termination in accordance
with the terms of such plans and programs. In addition, Executive shall be
entitled to the applicable payments and benefits set forth below.
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(b)(i) If, during the Term, the Executive's employment
hereunder is terminated (i) by the Company for any reason other than Cause,
Disability or Death then Executive shall receive from the Company as liquidated
damages (A) his then applicable Base Salary compensation (including scheduled
increases pursuant to Section 4(a) which would otherwise have been payable
through the remainder of the Term had the Executive's employment not been
terminated, and (B) bonuses for the remainder of the Term as if the Executive
was still employed in an amount equal to the highest rate of bonus (determined
as a percentage of Base Salary) paid the Executive during his employment with
the Company (or, if termination as used in this Section 6(b)(i) is prior to the
end of the first Bonus Measurement Period, then the percentage shall be assumed
to be 100%). In addition, the Company shall continue to provide Executive with
the benefits and perquisites set forth under Section 5(b) and (c) for the
remainder of the Term. For purposes of this Section 6(b)(i), the Term will be
deemed to be two (2) years from the date of termination (as used in this Section
6(b)(i)) or one year after termination if termination occurs within the twelve
(12) months preceding December 31, 2008.
(ii) If, during the Term, the Executive's employment hereunder
is terminated by the Executive pursuant to Section 2(b)(iii) then the Executive
shall receive as liquidated damages (A) his then applicable Base Salary
compensation (including scheduled increases pursuant to Section 4(a)) which
would otherwise have been payable through the remainder of the Term had the
Executive's employment not been terminated, and (B) bonuses for the remainder of
the Term as if the Executive was still employed in an amount equal to the
highest rate of bonus (determined as a percentage of Base Salary) paid the
Executive during his employment with the Company (or, if termination as used in
this Section 6(b)(ii) is prior to the end of the first Bonus Measurement Period,
then the percentage shall be assumed to be 100%). In addition, the Company shall
continue to provide Executive with the benefits and perquisites set forth under
Section 5(b) and (c) for the remainder of the Term. For purposes of this Section
6(b)(ii), the Term will be deemed to commence on the Effective Date and expire
on the close of business December 31, 2008 or one year after termination if
termination occurs in the last 12 months of the Term.
(c) If the Executive's employment with the Company terminates
for any reason by either party within 180 days following a Change of Control,
the Company shall, within twenty (20) days of Executive's Date of Termination,
pay Executive (or his estate in the event of his death) (A) a lump sum amount in
cash equal to two (2) times the sum of (i) the per annum Base Salary in effect
on the Date of Termination, and (ii) the highest rate of bonus paid the
Executive (determined as a percentage of Base Salary) during his employment with
the Company (or, if termination is prior to the end of the first Bonus
Measurement Period, then the percentage shall be assumed to be 100%), and (B)
any unpaid reimbursable expenses outstanding, and any unused accrued vacation,
as of the Date of Termination. In addition, the Company shall continue to
provide Executive with the benefits and perquisites set forth under Section 5(b)
and (c) for two years from the Date of Termination, as though the Executive had
not terminated employment.
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For purposes of this Agreement, the term "CHANGE IN CONTROL"
shall have the same meaning assigned such term under the terms of the stock
option plan of the Company in effect on the Effective Date or as amended or
modified from time to time and any related terms set forth in such plan used in
defining Change in Control are hereby incorporated by reference. If Executive's
employment is terminated by the Company without Cause prior to the date of a
Change in Control, but Executive reasonably demonstrates that the termination
(A) was at the request of a third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in Control or (B) otherwise arose
in connection with, or in anticipation of, a Change in Control which has been
threatened or proposed, such termination shall be deemed to have occurred after
a Change in Control for purposes of this Agreement provided a Change in Control
shall actually have occurred.
Notwithstanding anything to the contrary set forth herein, the
Executive waives his right to terminate this Agreement under this Section 6(c)
with respect to any Change in Control that results from a certain restructuring
transaction that was consummated April 14, 2004 by and among the Company, the
Executive, BNP Paribas, Exeter Venture Lenders, LP, Exeter Capital Partners IV,
LP, and certain other individuals (the "Restructuring Transaction") or the
conversion of the notes acquired by the Executive thereunder. The Company and
the Executive agree, however, that such waiver shall not extend to any
conversion of convertible securities issued by the Company pursuant to the
Restructuring Transaction where such conversion occurred as a result of, in
connection with, or in response to an acquisition or attempted acquisition of
control of the Company by any person or entity not a party to the Restructuring
Transaction.
