EXHIBIT 10.91
SEPARATION AGREEMENT
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THIS SEPARATION AGREEMENT (the "Agreement") is entered into as of this
14th day of November, 2003 by and between RAILAMERICA, INC., a Delaware
corporation (the "Company"), and XXXX X. XXXXXXX (the "Executive").
RECITALS
WHEREAS, the Executive has been employed pursuant to the terms of an
Executive Employment Agreement dated as of January 1, 2002 by and between the
Company and the Executive (the "Employment Agreement"); and
WHEREAS, the Company and the Executive have agreed that the Employment
Agreement shall terminate on November 14, 2003 (the "Termination Date"); and
WHEREAS, the Company and the Executive now wish to set forth in this
Agreement all of their respective rights and obligations resulting from such
termination of the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
between the parties, the sufficiency of which is hereby acknowledged, the
Company and Executive hereby agree to the following Terms and Conditions:
TERMS AND CONDITIONS
1. RECITALS. All of the foregoing Recitals are true and correct and are
incorporated as part of these Terms and Conditions.
2. TERMINATION OF EMPLOYMENT AGREEMENT. The Company and the Executive
each acknowledge and agree that the Employment Agreement shall terminate and be
of no further force and effect as of the Termination Date.
3. SEVERANCE BENEFITS. In consideration for the termination of the
Employment Agreement, the Company and the Executive agree that the Company shall
provide the Executive with the following benefits (the "Severance Benefits"), in
each case reduced by any applicable employment or withholding taxes:
(a) ACCRUED BUT UNPAID SALARY AND FRINGE BENEFITS. The
Executive shall receive:
i. his Base Salary (as that term is defined in the
Employment Agreement) through the Termination Date, payable at such time and in
such manner as it would have been payable had the Executive's employment with
the Company not terminated on the Termination Date, and
ii. any benefits under Sections 5(b)(i), 5(b)(ii),
5(b)(iii), 5(b)(iv), 5(b)(v), and 5(b)(vii) of the Employment Agreement that
have accrued, but are unpaid, as of the Termination Date.
(b) CONTINUATION OF SALARY AND BENEFITS. The Executive shall
continue to receive:
i. his Base Salary, and
ii. the benefits under Sections 5(b)(i), 5(b)(ii),
5(b)(iii), 5(b)(iv), 5(b)(v), and 5(b)(vii) of the Employment Agreement,
payable for the twelve month period beginning on the
Termination Date and ending on the last day of that twelve month period, at the
same time and in the same manner as if the Executive's employment with the
Company had not terminated; provided, however, that the Executive shall be
entitled to the medical and dental insurance benefits described in Section
5(b)(i) of the Employment Agreement if and to the extent that he timely elects
COBRA coverage with respect to those coverages and continuously maintains the
COBRA coverage throughout the period. The Company shall reimburse the Executive
for his actual premium expense with respect to maintaining the COBRA coverage
during the foregoing period.
(c) CONTINUATION OF LONG TERM INCENTIVE PROGRAM BENEFIT. The
Executive shall receive (i) 100% of the Performance Award under the LTIP for the
Performance Period running from January 1, 2001 through December 31, 2003, (ii)
a prorated portion (i.e., 94.5%) of the Performance Award for the Performance
Period running from January 1, 2002 through December 31, 2004, calculated as if
his employment with the Company had actually terminated on the date that is 12
months after the Termination Date, and (iii) a prorated portion (i.e., 61.1%) of
his Performance Award for the Performance Period running from January 1, 2003
through December 31, 2005, calculated as if his employment with the Company had
actually terminated on the date that is 12 months after the Termination Date.
The payments for each such Performance Period shall be calculated pursuant to
the formula provided in Section 5.6 of the LTIP, and shall be paid to the
Executive in the time and manner specified in Section 5.10 of the LTIP;
(d) CONTINUATION OF MANAGEMENT INCENTIVE PROGRAM BENEFIT. The
Executive shall receive a bonus equal to 100% of the amount that would have been
payable to him under the Company's Management Incentive Program ("MIP") in
respect of 2003 if he had remained employed with the Company through the end of
2003, payable at such time and in such manner as bonuses under the MIP in
respect of 2003 are paid to other executives of the Company. The Executive also
shall receive a bonus equal to a prorated portion of the bonus that would have
been payable to him if his employment with the Company had terminated on the
date that is twelve months after the Termination Date, and payable an such time
and in such manner as bonuses under the MIP in respect of 2004 are paid to other
executives of the Company. The payments shall be calculated using the
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Executive's Base Salary as of the Termination Date, and the Target % applicable
under the MIP as of the Termination Date, without regard to any changes to the
MIP or the formula used to calculate bonuses thereunder made after the
Termination Date. For purposes of the calculations, the Percent Accomplishment
under the MIP shall be considered to have been 100%.
