AMENDMENT TO EMPLOYMENT AGREEMENT
Dated: April 11, 1996
This Amendment amends an Employment Agreement dated as of September 8,
1995 (the "Agreement") by and between Consolidated Delivery & Logistics, Inc.
(the "Company") and John Mattei (the "Executive").
Background. The Executive has served as Chairman of the Board and Chief
Executive Officer of the Company from its inception to date. The Board of
Directors of the Company has determined that it would be preferable for the
Executive to focus his duties on certain functions designated below in his role
as Chairman of the Board of the Company, and that the Executive should not
control day-to-day operations of the Company. The Board has also asked the
Executive to agree to relinquish his title as Chief Executive Officer to
facilitate the engagement by the Board of Directors of the Company of an
individual who can serve as Chief Executive Officer. The parties also desire to
reduce the term of the Agreement and amend the provisions with respect to
severance. Article 16 of the Agreement requires all amendments to be in writing.
The Executive is agreeable to these changes. Accordingly, the Agreement is
modified as follows.
Section 1. Term. The first two sentences of Section 1 of the Agreement are
deleted and amended in their entirety as follows:
"The Company agrees to employ the Executive, and the Executive agrees to be
employed by the Company, upon the terms and conditions hereinafter
provided, for a period commencing on November 27, 1995 (the "Commencement
Date") and, subject to earlier termination pursuant to Section 5 hereof,
continuing until January 3, 1997 (the "Term"). Upon the mutual agreement of
the parties, the Term may be extended for additional one-year terms
thereafter, in which case the "Term" shall be deemed to refer to the term
of this Agreement as so extended."
The parties agree to commence discussions with respect to their intentions on
extension of the Term 45 days prior to the end of the Term.
Section 2. Position and Duties. The first sentence of Section 2 of the
Employment Agreement is deleted in its entirety and replaced by the following:
"During the Term, the Executive agrees to serve as a director and Chairman
of the Board of the Company and will have such powers and duties as are
commensurate with such position and as may be reasonably conferred upon him
by the Board of Directors of the Company (the "Board") and the Executive
Committee of the Board. Such powers and duties shall include being the head
of the Company's mergers and acquisitions department and legal department
(with all people serving in such departments reporting directly to him) and
participation at a senior executive level in all institutional and
shareholder relations, banking and capital raising activities. Further,
until such time as the Board selects a new Chief Executive Officer, the
Executive shall hold the title of Chief Executive Officer of the Company."
The Executive shall report only to the Executive Committee of the Board of
Directors and/or the full Board and shall be subject to the control and
direction of such bodies.
Section 3. The first sentence of Section 3(a) of the Agreement is deleted
and replaced by the following:
(a) The Company shall pay the Executive a fixed salary at the rate of (i)
(A) $200,000 per annum during the initial Term to November 27, 1996 and (B)
$250,000 per annum from November 28, 1996 to January 3, 1997, and (ii)
$250,000 per annum if the Term is extended ("Base Salary").
Section 4. Section 5(a) (i) and (ii) are deleted and replaced by the
(i) In the event the Executive's employment terminates either (a)
during the Term due to a Without Cause Termination or a Constructive
Discharge or (b) at the end of the initial Term (January 3, 1997) or
any extended Term where both parties do not agree to renew the
Agreement and extend the Term pursuant to Section 1 as amended or (c)
by reason of Executive's death, Permanent Disability or retirement
pursuant to the terms of any retirement plan maintained by the Company
(a "Retirement Plan") (but not by reason of a Termination for Cause),
the Company shall, as a death benefit or severance pay, as the case
may be, and subject to the provisions of Section 6 below, pay to the
Executive an amount in cash equal to $600,000, subject to paragraph
(ii) The Company shall have the election to pay the foregoing sum
in a lump-sum upon termination or in 36 equal monthly installments of
principal commencing on the termination date ($16,667 each) plus
interest at the floating rate of prime plus one per annum, provided
however that the entire balance shall be immediately due and payable
upon any Change of Control (as defined in Section 9) or upon a payment
default by the Company of any monthly installment which continues for
more than five (5) business days after notice is received from the
Executive of non-payment. After such an event of default, the interest
rate on the outstanding balance due shall increase to a floating rate
equal to prime plus 3. Prime shall mean the prime or base rate of
United Jersey Bank or, if different, the Company's principal lender at
the date of default. The sum is also prepayable at the option of the
Company without premium or penalty.
Section 5. Stock Options. The Executive currently holds options to acquire
15,384 shares of the Company's Common Stock pursuant to options granted under
the Company's Employee Stock Compensation Program. Notwithstanding any provision
of his option agreement or the Program, the Company agrees that the term of any
option vested at the date of termination of employment (which shall be deemed to
be not less than 7,692 shares even if termination is at January 3, 1997) shall
not expire until 30 days after all severance or death benefit payments (pursuant
to Section 4 above) have been paid in full. The Executive acknowledges that he
has received advice from independent personal counsel with respect to the tax
impact of this provision.
Section 6. Office. So long as he is the Chairman of the Company and the
Company maintains its present office in Paramus, the Executive shall be entitled
to occupy the same office as he currently occupies and receive the same level of
secretarial and other support services as is provided to any other corporate
executive at CDL. Further, if the office moves during the Term, he shall receive
comparable offices in the new location.
Section 7. Address. Section 10(a) of the Agreement is amended to change the
address of the Company to Mack Centre IV, 61 Paramus Road, Paramus, New Jersey
Section 8. Legal Fees. The Company shall reimburse the Executive for legal
fees incurred in connection with this Amendment up to $6,500.
Section 9. Indemnification. If there are any legal proceedings initiated
against the Executive after the Term for actions by the Executive occurring in
the course of his employment during the Term so as to entitle him to
indemnification pursuant to the Company's by-laws, he shall be entitled to not
less than equivalent rights with respect to indemnification as any other officer
or director of the Company.
Section 10. Prevailing Party. In any litigation pursuant to this Amendment,
the prevailing party shall be entitled to an award of its reasonable counsel
Section 11. No Further Changes. Except as set forth herein, there shall be
no other changes in the Agreement. This Amendment shall be effective upon
approval by the Board of Directors of the Company.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by
its duly authorized officer and the Executive has signed this Amendment, all as
of the date first written above.
CONSOLIDATED DELIVERY &
By: /s/ William T. Brannan
William T. Brannan,
/s/ John Mattei