exv10w17






Exhibit 10.17




ADVISORY AGREEMENT




     This Advisory Agreement (this “Agreement”) is made and entered into as of May 7, 2010,
by and between Thayer | Hidden Creek Management, L.P., a Delaware limited partnership (the
“Advisor”), and Roadrunner Transportation Services Holdings, Inc., a Delaware corporation
(the “Company”).



     WHEREAS, the Company desires to retain the Advisor and the Advisor desires to perform for the
Company certain services following the consummation of the Company’s initial public offering of its
common stock pursuant to the Securities Act of 1933, as amended (the “IPO”).



     NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein,
the parties agree as follows:



     1. Term. This Agreement shall be in effect for an initial term commencing on the
consummation of the IPO and ending on the tenth anniversary thereof (the “Term”), and shall be
automatically extended thereafter on a year to year basis unless the Company or the Advisor
provides written notice of its desire to terminate this Agreement to the other 90 days prior to the
expiration of the Term or any extension thereof; provided that (i) either the Company or the
Advisor may terminate this Agreement in the event of the breach of any of the material terms or
provisions of this Agreement by the other, which breach is not cured within 10 business days after
notice of the same is given to the party alleged to be in breach, and (ii) the Term shall
automatically expire, and no further payment will be due hereunder, if Advisor and its affiliates,
on a combined basis, hold less than twenty percent (20%) of the Company’s outstanding voting
capital stock. If this Agreement is terminated by the Advisor because of the breach of any of the
material terms or provisions hereof by the Company, the Advisor shall be entitled to recover
damages from the Company and shall not be required to mitigate or reduce damages by seeking or
undertaking other management arrangements or business opportunities. No termination of this
Agreement, whether pursuant to this Section 1 or otherwise, shall affect the Company’s
obligation with respect to the fees, costs, and expenses incurred by the Advisor in rendering
services hereunder and not paid and reimbursed by the Company as of the effective date of such
termination.



     2. Services. The Advisor shall perform or cause to be performed the following
services for the Company and its subsidiaries, as well as related services as may be reasonably
requested by the Board of Directors of the Company (the “Board”):



          (a) identification, support, negotiation, and analysis of acquisitions and dispositions by the
Company and its subsidiaries; and



          (b) support, negotiation, and analysis of financing alternatives, including, without
limitation, in connection with acquisitions, capital expenditures, and refinancing of existing
indebtedness.



     3. Reimbursement of Expenses. The Company shall promptly pay (or reimburse) the
Advisor for the reasonable out-of-pocket expenses incurred by the Advisor and its officers,
employees, agents, and representatives in connection with the services rendered hereunder
(including, but not limited to, all costs and expenses incurred by the Advisor in connection with
attending Board meetings). All obligations or expenses reasonably incurred by the Advisor
(including, but not limited to, legal, accounting and other advisors’ fees and expenses) in the
performance of its duties under this Agreement shall be for the account of, on behalf of, and at
the expense of the Company. The Advisor shall not be obligated to make any advance to or for the
account of the Company or to pay any sums, except out of funds held in accounts maintained by the
Company, nor shall the Advisor be obligated to incur any liability or obligation for the account of
the Company without assurance that the necessary funds for the discharge of such liability or
obligation will be provided.



 









 





     4. Transaction Fees.



          (a) During the Term, the Company shall pay to the Advisor a transaction fee in connection with
the consummation of each acquisition or divestiture by the Company or its subsidiaries (excluding
purchases or sales of equipment or inventory in the ordinary course of business) that is introduced
or negotiated by the Advisor or any of its affiliates (the “M&A Compensation”) plus all reasonable
out-of-pocket expenses of the Advisor and/or its affiliates incurred in negotiating, analyzing, and
executing such acquisition or divestiture. The M&A Compensation and such out-of-pocket expenses
shall be paid at the closing of any such acquisition or divestiture. The M&A Compensation shall be
a cash sum equal to an amount to be determined through good faith negotiations between the Board
and the Advisor based on purchase price for the acquisition or disposition (which on acquisitions
or divestitures of assets shall also include the book value of the assumed liabilities, and on
acquisitions of stock shall also include liabilities of the acquired entity that are required to be
paid with funds provided by the purchaser in connection with such acquisition).