(e) STOCK OPTIONS. The stock options granted to the Executive
by the Company, and listed on Exhibit A attached hereto (the "Options"), shall
become vested in the Executive as of the Termination Date. Each of the Options
shall expire unless exercised by the Executive on or before February 14, 2004.
(f) RESTRICTED STOCK. The 10,000 shares of restricted stock
granted to the Executive under that certain Restricted Stock Agreement between
the Company and the Executive, dated as of June 19, 2003 (the "Restricted
Stock"), shall become vested in the Executive as of the Termination Date.
(g) CERTAIN VIOLATIONS. The Executive's violation of any of
the provisions of Section 5, 6, 7 or 11 hereof shall, in addition to any other
remedy, result in a cessation of all Severance Benefits hereunder.
4. NO FURTHER COMPENSATION. The Executive acknowledges and agrees that
other than the Severance Benefits described in Section 3 above, no further
compensation or benefits or other monies are owed to the Executive by the
Company arising out of the Employment Agreement.
5. NON-COMPETITION. In consideration for the Company's provision of the
Severance Benefits under Section 3 of this Agreement, the Executive agrees that
he shall not, for a period of 12 months after the Termination Date, directly or
indirectly, perform services or duties in any capacity, whether as a consultant,
independent contractor, agent, director, officer, manager, supervisor or
employee, for any person or entity that operates railroad track within fifty
(50) miles of any track operated by the Company or any of its subsidiaries or
affiliates (collectively, the "Controlled Group").
6. NON-SOLICITATION OF EMPLOYEES. For a period of 12 months after the
Termination Date, the Executive shall not, directly or indirectly, for himself
or for any other person, firm, corporation, partnership, association or other
entity, employ or attempt to employ or enter into any contractual arrangement
with, any employee, former employee, consultant or former consultant of the
Company or any other member of the Controlled Group (whether or not such
employment is full-time or part-time or pursuant to a written contract), unless
such employee, former employee, consultant or former consultant has not been
employed by the Company or any other member of the Controlled Group for a period
in excess of twelve months.
7. CONFIDENTIALITY.
(a) SEPARATION AGREEMENT. The parties hereto covenant and
agree that this Agreement and its terms and conditions are, collectively and
individually, totally confidential and from the date of this Agreement forward,
shall forever be kept TOTALLY CONFIDENTIAL and shall not in any manner or for
any reason be disclosed by either party without the express written consent of
the other party, except on a "need to know basis" (i) to the immediate family
members of the Executive, all of whom shall be informed of and be bound by the
provisions of this paragraph; (ii) to the attorneys and accountants of either
party; (iii) as may be required by government agencies, such as the Internal
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Revenue Service; or (iv) pursuant to court order or subpoena compelling such
disclosure. Should either party or their representatives receive any such
subpoena or court order compelling disclosure, that party shall immediately
notify the other party so that it may have the opportunity to interpose an
objection.
(b) BUSINESS INFORMATION. In the course of the Executive's
relationship with the Controlled Group, some or all of the members of the
Controlled Group have disclosed or made known to the Executive, and the
Executive has been given access to or has become acquainted with, certain
information, business plans, strategies, trade secrets and the like, relating to
or useful in one or more of the businesses of the Controlled Group (collectively
"Information"), and which the Company considers proprietary and desires to
maintain confidential. As a material inducement to the Company to enter into
this Agreement, the Executive covenants and agrees that, at all times after the
Termination Date, the Executive shall not in any manner, either directly or
indirectly, divulge, disclose or communicate to any person or entity, except to
or for the benefit of the Controlled Group or as directed by the Chief Executive
Officer of the Company, any of the Information which he may have acquired in the
course of or as an incident to his relationship with any member of the
Controlled Group, including, without limitation, pursuant to his employment, the
parties agreeing that such Information affects the successful and effective
conduct of the businesses of the Controlled Group and its goodwill, and that any
breach of the terms of this Section is a material breach of this Agreement. All
equipment, documents, memoranda, reports, records, computer software, disks,
tapes, other means of electronic data storage, files, materials, samples, books,
correspondence, lists, other written and graphic records and the like
(collectively, the "Materials"), affecting or relating to one or more of the
businesses of the Controlled Group, which the Executive may have prepared, used,
constructed, observed, possessed or controlled shall be and remain the sole
property of the Controlled Group. Upon the Termination Date, the Executive shall
deliver to the Company all of the Materials, Information and all copies thereof
in the custody or control of the Executive and shall certify in writing that he
has retained no copy of any Materials.
