EXHIBIT 10.10
EXECUTION COPY
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PACIFIC MOTOR TRANSPORT COMPANY
0000 XX. XXXXXX XXXXXXXXX, XXXXX 000
XXXXXXXXX, XXXXXXXXXX 00000
April 3, 1998
Mr. Xxxx Xxxxx Xxxx
00000 Xxxx 00xx Xxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Employment Agreement
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Dear Xxxx:
This letter sets forth the terms of your employment with Pacific Motor
Transport Company, Pacer Division (the "Pacer Division" or "Company"). Pacific
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Motor Transport Company ("PMTC") is a California corporation and a wholly-owned
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subsidiary of PMT Holdings, Inc. ("Holdings"). Holdings is also the sole
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stockholder of Pacer Integrated Logistics, Inc. ("PIL"), a Delaware corporation,
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which is the successor to Intraco, Inc., d/b/a Xxxxx & Company, by merger of
Intraco, Inc., with and into PIL. Holdings, PMTC and PIL are all affiliates of
one another.
1. Duties. On the terms and subject to the conditions contained in
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this Agreement, you will be employed as the Vice President of Business
Development, Pacer Division, and shall perform such duties and services
consistent with such position as may reasonably be assigned to you from time to
time by the President of the Pacer Division or the Board of Directors of PMTC.
You will report to the President of the Pacer Division and your principal office
will not be relocated without your sole consent to any location that is more
than 50 miles from the city limits of Kansas City, Kansas.
2. Term. Unless sooner terminated in accordance with the applicable
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provisions of this Agreement, your employment hereunder shall be for the period
(the "Employment Period") commencing on the date hereof (the "Commencement
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Date") and ending on the third anniversary of the date hereof.
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3. Time to be Devoted to Employment. During the Employment Period, you
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will devote your working energies, efforts, interest, abilities and time
exclusively to the business and affairs of the Company. You will not engage in
any other business or activity which, in the reasonable judgment of the Board of
Directors of PMTC would conflict or interfere with the performance of your
duties as set forth herein, whether or not such activity is pursued for gain,
profit or other pecuniary advantage.
Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 2
4. Base Salary; Bonus; Benefits.
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(a) During the Employment Period, the Company (or any of its
affiliates) shall pay you a minimum annual base salary (the "Base Salary") of
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$100,000, payable in such installments (but not less often than semi-monthly) as
is generally the policy of the Company from time to time with respect to the
payment of regular compensation to its executive officers. The Base Salary may
be increased from time to time in the sole discretion of the Board of Directors
of PMTC. During the Employment Period, you will also be entitled to four weeks'
vacation per year and such other benefits as may be made available to other
executive officers of the Company generally, including, without limitation, (i)
participation in such health, life and disability insurance programs and
retirement or savings plans as the Company may from time to time maintain in
effect and (ii) the use of a vehicle provided by the Company or an equivalent
monthly car allowance in accordance with the policy of the Company in effect
from time to time with respect to its executive officers.
(b) In addition to the Base Salary and benefits set forth in paragraph
(a) above, you will be entitled to receive a cash incentive bonus, if any, of up
to $50,000 (with the actual amount thereof to be determined by the President of
the Pacer Division) with respect to each fiscal year of the Company occurring
during the Employment Period. Such bonus shall be due and payable as soon as
practicable, but in no event later than 30 days, following Holdings' receipt
from its public accountants of the audited consolidated financial statements of
Holdings and its subsidiaries. If your employment with Company is terminated
for any reason other than without "cause" pursuant to Section 7(b), the Company
(or any of its affiliates) will not pay you a bonus with respect to the fiscal
year in which your employment is terminated or thereafter. If your employment
with the Company is terminated without "cause" as provided in Section 7(b), you
will be entitled to receive that portion of the bonus payable for such fiscal
year pro rated through the date of such termination based on the number of days
elapsed through the termination date over 365 days, payable in accordance with
the second sentence of this Section 4(b).