7. CERTAIN FURTHER PAYMENTS BY THE COMPANY.
(a) In the event that the Employee is entitled to payments
and/or benefits (i) in connection with Employee's employment with the Company or
termination thereof or (ii) from the Company, any person whose actions result in
a change of ownership or effective control covered by ss. 280G(b)(2) of the
Internal Revenue Code of 1986, as amended (the "Code"), or any person affiliated
with the Company or such person as a result of such change in ownership or
effective control (collectively the "Company Payments"), and if such Company
Payments will be subject to the tax (the "Excise Tax") imposed by ss. 4999 of
the Code, the Company shall pay to or for the benefit of the Employee at the
time specified in subsection (c) below an additional amount (the "Gross-up
Payment") such that the net amount retained by the Employee, after deduction of
any Excise Tax on the Company Payments and any U.S. federal, state and/or local
income or payroll taxes upon the Gross-up Payment, but before deduction for any
U.S. federal, state, and local income or payroll tax on the Company Payments,
shall be equal to the Company Payments. For the purposes of calculating the
Gross-Up Payment, the Employee shall be deemed to pay income taxes at the
highest applicable marginal rate of federal, state or local income taxation for
the calendar year in which the Gross-Up Payment is to be made.
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(b) Subject to any determinations made by the Internal Revenue Service
(the "IRS"), all determinations as to whether a Gross-Up Payment is required and
the amount of Gross-Up Payment and the assumptions to be used in arriving at the
determination shall be made by the Company's independent certified public
accountants, appointed prior to any change in ownership (as defined under Code
ss. 280G(b)(2)), and/or tax counsel selected by such accountants (the
"Accountants") in accordance with the principles of ss.280G of the Code. All
fees and expenses of the Accountants will be borne by the Company. Subject to
any determinations made by the IRS, determinations of the Accountants under this
Agreement with respect to (i) the initial amount of any Gross-Up Payments and
(ii) any subsequent adjustment of such payment shall be binding on the Company
and the Employee.
(c) The Gross-Up Payment calculated pursuant to paragraph (b) shall be
paid no later than the thirtieth (30th) day following an event occurring which
subjects the Employee to the Excise Tax; provided, however, that if the amount
of such Gross-Up Payment or portion thereof cannot be reasonably determined on
or before such day, the Company shall pay to the Employee the amount of the
Gross-Up Payment no later than 10 days following the determination of the
Gross-Up payments by the Accountants. Notwithstanding the foregoing, the
Gross-Up Payment shall be paid to or for the benefit of the employee no later
than fifteen (15) business days prior to the date by which the Employee is
required to pay the Excise Tax or any portion of the Gross-Up Payment to any
federal, state or local taxing authority, without regard to extensions.
(d) In the event that the Excise Tax is subsequently determined by the
Accountants to be less than the amount taken into account hereunder at the time
the Gross-Up Payment is made, the Employee shall repay to the Company, at the
time that the amount of such reduction in Excise Tax is finally determined, the
portion of the prior Gross-up Payment attributable to such reductions (plus the
portions of the Gross-up Payment attributable to the Excise Tax and U.S.
federal, state and local income tax imposed on the portion of the Gross-Up
Payment being repaid by the Employee if such repayment results in a reduction in
Excise Tax or a U.S. federal, state and local income tax deduction), plus
interest on the amount of such repayment at the rate provided in ss.
1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any
portion of the Gross-up Payment to be refunded to the Company has been paid to
any U.S. federal, state, and local income tax authorities, repayment thereof
(and related amounts) shall not be required until actual refund or credit of
such portion has been made to the Employee, and interest payable to the Company
shall not exceed the interest received or credited to the Employee by such tax
authority for the period it held such portion. The Employee and the Company
shall cooperate in good faith in determining the course of action to be pursued
(and the method of allocating the expense thereof) if the Employee's claim for
refund or credit is denied. However, if agreement cannot be reached, the Company
shall decide the appropriate course of action to pursue provided that the action
does not adversely impact any issues Employee may have with respect to his tax
return, other than the Excise Tax.