8. INJUNCTIVE RELIEF. The covenants of the Executive set forth in this
Agreement are separate and independent covenants, for which valuable
consideration has been paid, the receipt, adequacy and sufficiency of which are
hereby acknowledged by the Executive, and which have been made by the Executive
to induce the Company to enter into this Agreement. Each of the aforesaid
covenants may be availed of, or relied upon, by the Company or any other member
of the Controlled Group in any court of competent jurisdiction for the basis of
injunctive relief. Should any covenant, term or condition in this Agreement
become or be held to be overly broad as to geography, time, activity or subject
so as to be unenforceable at law or equity, such provision or provisions shall
be construed by the appropriate judicial body by limiting and reducing it or
them so as to be enforceable to the maximum extent compatible with applicable
law. It is the intent of the parties that the provisions of this Agreement be
enforced to the greatest extent allowable in law or equity.
9. NO CHARGES FILED. Executive represents and warrants that he has not
filed any claims or causes of action against the Controlled Group, including but
not limited to any charges of discrimination against the Company, with any
federal, state or local agency or court.
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10. NO ADMINISTRATIVE PROCEEDING TO BE FILED. The Executive agrees not
to institute an administrative proceeding or lawsuit against the Controlled
Group upon any basis outlined in paragraph 13 below, and represents and warrants
that, to the best of his knowledge, no other person or entity has initiated or
is authorized to initiate such administrative proceedings or lawsuit on his
behalf. Furthermore, the Executive agrees not to encourage any other person or
suggest to any other person that he or she institute any legal action or claim
against the Controlled Group or any past and present shareholders, directors,
officers, or agents.
11. NON-DISPARAGEMENT. The Executive agrees not to make any disparaging
or negative comment to any other person or entity regarding (a) any member of
the Controlled Group, (b) any of the owners, directors, officers, shareholders,
members, employees, attorneys or agents of any member of the Controlled Group,
(c) the working conditions at the Company, or (d) the circumstances surrounding
the Executive's separation from the Company. The Company agrees not to make any
disparaging or negative comment to any other person or entity regarding any
aspect of the Executive's employment with or separation from the Company.
12. DUTY OF COOPERATION. The parties hereto agree to cooperate with
each other and each other's attorneys in connection with any threatened or
pending litigation against the Company or any member of the Controlled Group, or
against the Executive. The Executive agrees to make himself available upon
reasonable notice to prepare for and appear at deposition or at trial in
connection with any such matters, and the Company agrees to make the appropriate
persons available upon reasonable notice to prepare for and appear at deposition
or at trial in connection with any such matters. Furthermore, the parties hereto
agree to cooperate fully in effecting an orderly transition with regard to the
termination of the Executive's employment and the transition of his duties to
other employees of the Company.
13. MUTUAL GENERAL RELEASE. The Executive, on behalf of himself and his
spouse, heirs, executors, administrators, personal representatives and assigns,
and the Company and all members of the Controlled Group, and all past and
present parent, subsidiary, affiliated and related entities and their divisions
and departments; and each of their owners, directors, officers, shareholders,
members, employees, attorneys and agents; and their predecessors, successors and
assigns, hereby unconditionally and irrevocably mutually release and forever
discharge each other and agree not to xxx and not to assert against each other,
any and all causes of action, claims or demands whatsoever, both known and
unknown, at law or in equity, or before any agency or commission of local, state
and federal governments, arising, alleged to have arisen, or which might have
been alleged to have arisen, or which may arise, under any law or other
statutory, administrative and common law causes of action, that either party
ever had, now has or hereafter can, shall or may have for or by reason of any
cause whatsoever, up to the effective date of this Agreement and final day of
employment pursuant to this Agreement; INCLUDING, BUT NOT LIMITED TO any and all
claims and causes of action arising out of the Executive's employment with the
Company, and any and all claims and causes of action under Title VII of the
Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act
of 1967, as amended ("ADEA"), the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), the Railway Labor Act of 1926, as amended, and any
other federal, state or local anti-discrimination law, statute or ordinance; any
lawsuit founded in tort, contract (oral, written or implied) or any other common
law or equitable basis of action.