5. Reimbursement of Expenses. During the Employment Period, the
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Company shall reimburse you in accordance with the policy of the Company in
effect from time to time for all reasonable and necessary traveling expenses and
other disbursements incurred by you for or on behalf of the Company in
connection with the performance of your duties hereunder upon presentation of
appropriate receipts or other documentation therefor, in accordance with all
applicable policies of the Company in effect from time to time.
6. Termination for Disability or Death. If, during the Employment
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Period, you are incapacitated or disabled by accident, sickness or otherwise
(hereinafter, a "Disability") so as to render you mentally or physically
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incapable of performing the services required to be performed by you under this
Agreement for an aggregate of 210 days in any period of 360
Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 3
consecutive days, the Company may, at any time thereafter, at its option,
terminate your employment under this Agreement immediately upon giving you
written notice to that effect. In the event of your death, your employment will
be deemed terminated as of the date of death.
7. Termination for or without "Cause".
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(a) The Company may terminate your employment hereunder at any time
for "cause" by giving you written notice of such termination, with reasonable
specificity of the grounds therefor. For purposes of this Agreement, "cause"
shall mean (i) willful misconduct with respect to the business and affairs of
the Company or Holdings or any of their respective subsidiaries or affiliates,
(ii) willful neglect of your duties or the failure to follow the lawful
directions of the Board of Directors or more senior officers of the Company to
whom you report, including, without limitation, the violation of any material
policy of the Company or Holdings or any of their respective subsidiaries or
affiliates applicable to you, (iii) the material breach of any of the provisions
of this Agreement or the Stockholders Agreement (as defined below) and if such
breach is capable of being cured, your failure to cure such breach within 30
days of receipt of written notice thereof from the Company, (iv) the commission
of a felony, (v) the commission of an act of fraud or financial dishonesty with
respect to the Company or Holdings or any of their respective subsidiaries or
affiliates or (vi) any conviction for a crime involving moral turpitude or
fraud. A termination pursuant to this Section 7(a) shall take effect
immediately upon the giving of the notice contemplated hereby. In this
Agreement, the term "Stockholders Agreement" means the Amended and Restated
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Stockholders Agreement dated as of December 16, 1997, among Holdings, you
(pursuant to the Joinder Agreement executed by you as of the date hereof) and
the other stockholders named therein.
(b) The Company may terminate your employment hereunder at any time
without "cause" by giving you written notice of such termination, which
termination shall be effective as of the date set forth in such notice, provided
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that such date shall not be earlier than the date of the notice.
8. Effect of Termination; Forfeiture of Unvested Shares.
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(a) Upon the effective date of a termination of your employment under
this Agreement for any reason other than a termination without "cause" pursuant
to Section 7(b), neither you nor your beneficiaries or estate shall have any
further rights under this Agreement or any claims against the Company or
Holdings or any of their respective subsidiaries or affiliates arising out of
this Agreement, except the right to receive, within 30 days after the effective
date of such termination:
(i) the unpaid portion of the Base Salary provided for in Section
4, computed on a pro rata basis to the effective date of such termination;
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Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 4
(ii) reimbursement for any expenses for which you shall not have
theretofore been reimbursed, as provided in Section 5; and
(iii) the unpaid portion of any amounts earned by you prior to
the effective date of such termination pursuant to any benefit program in
which you participated during the Employment Period; provided, however,
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that you shall not be entitled to receive any benefits under any benefit
program that have accrued during any period if the terms of such program
requires that the beneficiary be employed by the Company as of the end of
such period.
