Exhibit 10.17
EXECUTION COPY
TUG MIAMI AND LOS ANGELES BONUS AGREEMENT
by and among
TUG USA Inc.
and
The employees set out on Exhibit A hereto
October 2, 2006
TUG MIAMI AND LOS ANGELES BONUS AGREEMENT
THIS TUG MIAMI AND LOS ANGELES BONUS AGREEMENT (the "Agreement") is dated
October 2, 2006 by and among TUG USA, INC. (formerly Dolphin US Logistics,
Inc.), a New Jersey corporation (the "TUG"), and each of the employees set forth
on Exhibit A hereto (the "Employees").
W I T N E S S E T H:
WHEREAS, TUG is engaged the business of providing ocean, air and land
transportation intermediary services to major retailers, wholesalers, importers,
and domestic manufacturers (collectively, the "Logistics Business");
WHEREAS, TUG desires to award the Employees up their reaching certain
performance targets as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the parties hereby agree as follows:
ARTICLE I
EMPLOYEES COMPENSATION
1.1 COMPENSATION:
Cash Payment: TUG will pay the Employees a cash payment based upon the
achievement of specific Targets (as defined below) of the Employee's Logistic
Business (as defined below) per annum ("Cash Payments"). The Cash Payments would
be paid forty-five (45) days after the first quarter of each calendar year (the
"Payment Date"), subject to the availability of sufficient cash flow and the
Credit Agreement. If the Cash Payment is not paid within the period of
forty-five (45) days after the Payment Date, it will be paid subsequently in
full with accrued interest at an agreed money market rate subject to the terms
of the Credit Agreement. "Employees' Logistics Business" means: the net revenue
received from any business of the Employees evidenced by written agreement. The
estimated amount of Cash Payment payable with respect to each "Year" will be as
follows:
MAXIMUM ESTIMATED
YEAR EBITDA TARGET EBITDA CAP AMOUNT PAID
Year 1 US$2,200,000 US$2,650,000 US$112,500
Year 2 US$2,420,000 US$2,900,000 US$120,000
Year 3 US$2,660,000 US$3,200,000 US$135,000
Year 4 US$2,930,000 US$3,500,000 US$142,500
Year 5 US$3,220,000 US$3,800,000 US$145,000
*NOTE: IF THE EBITDA TARGET IS EXCEEDED, THAN THE EMPLOYEES ARE ENTITLED TO AN
ADDITIONAL $0.20 FOR EVERY DOLLAR IN EXCESS OF THE EBITDA TARGET UP TO $200,000
IN EXCESS OF THE EBITDA TARGET, AND $0.30 THEREAFTER UP TO THE MAXIMUM EBITDA
CAP.
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1.2 DISBURSEMENT OF COMPENSATION. The Employees agree that the Cash
Payment shall be disbursed as specified in Schedule 1.2 attached hereto and made
a part hereof and to the bank accounts set forth therein.
ARTICLE II
COVENANTS
2.1 FURTHER ASSURANCES AND ASSISTANCE. TUG and the Employees shall, from
time to time, at the request of TUG, do, execute, acknowledge and deliver or
will cause to be done, executed, acknowledged and delivered all such further
acts, deeds, assignments, transfers, conveyances, assurances and take such other
action as TUG may reasonably request and as may be reasonably necessary in order
to effectuate the terms of this Agreement.
2.2 ACCOUNTS RECEIVABLE. The Employees shall use their reasonable efforts
to collect and account for all accounts receivable that will be reflected on the
Closing Balance Sheet. Based upon an audited Closing Balance Sheet, the parties
agree that upon delivery of the final determination of the Closing Balance
Sheet, a net accounts receivable equal to accounts receivable as set forth on
such balance sheet less the allowance for doubtful accounts as set forth thereon
will be calculated (the "Net Receivables"). Forty-Five (45) days prior to the
Cash Payment Date, amounts received by TUG in connection with the Employees'
Logistic Business will be applied to the specific invoice designated by the
customer remittance. In applying any payment made by an account debtor, such
payment shall be applied to any account receivable to which it clearly relates
by reason of the amount thereof, and otherwise, as shall be specified by the
customer at the time of the making thereof or upon subsequent inquiry by TUG.
2.3 ACCOUNTS PAYABLE. Upon request, TUG shall furnish to the Employees
lists of accounts payable and accrued expenses of the Employees' Logistics
Business.
ARTICLE III
MISCELLANEOUS
3.1 AMENDMENT. This Agreement may amended only by a written instrument
executed by all parties hereto.
3.2 TERMINATION. (a) This Agreement may be terminated at any time by the
mutual agreement of the parties, with the consent of Maritime US Logistics
Holdings Inc.
3.3 ARBITRATION. In the event of any dispute, the parties agree to
arbitrate such matter in New York City, pursuant to the rules of the American
Arbitration Association, and TUG shall
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nominate one arbitrator, the Employee shall nominate one arbitrator, and
Maritime US Logistics Holdings Inc. shall nominate one arbitrator. The finding
of a majority of the arbitrators shall be binding on the parties.
3.4 EXPENSE. Except as provided elsewhere in this Agreement, each party
hereto shall assume and bear all expenses, costs and fees incurred or assumed by
such party in the preparation and execution of this Agreement. TUG shall assume
the cost and expense of any arbitration.
3.5 ASSIGNMENT. This Agreement may not be assigned by either party hereto
without the prior written consent of the other party.
3.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts which together shall constitute one and the same document.
3.7 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York.
3.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
3.9 NO THIRD PARTY BENEFICIARIES. No provision of this Agreement shall
create nor confer upon any person and third party beneficiary rights or
otherwise.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
MARITIME LOGISTICS US HOLDINGS INC. TUG USA, INC.
By:________________________________ By:________________________________
Name: Name:
Title: Title:
___________________________________ ___________________________________
[*] [*]
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