          This Section 4(a) shall not apply to any transaction (a “Sale of the Company”)
which is (x) the sale of all, or substantially all, of the Company’s consolidated assets in any
single transaction or series of related transactions; (y) the sale or issuance, or series of
related sales or issuances, of equity securities of the Company in any single transaction or series
of related transactions which results in any person or group of affiliated persons (other than
affiliates of the Advisor) owning (on a fully-diluted basis) more than 50% of the Company’s
securities having ordinary voting power to elect directors outstanding at the time of such sale or
issuance or such series of sales and/or issuances; or (z) any merger or consolidation of the
Company with or into another corporation (regardless of which entity is the surviving corporation)
if, after giving effect to such merger or consolidation, the holders of the Company’s securities
having ordinary voting power to elect directors (on a fully-diluted basis) immediately prior to the
merger or consolidation own securities of the surviving or resulting corporation representing 50%
or less of the ordinary voting power to elect directors of the surviving or resulting corporation
(on a fully-diluted basis). The amount of any fee payable to the Advisor in connection with a Sale
of the Company shall be determined pursuant to the provisions of Section 4(d) below.



          (b) In the event of any public or private debt or equity financing by the Company or any of
its subsidiaries negotiated by the Advisor, the Company shall pay to the Advisor a transaction fee
to be determined through good faith negotiations between the Board and the Advisor plus all
reasonable out-of-pocket expenses of the Advisor and/or its affiliates incurred in negotiating,
analyzing, and executing such financing. Such fee and out-of-pocket expenses shall be paid at the
closing of any such financing. Notwithstanding the foregoing, no fee shall be payable pursuant to
this Section 4(b) if the financing is related to a transaction for which Advisor receives
M&A Compensation.



          (c) Notwithstanding anything herein to the contrary, the Advisor acknowledges and agrees that
the Company may from time to time engage the services of financial advisors in addition to the
Advisor in connection with certain acquisitions, dispositions, and financing transactions if, in
the judgment of the Board, such engagement is in the best interests of the Company and its
stockholders. In such event, the amount otherwise payable to the Advisor pursuant to Section
4(a) or 4(b) hereof may be reduced to an amount, to be determined through good faith
negotiations between the Board and the Advisor, that reflects the Advisor’s relative contribution
to the applicable transaction. If the Board and the Advisor are unable to agree upon the amount of
the reduced compensation, such compensation will be determined by arbitration in Minneapolis,
Minnesota in accordance with the rules of the American Arbitration Association. The Company and
the Advisor will share equally the cost of arbitration.



          (d) In the event of any other transaction not in the ordinary course of business or unusual
efforts extended or results obtained by the Advisor on behalf or for the benefit of the Company or
its subsidiaries, the Board and the Advisor shall in good faith determine a fair compensation
arrangement to compensate the Advisor for such matters. Such compensation arrangement shall be subject to
the



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approval of a majority of the disinterested members of the Board, which approval shall not be
unreasonably withheld.




          (e) If at any time when a payment of a fee is due under this Agreement the Company (i) does
not have sufficient available cash to make such payment, or (ii) is prohibited from making such
payment pursuant to the terms of the Company’s loan agreements or other financing arrangements,
part or all of such payment, as the case may be, shall be deferred. All deferred amounts shall be
immediately due and payable as soon as there is sufficient available cash or the payment is no
longer prohibited under the loan agreements, as the case may be.