(b) Upon termination of your employment under this Agreement pursuant
to Section 7(b), neither you nor your beneficiaries or estate shall have any
further rights under this Agreement or any claims against the Company or
Holdings or any of their respective subsidiaries or affiliates arising out of
this Agreement, except such rights as may arise under Section 8(c) below and the
right to receive, within 30 days after the effective date of such termination,
in the case of amounts due pursuant to clause (i) below, and at such other times
as provided in clauses (ii) and (iii) below in the case of amounts due
thereunder:
(i) the payments, if any, referred to in Section 8(a) above, to
the extent not covered by clauses (ii) and (iii) of this Section 8(b);
(ii) the right to continue to receive the Base Salary from the
effective date of such termination until the third anniversary of the
Commencement Date, payable during such period in such manner as the Base
Salary is payable pursuant to Section 4(a), reduced by 50% of any amounts
you (or your beneficiaries or estate) receive or are entitled to receive as
salary or other cash compensation from subsequent employment or for
services rendered during such period, up to a maximum of 50% of all amounts
due to you under this Section 8(b)(ii). In order to carry out the intent
of the immediately preceding sentence, you agree, for yourself and your
beneficiaries or estate, to provide the Company with such information as
the Company may reasonably request regarding your receipt of salary and
other cash compensation from subsequent employment or for services rendered
or to be rendered during or with respect to such period; and
(iii) the right to receive any bonus payable in accordance with
Section 4(b) with respect to the fiscal year in which such termination
occurs.
Notwithstanding anything in this Agreement to the contrary, your beneficiaries
or estate will be entitled to continue to receive all payments specified in this
Section 8(b) if you die after the date of a termination without "cause" or if
your termination is due to your death or Disability.
Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 5
9. Disclosure of Information.
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(a) From and after the date hereof, you shall not at any time use or
disclose to any person or entity (other than any officer, director, employee,
affiliate or representative of the Company), except as required in connection
with the performance of your duties under and in compliance with this Agreement
and as required by law and judicial process, any Confidential Information (as
hereinafter defined) heretofore acquired or acquired during the Employment
Period for any reason or purpose whatsoever, nor shall you make use of any of
the Confidential Information for your own purposes or for the benefit of any
person or entity except the Company, Holdings or any subsidiary or affiliates
thereof.
(b) For purposes of this Agreement, "Confidential Information" shall
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mean (i) the Intellectual Property Rights (as hereinafter defined) of the
Company, Holdings and their respective subsidiaries and affiliates and (ii) all
other information of a proprietary or confidential nature relating to the
Company, Holdings or any subsidiary or affiliate thereof, or the business or
assets of the Company or any such subsidiary or affiliate, including, without
limitation, books, records, agent and independent contractor lists and related
information, customer lists and related information, vendor lists and related
information, supplier lists and related information, distribution channels,
pricing information, cost information, marketing plans, strategies, forecasts,
financial statements, budgets and projections, other than (i) information which
is generally available to the public on the date hereof, or which becomes
generally available to the public after the date hereof without action by you or
(ii) information which you receive from a third party who does not have any
independent obligation to the Company, Holdings or such subsidiary or affiliate
to keep such information confidential.
(c) As used herein, the term "Intellectual Property Rights" means all
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industrial and intellectual property rights, including, without limitation,
patents, patent applications, patent rights, trademarks, trademark applications,
trade names, service marks, service xxxx applications, copyrights, copyright
applications, know-how, certificates of public convenience and necessity,
franchises, licenses, trade secrets, proprietary processes and formulae,
inventions, development tools, marketing materials, instructions, confidential
information, trade dress, logos and designs and all documentation and media
constituting, describing or relating to the foregoing, including, without
limitation, manuals, memoranda and records.
Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 6
10. Noncompetition Covenant.
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(a) You acknowledge and recognize that during the Employment Period
you will be privy to Confidential Information. You further acknowledge and
recognize that the relationships with vendors, agents and customers of the
Company and/or its affiliates that you have developed prior to the date hereof
and those that you will maintain or develop during the Employment Period with
the use and assistance of the Company and its properties and assets are of
special and unique value to the Company and its affiliates and that the Company
would find it extremely difficult to replace you. Accordingly, in consideration
of the premises contained herein and the consideration you will receive
hereunder (including, without limitation, the severance compensation described
in Section 8(b)(ii), if applicable), without the prior written consent of the
Company, you shall not, at any time during the Noncompetition Period (as defined
below), (a) directly or indirectly engage in, represent in any way, or be
connected with, any Competing Business (as defined below), whether such
engagement shall be as an officer, director, owner, employee, partner, affiliate
or other participant in any Competing Business, (b) assist others in engaging in
any Competing Business in the manner described in clause (a) above, (c) induce
other employees (other than your spouse) of the Company, Holdings or any of
their respective subsidiaries or affiliates to terminate their employment with
the Company, Holdings or any such subsidiaries or affiliates or to engage in any
Competing Business or (d) induce any customer, vendor, agent, owner/operator,
fleet owner or any other person or entity with which the Company, Holdings or
any subsidiary or affiliate thereof has a business relationship, contractual or
otherwise, to terminate or alter such business relationship. This covenant is
considered an integral part of this Agreement. The foregoing restriction shall
not apply to your ownership of publicly traded securities which represent not
more than 5% of the ownership interests of the issuer.
(b) You understand that the foregoing restrictions may limit your
ability to earn a livelihood in a business similar to the business of the
Company, Holdings or any subsidiary or affiliate thereof, but you nevertheless
believe that you have received and will receive sufficient consideration and
other benefits as an employee of the Company and under the terms of this
Agreement to justify clearly such restrictions which, in any event (given your
education, skills and ability), you do not believe would prevent you from
earning a living.
(c) As used herein, the term "Competing Business" shall mean any
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business conducted in any city or county in any state of the United States which
is engaged in providing any of the following services: freight consolidation and
deconsolidation; traffic management; railroad signal project management,
consolidation and/or deconsolidation or reclamation and salvage; intermodal
marketing; or flatbed specialized hauling utilizing owner-operators or agents;
provided, however, that:
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Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 7
(i) any entity which has separate divisions or business units,
one or more of which are engaged in any business activity described above
will not be deemed a Competing Business with respect to those portions of
such entity which are not engaged in any business activity described above
so long as your association with any such separate division or business
unit (fully taking into account your functions and the nature of your work
at such division or business unit) does not relate in any material respect
to such portion of such business which would be a Competing Business
hereunder; and
(ii) the provision of freight consolidation consulting services
to a direct shipper who is not a customer of the Company or any of its
affiliates or any railroad at the time of the termination of your
employment with the Company, or a former customer of the Company or any of
its affiliates or any railroad at any time during the 12 months preceding
such termination, shall not be deemed to be "engaging in a Competing
Business" for purposes of this Section 10; and
(iii) the term "Noncompetition Period" means the Employment
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Period and the period beginning on the effective date of any termination of
your employment with the Company and ending on the later to occur of the
(i) second anniversary thereof and (ii) the fifth anniversary of the
Commencement Date.
(d) Notwithstanding anything contained in this Agreement to the
contrary, if, following the termination of your employment with the Company, the
Company fails to pay to you any sums due under Section 8(b)(ii) hereof and (i)
you have complied in all material respects with all of the provisions of the
last sentence of Section 8(b)(ii) and (ii) such failure to pay continues for a
period of fifteen (15) days following receipt by the Company of written notice
thereof, the restrictions contained in this Section 10 shall terminate and be of
no further force or effect. Any termination of the restrictions contained in
this Section 10 pursuant to this subsection (d) shall not affect the Company's
obligations under this Agreement or constitute a waiver by you of any other
rights or remedies you may have against the Company for breach of any term
hereof.