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(e) In the event that the Excise Tax is later determined by the
Accountants or the IRS to exceed the amount taken into account hereunder at the
time the Gross-Up Payment is made (including by reason of any payment the
existence or amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional Gross-Up Payment to or for the
benefit of the Employee in respect of such excess (plus any interest or
penalties payable with respect to such excess) at the time that the amount of
such excess is finally determined.
(f) In the event of any controversy with the IRS (or other taxing
authority) with regard to the Excise Tax, the Employee shall permit the Company
to control issues related to the Excise Tax (at the Company's expense) provided
that such issues do not potentially materially adversely affect the Employee. In
the event issues are interrelated, the Employee and the Company shall in good
faith cooperate so as not to jeopardize resolution of either issue. In the event
of any conference with any taxing authority as to the Excise Tax or associated
income taxes, the Employee shall permit the representative of the Company to
accompany the Employee, and the Employee and the Employee's representative shall
cooperate with the Company and its representative.
(g) The Company shall be responsible for all charges of the Accountant.
(h) The Company and the Employee shall promptly deliver to each other
copies of any written communications, and summaries of any verbal
communications, with any taxing authority regarding the Excise Tax.
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8. LEGAL FEES AND EXPENSES. In the event that a claim for
payment or benefits under this Agreement is disputed, the Company shall pay all
reasonable attorney fees and expenses incurred by the Executive in pursuing such
claim, provided that the Executive is successful as to at least part of the
disputed claim by reason of litigation, arbitration or settlement.
9. CONFIDENTIAL INFORMATION In consideration of the payments
made to the Executive herein, the Executive agrees as follows:
(a) The Executive hereby agrees and acknowledges that he has
and has had access to or is aware of Confidential Information. The Executive
hereby agrees that he shall keep strictly confidential and will not during and
after the Term, without the Company's express written consent, divulge, furnish
or make accessible to any person or entity, or make use of for the benefit of
himself or others, any Confidential Information obtained, possessed, or known by
him except as required in the regular course of performing the duties and
responsibilities of his employment by the Company while in the employ of the
Company, and that he will, prior to or upon his Date of Termination deliver or
return to the Company all such Confidential Information that is in written or
other physical or recorded form or which has been reduced to written or other
physical or recorded form, and all copies thereof, in his possession, custody or
control. The foregoing covenant shall not apply to (i) any Confidential
Information that becomes generally known or available to the public other than
as a result of a breach of the agreements of the Executive contained herein,
(ii) any disclosure of Confidential Information by the Executive that is
expressly required by judicial or administrative order; provided however that
the Executive shall have (x) notified the Company as promptly as possible of the
existence, terms and circumstances of any notice, subpoena or other process or
order issued by a court or administrative authority that may require him to
disclose any Confidential Information, and (y) cooperated with the Company, at
the Company's request, in taking legally available steps to resist or narrow
such process or order and to obtain an order or other reliable assurance that
confidential treatment will be given to such Confidential Information as is
required to be disclosed.
(b) For purposes of this Agreement, "CONFIDENTIAL INFORMATION"
means all non-public or proprietary information, data, trade secrets,
"know-how", or technology with respect to any products, designs, improvements,
research, styles, techniques, suppliers, clients, markets, methods of
distribution, accounting, advertising and promotion, pricing, sales, finances,
costs, profits, financial condition, organization, personnel, business systems
(including without limitation computer systems, software and programs), business
activities, operations, budgets, plans, prospects, objectives or strategies of
the Company.