     5. Other Activities of the Advisor. The Company acknowledges and agrees that neither
Advisor nor any of the Advisor’s employees, partners, affiliates, or agents shall be required to
devote full time and business efforts to the duties of the Advisor specified in this Agreement, but
instead the Advisor shall devote only so much of such time and efforts as the Advisor reasonably
deems necessary. The Company further acknowledges and agrees that the Advisor and its affiliates
are engaged in the business of investing in, acquiring and/or managing businesses for the Advisor’s
own account, for the account of the Advisor’s affiliates and associates and for the account of
unaffiliated parties, and understands that the Advisor plans to continue to be engaged in such
businesses (and other business or investment activities) during the Term. No aspect or element of
such activities shall be deemed to be engaged in for the benefit of the Company or any of its
subsidiaries nor to constitute a conflict of interest. Without limiting the generality of the
foregoing, the Advisor shall be required to bring only those investments and/or business
opportunities to the attention of the Company which the Advisor, in its sole discretion, believes
appropriate, and nothing herein shall restrict the Advisor from investing or directly or indirectly
engaging in competitive businesses.



     6. Liability. Neither the Advisor nor any of the Advisor’s affiliates, partners,
employees, or agents shall be liable to the Company or its subsidiaries or affiliates for any loss,
liability, damage, or expense arising out of or in connection with the Advisor’s performance of
services contemplated by this Agreement, unless such loss, liability, damage, or expense shall be
finally judicially determined to result directly from gross negligence, willful misconduct, or bad
faith on the part of the Advisor, its affiliates, partners, employees, or agents acting within the
scope of their employment or authority. The Company recognizes and confirms that the Advisor will,
from time to time in acting pursuant to this engagement, be using information in reports and other
information provided by others, including, without limitation, information provided by or on behalf
of the Company and its subsidiaries, and that the Advisor does not assume responsibility for and
may rely, without independent verification, on the accuracy and completeness of any such reports
and information. The Company hereby warrants that any information relating to the Company and its
subsidiaries that is furnished to the Advisor by or on behalf of the Company will be fair,
accurate, and complete and will not contain any material omissions or misstatements of fact. The
Company agrees that any information or advice rendered by the Advisor or its representatives in
connection with this engagement is for the confidential use of the Board only, and, except as
otherwise required by law, the Company will not and will not permit any third party to disclose or
otherwise refer to such advice or information in any manner without the Advisor’s prior written
consent.



     7. Indemnification of the Advisor. The Company hereby agrees to indemnify and hold
harmless the Advisor and its present and future officers, directors, affiliates, employees, and
agents (“Indemnified Parties”) from and against any and all claims, liabilities, losses, and
damages (or actions in respect thereof), in any way related to or arising out of the performance by
such Indemnified Party of services under this Agreement, and to advance and reimburse each
Indemnified Party on a monthly basis for reasonable legal and other expenses incurred by it in
connection with or relating to investigating, preparing to defend, or defending any actions,
claims, or other proceeding (including any investigation or inquiry) arising in any manner out of
or in connection with such Indemnified Party’s performance or non-performance under this Agreement
(whether or not such Indemnified Party is a named party in such proceedings); provided, however,
that the Company shall not be responsible under this paragraph for any
claims, liabilities, losses, damages, or expenses to the extent that they are finally
judicially determined to



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result from actions taken by such Indemnified Person that constitute gross
negligence or willful misconduct. The provisions of Sections 6 and 7 shall survive
any termination of this Agreement.




     8. Independent Contractor. The Advisor shall be an independent contractor, and
nothing contained in this Agreement shall be deemed or construed (i) to create a partnership or
joint venture between the Company and the Advisor, (ii) to cause the Advisor to be responsible in
any way for the debts, liabilities or obligations of the Company or any other party, or (iii) to
constitute the Advisor or any employees of the Advisor or any of its affiliates as employees,
officers or agents of the Company.



     9. Notices. All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when personally delivered, sent by telecopy (with receipt confirmed) on a business
day during regular business hours of the recipient (or, if not, on the next succeeding business
day) or one business day after being sent by reputable overnight courier service (charges prepaid).




	 	If to the Company:	 	 Roadrunner Transportation Systems, Inc.