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14. ATTORNEYS' FEES. In the event that a legal action is brought to
enforce the terms of this Agreement, the prevailing party shall be entitled to
recover its costs of court, including all attorneys fees at all trial and
appellate levels.
15. SEVERABILITY. If any provision of this Agreement is invalidated by
a court of competent jurisdiction, then all of the remaining provisions of this
Agreement shall remain in full force and effect, provided that both parties may
still effectively realize the complete benefit of the promises and
considerations conferred hereby.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the matters set forth herein and
supersedes in its entirety any and all agreements or communications, whether
written or oral, previously made in connection with the matter herein. Any
agreement to amend or modify the terms and conditions of this Agreement must be
in writing and executed by the parties hereto.
17. CONSTRUCTION. The parties acknowledge that each party has reviewed
and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to principles of
conflicts of law. The venue for any action to enforce any provision of this
Agreement shall be the state or federal courts located in Palm Beach County,
Florida.
19. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be personally delivered by courier, sent by
registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as evidenced
by the return receipt thereof, or three (3) days after deposit in the U.S. mail.
Notice shall be sent (i) if to the Company, addressed to: RailAmerica, Inc.,
0000 Xxxxxx Xxxxx Xxxx., X.X., Xxxx Xxxxx, Xxxxxxx 00000 Attention: General
Counsel, and (ii) if to the Executive, to his address as reflected on the
payroll records of the Company, or to such other address designated by the party
by written notice in accordance with this provision.
20. WAIVERS. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed as
a waiver of any subsequent breach or violation.
21. NON-ADMISSION OF LIABILITY. Neither this Agreement nor anything
contained herein shall constitute or is to be construed as an admission by the
Company or the Executive as evidence of any liability, wrongdoing, or unlawful
conduct.
22. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument and agreement.
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23. SUFFICIENT TIME TO REVIEW. The Executive acknowledges and agrees
that he has had sufficient time to review this Agreement and consult with anyone
he chooses regarding this Agreement, that he has a right to consult with legal
counsel regarding this Agreement and has been represented by counsel in
connection with this Agreement, and that he has received all information he
requires from the Company in order to make a knowing and voluntary release and
waiver of all claims against the Company.
24. RIGHT OF RESCISSION. The Executive acknowledges and agrees that he
has been given at least twenty-one (21) days to review this Agreement, and that
he has (7) seven days from the date of the execution of this Agreement by all
parties hereto within which to rescind this Agreement by providing notice in
writing to the Company. The Executive further acknowledges that by this
Agreement he is receiving consideration in addition to that to which he is
already entitled. The Executive further acknowledges that this Agreement and the
release contained herein satisfy all the requirements for an effective release
by the Executive of all age discrimination claims under ADEA.
25. JOINT PRESS RELEASE. The parties hereto agree that, upon the
execution of this Agreement, the Company shall issue the press release attached
hereto as Exhibit B.
26. HEADINGS. The headings are for the convenience of the parties, and
are not to be construed as terms or conditions of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
RAILAMERICA, INC., a Delaware corporation
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Chairman, President & CEO
EXECUTIVE:
/s/ XXXX X XXXXXXX
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Xxxx X. Xxxxxxx
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EXHIBIT A
STOCK OPTIONS
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XXXX X. XXXXXXX
STOCK OPTIONS GRANT DATE EXERCISE PRICE NUMBER OF SHARES
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$10.20 150,000
$6.25 50,000
$11.40 50,000
$12.01 50,000
$8.48 10,000
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EXHIBIT B
PRESS RELEASE
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RAILAMERICA ANNOUNCES APPOINTMENT OF NEW NORTH AMERICAN CHIEF OPERATING OFFICER
BOCA RATON, FL - NOVEMBER 17, 2003 - Xxxx X. Xxxxxx, RailAmerica (NYSE: RRA)
Chairman, President & CEO, today announced the appointment of Xxxxxx X. ("Xxx")
Xxxxxxx as RailAmerica's Executive Vice President and Chief Operating Officer,
North American Rail Group. Xx. Xxxxxxx, who has over 27 years of railroad
experience, was previously RailAmerica's Senior Vice President--Eastern
Corridor, North American Rail Group. Xx. Xxxxxxx replaces Xxxx Xxxxxxx, who has
resigned from the company to pursue other interests.
"We are extremely pleased to have a person with Joe's experience take
over this vital position within our North American operating group," said Xx.
Xxxxxx. "Xxx has extensive knowledge of our operations and a clear understanding
of what our customers need from us. Over the past few years he has played an
important leadership role in improving all facets of our rail operations and
integrating acquisitions. I am confident that he will do an excellent job in
continuing to improve our operating efficiencies and increase the profitability
of our portfolio of 46 North American railroads."