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10. POST-EMPLOYMENT OBLIGATIONS In consideration of the
payments made to the Executive herein, the Executive agrees as follows:
(a) The Executive agrees that his services hereunder are of a
special, unique, extraordinary and intellectual character, and his position with
the Company places him in a position of confidence and trust with employees,
suppliers and clients of the Company. The Executive further agrees and
acknowledges that in the course of the Executive's employment with the Company,
the Executive has been and will be privy to Confidential Information. The
Executive consequently agrees that it is reasonable and necessary for the
protection of the trade secrets, goodwill and business of the Company that the
Executive make the covenants contained herein. Accordingly, the Executive agrees
that he shall not, without the prior written consent of the Company, directly or
indirectly, and regardless of the reason for his ceasing to be employed by the
Company (other than a termination by the Executive pursuant to Section 2(b)(iii)
or by the Company for any reason other than Cause):
(i) for a period of two years from the Date of
Termination, hereinafter referred to as the
"Restrictive Period", own or hold any
proprietary interest in, or be employed by or
receive remuneration from, any corporation,
partnership, sole proprietorship or other
entity engaged in competition with the Company
or any of the Company's subsidiaries or
affiliates (hereinafter referred to as a
"Competitor") in the "Territory", other than
severance-type or retirement-type benefits from
entities constituting prior employers of the
Executive. The Executive agrees that during
such Restrictive Period he will not solicit the
account of any Competitor, any customer or
client of the Company or its subsidiaries or
affiliates, or any entity or individual that
was such a customer or client during the twenty
four (24) month period immediately proceeding
the Restrictive period.
(ii) during the Restrictive Period act on behalf of
any Competitor to interfere with the
relationship between the Company or their
subsidiaries or affiliates and their employees.
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(iii) during the Restrictive Period hire, solicit nor
induce to leave any employee or consultant of
the Company or any employee or consultant of
the Company who was an employee or consultant
of the Company during the twelve (12) month
period immediately proceeding the Restrictive
Period.
For purposes of this Agreement, Territory shall mean (a) an
area within 100 miles of any place of business, office, warehouse or other
facility where the Company, or any of its subsidiaries or affiliates, or any of
its agents, licensees, or franchisees conducts business. For purposes of the
proceeding paragraph, (i) the term "proprietary interest" means legal or
equitable ownership, whether through stock holding or otherwise, of an equity
interest in a business, firm or entity other than ownership of less than one
percent of any class of equity interest in a publicly held business, firm or
entity and (ii) an entity shall be considered to be "engaged in competition", if
such entity is, or is a holding company for, a company engaged in the provision
of delivery, courier, or logistics services, or other transportation services
competitive with the business of the Company, its subsidiaries or affiliates in
the Territory.
(b) If the Executive commits a breach or is about to commit a
breach, of any of the provisions of Sections 9 or 10 hereof, the Company shall
have the right to have the provisions of this Agreement specifically enforced by
any court having equity jurisdiction without being required to post bond or
other security and without having to prove the inadequacy of the available
remedies at law, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company. In addition, the
Company may take all such other actions and remedies available to them under law
or in equity and shall be entitled to such damages as they can show they have
sustained by reason of such breach.
(c) The parties acknowledge that the type and periods of
restriction imposed in the provisions of Sections 9 and 10 hereof are fair and
reasonable and are reasonably required for the protection of the Company and the
goodwill associated with the business of the Company; and that the time, scope,
geographic area and other provisions of Sections 9 and 10 have been specifically
negotiated by sophisticated parties and are given as an integral part of this
Agreement. If any of the covenants in Sections 9 and 10 hereof, or any part
thereof, is hereafter construed to be invalid or unenforceable, the same shall
not affect the remainder of the covenants or covenants, which shall be given
full effect, without regard to the invalid portions. If any of the covenants
contained in Sections 9 and 10 hereof, or any part thereof, is held to be
unenforceable because
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of the duration of such provision or the area covered thereby, the parties agree
that the court making such determination shall have the power to reduce the
duration and/or areas of such provision and, in its reduced form, such provision
shall then be enforceable. The parties hereto intend to and hereby confer
jurisdiction to enforce the covenants contained in Sections 9 and 10 hereof
above upon the courts of any state or other jurisdiction within the geographical
scope of such covenants. In the event that the courts of any one or more of such
states or other jurisdictions shall hold such covenants wholly unenforceable by
reason of the breadth of such scope or otherwise, it is the intention of the
parties hereto that such determination not bar or in any way affect the right of
the Company to the relief provided above in the courts of any other states or
other jurisdictions within the geographical scope of such covenants, as to
breaches of such covenants in such other respective states or other
jurisdictions, the above covenants as they relate to each state or other
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
11. INTELLECTUAL PROPERTY
During the Term, the Executive will disclose to the Company
all ideas, inventions and business plans developed by him during such period
which relate directly or indirectly to the business of the Company, including
without limitation, any design, logo, slogan or campaign or any process,
operation, product or improvement which may be patentable or copyrightable. The
Executive agrees that all patents, licenses, copyrights, tradenames, trademarks,
service marks, advertising campaigns, promotional campaigns, designs, logos,
slogans and business plans developed or created by the Executive in the course
of his employment hereunder, either individually or in collaboration with
others, will be deemed works for hire and the sole and absolute property of the
Company. The Executive agrees, that at the Company's request, he will take all
steps necessary to secure the rights thereto to the Company by patent, copyright
or otherwise.