4900 S. Pennsylvania Ave.

Cudahy, WI 53110

Attention: Mark A. DiBlasi
	 
	 	If to the Advisor: 	 	Thayer | Hidden Creek Management, L.P.

c/o Thayer | Hidden Creek Partners

1455 Pennsylvania Avenue, N.W. #350

Washington, D.C. 20004

Attention: Scott D. Rued





     10. Assignment. Without the consent of the Advisor, the Company shall not assign,
transfer or convey any of its rights, duties or interest under this Agreement, nor shall it
delegate any of the obligations or duties required to be kept or performed by it hereunder.
Without the prior written consent of the Company, the Advisor shall not assign, transfer or convey
any of its rights, duties, or interests under this Agreement, nor shall it delegate any of the
obligations or duties required to be kept or performed by it under this Agreement; provided that
the Advisor may, without the consent of the Company, assign any and all of its rights and
obligations hereunder to any of its affiliates.



     11. Third Party Beneficiaries.



          (a) Except for the parties to this Agreement and their respective successors and assigns,
nothing expressed or implied in this Agreement is intended, or will be construed, to confer upon or
give any person other than the parties hereto and their respective successors and assigns any
rights or remedies under or by reason of this Agreement; provided that the agent for the
Company’s lenders named in the Company’s senior credit facility (the “Credit Facility”)
shall be deemed to be a third party beneficiary for purposes of Section 4(e) above.



          (b) The Advisor hereby agrees that the payment obligations of the Company under this
Agreement, and the right of the Advisor to receive payments under this Agreement are subordinated
to payment of all amounts owing or that become owing under the Credit Facility and that payments
under this Agreement may be made only as permitted in the Credit Facility. Subordination of
amounts payable under this Agreement on the terms set forth herein shall be effective (i) in any
voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation,
dissolution, reorganization, assignment for the benefit of creditors, appointment of a custodian,
receiver, trustee or other officer with similar powers or any other proceeding for the liquidation,
dissolution, or other winding up of any of the Company or any of its successors, assigns, or
transferees and (ii) against any transferee or assignee of the Advisor. The Advisor also agrees
that if it receives any payment under this Agreement that is not permitted by the



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Credit Facility it will promptly turn over such payment to the administrative agent named
therein, if amounts are outstanding under the Credit Facility.




     12. Severability. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to person or
circumstances other than those as to which it is held invalid or enforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.



     13. Entire Agreement. This Agreement contains the entire agreement between the
parties hereto with respect to the matters herein contained and any agreement hereafter made shall
be ineffective to effect any change or modification, in whole or in part, unless such agreement is
in writing and signed by the party against whom enforcement of this change or modification is
sought.



     14. Governing Laws. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without reference to the laws of any other state.



     15. Amendments and Waivers. No provision of this Agreement may be amended or waived
without the prior written consent or each party hereto.



     16. Successors. This Agreement and all the obligations and benefits hereunder shall
inure to the successors and assigns of the parties.



     17. Counterparts. This Agreement may be executed and delivered by each party hereto
in separate counterparts, each of which when so executed and delivered shall be deemed an original
and all of which taken together shall constitute but one and the same agreement.



SIGNATURES APPEAR ON FOLLOWING PAGE






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     IN WITNESS WHEREOF, the parties have executed this Advisory Agreement as of the date first
written above.



	 	 	 	 	 
	 	THAYER | HIDDEN CREEK MANAGEMENT,
L.P.

 	 
	 	By:	 Thayer |  Hidden Creek Management Partners,
	 	 	 	L.L.C., its General Partner	 



	 	 	 	 	 
	 	By:  	                           /s/ Scott D. Rued
 	 
	 	 	Scott D. Rued, 	 
	 	 	Member 	 
	 
	 	ROADRUNNER TRANSPORTATION SYSTEMS, INC.

 	 
	 	By:  	/s/ Mark A. DiBlasi
 	 
	 	 	Mark A. DiBlasi, 	 
	 	 	President and Chief Executive Officer 	 
	 




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