AMENDATORY AGREEMENT
This AMENDATORY AGREEMENT ("Amendatory Agreement") is made and entered
into as of the 5th day of January, 2001 by and between CD&L, Inc. (the
"Company") and Albert W. Van Ness, Jr. (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company and the Executive have entered into an Employment
Agreement dated January 5, 2000 (the "Employment Agreement"); and
WHEREAS, the Company and the Executive wish to amend the Employment
Agreement in the manner set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Section 3(a) of the Employment Agreement is hereby amended in its
entirety, to read as follows:
(a) For the period of the Term from January 1, 2001 to and
including June 30, 2001, the Executive shall have the position
of Chairman and Chief Executive Officer of the Company and/or
such other title or titles as may be agreed between the
Executive and the Company. During the period July 1, 2001 to
the end of the Term, the Executive shall have the position of
Chairman of the Company and/or such other title or titles as
may be agreed between the Executive and the Company, but shall
not be the Chief Executive Officer. The Executive shall
perform such duties and responsibilities as may reasonably be
assigned to him by the Board 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.
2. Section 4(a) of the Employment Agreement is hereby amended in its
entirety, to read as follows:
(a) Subject to Section 4(e) below, as compensation for all
services rendered by the Executive pursuant to Section 3
above,
the Company shall pay the Executive, in accordance with its
normal payroll periods and practices, base salary compensation
at an annual rate per anum ("Base Salary") as follows:
(i) for the period January 5, 2001 to January 4,
2002, Executive's Base Salary shall be $325,000 per annum; and
(ii) for the period January 5, 2002 to the expiration
of the Term, Executive's Base Salary shall be increased to
$350,000 per annum.
Without limiting the foregoing provision, for each of the
second and third years of the Term, the Compensation Committee
of the Board (the "Compensation Committee") will review
Executive's annual Base Salary, in light of the actual and
expected growth of the Company, for the purpose of evaluating
an increase in Executive's annual Base Salary in addition to
the scheduled increase herein.
3. Section 4(b) of the Employment Agreement is hereby amended in its
entirety, to read as follows:
(b) Subject to Section 4(e) below, during the Term, the
Company shall, in accordance with the Company's executive
bonus program, pay the Executive, in addition to Base Salary,
a bonus for each fiscal year of the Company which is
calculated as a percentage of Base Salary earned during the
bonus measurement period, based on the business plan approved
by the Board, hereinafter referred to as the "Target". The
bonus will range, as provided in the executive bonus program,
in increments from 0% of Base Salary if the Target is missed
by 10% or more, to 60% of Base Salary if the Target is reached
but not exceeded, and to 100% of Base Salary if the Target is
exceeded by 10% or more.
In no event shall the Executive's annual bonus exceed 100% of
the Executive's Base Salary for such year.
4. Paragraph (e) is hereby added to Section 4 of the Employment
Agreement, to read as follows:
(e) Notwithstanding anything contained in this Agreement to
the contrary:
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(i) for the period April 1, 2001 through June 30,
2001, the applicable Base Salary set forth in Section 4(a)
shall be reduced by thirty percent (30%);
(ii) for the period July 1, 2001 through September
30, 2001, the applicable Base Salary set forth in Section 4(a)
shall be reduced by forty percent (40%); and
(iii) for the period October 1, 2001 through the
expiration of the Term, the applicable Base Salary set forth
in Section 4(a) shall be reduced by fifty percent (50%).
The amount of time which the Executive is required and expected to devote to the
business of the Company shall be reduced proportionately with the salary
reduction
5. Section 4(f) is hereby added to the Employment Agreement, to read as
follows:
(f) In the event that the Company sells one or more of its
divisions or subsidiaries during the period from January 1,
2001 through the expiration of the Term, the Executive shall
be paid an amount equal to one percent (1.0%) of the excess of
the (x) sales price, over (y) the sum of (1) transaction fees
and other expenses incurred in connection with the sale
(including but not limited to broker's fees, commissions
(other than the amount payable to Executive hereunder) and
attorneys fees and costs), and (2) any third party debt for
borrowed money or acquisition debt attributable to any such
division or subsidiary (other than intercompany debt) to the
extent that such debt or other liabilities are not assumed by
the purchaser of such division or subsidiary. For purposes of
the foregoing, a sale shall be deemed to have occurred prior
to the expiration of the Term if a definitive purchase and
sale agreement is executed before the end of the Term;
provided, however, that no amount shall be payable to
Executive hereunder unless the sale of the subject division or
subsidiary is consummated within one year following the end of
the Term. Any amount payable hereunder to Executive shall be
paid in cash as soon as reasonably practicable following the
consummation of the applicable sale; provided, however, that
if the sales price is paid in installments, the Company may,
in its discretion, pay Executive such amount (without
interest) over substantially the same period as such
installments are received by the Company.
6. Except as amended herein, the Employment Agreement shall continue in
full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendatory
Agreement as of the day and year first above written.
CD&L, INC.
By:
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Name:
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Title:
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Albert W. Van Ness, Jr.
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