12. ENFORCEABILITY
The failure of any party at any time to require performance by
another party of any provision hereunder shall in no way affect the right of
that party thereafter to enforce the same, nor shall it affect any other party's
right to enforce the same, or to enforce any of the other provisions in this
Agreement; nor shall the waiver by any party of the breach of any provision
hereof be taken or held to be a waiver of any subsequent breach of such
provision or as a waiver of the provision itself.
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13. ASSIGNMENT
This Agreement is a personal contract and the Executive's
rights and obligations hereunder may not be sold, transferred, assigned, pledged
or hypothecated by the Executive. The rights and obligation of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company; provided, however, the Company may not assign or transfer its
rights or obligations under this Agreement unless such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in
this Agreement, either contractually or as a matter of law.
14. MODIFICATION
This Agreement may not be orally canceled, changed, modified
or amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by the parties to this
Agreement.
15. SEVERABILITY; SURVIVAL
In the event any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall nevertheless be binding upon
the parties with the same effect as though the invalid or unenforceable part had
been severed and deleted. The respective rights and obligations of the parties
hereunder shall survive the termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
16. LIFE INSURANCE
During the Term hereof the Company shall at Company's expense,
provide Executive life insurance at a face amount equal to three (3) times
Executive's then current Base Salary as modified by any periodic increases of
Base Salary during the Term hereof. Company shall be responsible for any and all
income taxes due on any premiums paid by the Company for such insurance.
17. NOTICE
Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon person delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission or prepaid overnight courier service, and in each case,
addressed as follows:
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If to the Executive:
Xxxxxxx X. Xxxxxxx
0 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
If to the Company:
CD&L, Inc.
00 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Attn: General Counsel
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
18. APPLICABLE LAW
The validity, interpretation, performance, and enforcement of
this Agreement shall be governed by the laws of the State of New Jersey. In
addition, the Executive, and the Company irrevocably submit to the exclusive
jurisdiction of the courts of the State of New Jersey and the United States
District Court for the District of New Jersey for the purpose of any suit,
action, proceeding or judgment relating to or arising out of this Agreement and
the transactions contemplated hereby. Service of process in connection with any
such suit, action or proceeding may be served on the Executive anywhere in the
world by the same methods as are specified for the giving of notices under this
Agreement. The Executive irrevocably consents to the jurisdiction of any such
court in any such suit, action or proceeding and to the laying of venue in such
court. The Executive irrevocably waives any objection to the laying of venue of
any such suit, action or proceeding brought in such courts and irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
19. NO CONFLICT
The Executive represents and warrants that he is not subject
to any agreement, instrument, order, judgment or decree of any kind, or any
other restrictive agreement of any character, which would prevent him from
entering into this Agreement or which would be breached by the Executive upon
his performance of his duties pursuant to this Agreement.
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20. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the
Company and the Executive with respect to the subject matter hereof, and all
prior agreements, plans and arrangements relating to the employment of the
Executive by the Company (including without limitation the Prior Agreement) are
nullified and superseded hereby.
21. HEADINGS
The headings contained in this Agreement are for reference
purposes only, and shall not affect the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
CD&L, INC.
BY:_________________________________
NAME: XXXXXX X. XXX XXXX, XX.
TITLE: CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
BY:_________________________________
NAME: XXXXXXX X. XXXXXXX
TITLE: PRESIDENT AND CHIEF OPERATING OFFICER
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