Marino added, "Xxxx Xxxxxxx made many important contributions to this
company over the past three years which were greatly appreciated. He is widely
respected in the rail industry and we wish him the best in his future
endeavors."
Xx. Xxxxxxx, 49, joined RailAmerica in February 2000 after serving as
Vice President, Field Operations for RailTex, Inc. Prior to that, he was
employed by Burlington Northern Santa Fe Railway (BNSF) and its predecessor
railroads for 23 years. Xx. Xxxxxxx held a variety of positions with BNSF,
including Terminal Superintendent, Division Superintendent and General
Superintendent of Transportation. He began his railroad career in 1976 in BNSF's
engineering department at Gillette, Wyoming.
Xx. Xxxxxxx said, "I am excited about this opportunity to lead our
North American rail operations and look forward to improving and growing our
franchise. We have an excellent operating team that is dedicated to enhancing
RailAmerica's reputation as one of the safest, most customer-oriented and
efficient rail operators in the world."
RailAmerica, Inc. (NYSE: RRA) is the world's largest short line and
regional railroad operator with 49 railroads operating approximately 17,700
miles in the United States, Canada, Australia, Chile and Argentina, including
track access arrangements. The Company is a member of the Xxxxxxx 2000(R) Index.
Its website may be found at XXX.XXXXXXXXXXX.XXX.
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DISCLAIMER REGARDING FORWARD-LOOKING STATEMENTS: THIS PRESS RELEASE CONTAINS
FORWARD-LOOKING STATEMENTS REGARDING FUTURE EVENTS AND THE PERFORMANCE OF
RAILAMERICA THAT INVOLVE RISKS AND UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS
TO DIFFER MATERIALLY INCLUDING, BUT NOT LIMITED TO, FUEL COSTS, FOREIGN CURRENCY
RISKS, FAILURE TO SUCCESSFULLY INTEGRATE ACQUISITIONS, FAILURE TO SERVICE DEBT,
FAILURE TO SUCCESSFULLY MARKET AND SELL NON-OPERATING/NON-STRATEGIC PROPERTIES
AND ASSETS WHEN SCHEDULED OR AT ALL, FAILURE TO ACCOMPLISH NEW MARKETING
INITIATIVES, ECONOMIC AND WEATHER CONDITIONS, CUSTOMER DEMAND, INCREASED
COMPETITION IN THE RELEVANT MARKET, AND OTHERS. IN PARTICULAR, FORWARD-LOOKING
STATEMENTS REGARDING EARNINGS OF THE COMPANY AND ENTITIES TO BE ACQUIRED ARE
SUBJECT TO INHERENT ECONOMIC, FINANCIAL AND OPERATING UNCERTAINTIES, INCLUDING
CHANGES IN ECONOMIC AND WEATHER CONDITIONS, THE ABILITY TO RETAIN KEY CUSTOMERS
AND THE IMPACT OF UNFORESEEN COSTS AND LIABILITIES OF SUCH ENTITIES.
FORWARD-LOOKING STATEMENTS SPEAK ONLY AS OF THE DATE THE STATEMENT WAS MADE. THE
COMPANY ASSUMES NO OBLIGATION TO UPDATE FORWARD-LOOKING INFORMATION TO REFLECT
ACTUAL RESULTS, CHANGES IN ASSUMPTIONS OR CHANGES IN OTHER FACTORS AFFECTING
FORWARD-LOOKING INFORMATION. IF THE COMPANY DOES UPDATE ANY FORWARD-LOOKING
STATEMENT, NO INFERENCE SHOULD BE DRAWN THAT THE COMPANY WILL MAKE ADDITIONAL
UPDATES WITH RESPECT TO THAT STATEMENT OR ANY OTHER FORWARD-LOOKING STATEMENTS.
WE REFER YOU TO THE DOCUMENTS THAT RAILAMERICA FILES FROM TIME TO TIME WITH THE
SECURITIES AND EXCHANGE COMMISSION, SUCH AS THE FORM 10-K, FORM 10-Q AND FORM
8-K, WHICH CONTAIN ADDITIONAL IMPORTANT FACTORS THAT COULD CAUSE ITS ACTUAL
RESULTS TO DIFFER FROM ITS CURRENT EXPECTATIONS AND FROM THE FORWARD-LOOKING
STATEMENTS CONTAINED IN THIS PRESS RELEASE.
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