11. Inventions Assignment. During the Employment Period, you shall
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promptly disclose, grant and assign to the Company for its sole use and benefit
any and all inventions, improvements, technical information and suggestions
reasonably relating to the business of the Company, Holdings or any of their
respective subsidiaries or affiliates (collectively, the "Inventions") which you
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may develop or acquire during the Employment Period (whether or not during usual
working hours), together with all patent applications, letters patent,
copyrights and reissues thereof that may at any time be granted for or with
respect to the Inventions. In connection therewith (a) you shall, at the
expense of the Company (including a reasonable payment (based on your last per
diem earnings) for the time involved if you are not then in the Company's employ
or receiving severance payments from the Company pursuant to Section
Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 8
8(b)(ii)), promptly execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or proper in the opinion
of the Company to vest title to the Inventions and any patent applications,
patents, copyrights, reissues or other proprietary rights related thereto in the
Company and to enable it to obtain and maintain the entire right and title
thereto throughout the world; and (b) you shall render to the Company, at its
expense (including a reasonable payment (based on your last per diem earnings)
for the time involved if you are not then in the Company's employ or receiving
severance payments from the Company pursuant to Section 8(b)(ii)), reasonable
assistance as they may require in the prosecution of applications for said
patents, copyrights, reissues or other proprietary rights, in the prosecution or
defense of interference's which may be declared involving any said applications,
patents, copyrights or other proprietary rights and in any litigation in which
the Company may be involved relating to the Inventions.
12. Assistance in Litigation. At the request and expense of the Company
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(including a reasonable payment (based on your last per diem earnings) for the
time involved if you are not then in the Company's employ or receiving severance
payments from the Company pursuant to Section 8(b)(ii)) and upon reasonable
notice, you shall, at all times during and after the Employment Period, furnish
such information and assistance to the Company as it may reasonably require in
connection with any issue, claim or litigation in which the Company may be
involved. If such a request for assistance occurs after the expiration of the
Employment Period, then you will only be required to render assistance to the
Company to the extent that you can do so without materially affecting your other
business obligations.
13. Entire Agreement; Amendment and Waiver. This agreement and the
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other writings referred to herein contain the entire agreement between the
parties hereto with respect to the subject matter hereof and thereof and
supersede any prior agreement between you and the Company or any affiliate of
the Company (including any predecessor of the Company or any of its affiliates).
No waiver, amendment or modification of any provision of this Agreement shall be
effective unless in writing and signed by each party hereto. The waiver by
either party of a breach of any provision of this Agreement by the other party
shall not operate or be construed as a waiver of any subsequent breach by such
other party.
14. Notices. All notices or other communications pursuant to this
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Agreement shall be in writing and shall be deemed to be sufficient if delivered
personally, telecopied, sent by nationally-recognized, overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 9
(i) if to the Company, to:
Pacific Motor Transport Company
Pacer Division
0000 Xxxx Xxxxxxxx Xxx Xxxx
XxXxxx, Xxxxx 00000
Attention: President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Eos Partners, L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
(ii) if to you, to:
Mr. Xxxx Xxxxx Xxxx
00000 Xxxx 00xx Xxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
15. Headings. The section headings in this Agreement are for
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convenience only and shall not control or affect the meaning of any provision of
this Agreement.
16. Severability. In the event that any provision of this Agreement is
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determined to be partially or wholly invalid, illegal or unenforceable in any
jurisdiction, then such provision shall, as to such jurisdiction, be modified or
restricted to the extent necessary to make such provision valid, binding and
enforceable, or if such provision cannot be modified or restricted, then such
provision shall, as to such jurisdiction, be deemed to be excised from this
Agreement; provided, however, that the binding effect and enforceability of the
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remaining provisions of this Agreement, to the extent the economic benefits
conferred upon the parties by virtue of this Agreement remain substantially
unimpaired, shall not be affected or impaired in any manner, and any such
invalidity, illegality or unenforceability with respect to such provisions shall
not invalidate or render unenforceable such provision in any other jurisdiction.
Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 10
17. Remedies. You acknowledge and understand that the provisions of
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this Agreement are of a special and unique nature, the loss of which cannot be
adequately compensated for in damages by an action at law, and thus, the breach
or threatened breach of the provisions of this Agreement would cause the Company
irreparable harm. You further acknowledge that in the event of a breach of any
of the covenants contained in paragraphs 9, 10 or 11, the Company shall be
entitled to immediate relief enjoining such violations in any court or before
any judicial body having jurisdiction over such a claim. All remedies hereunder
are cumulative, are in addition to any other remedies provided for by law and
may, to the extent permitted by law, be exercised concurrently or separately,
and the exercise of any one remedy shall not be deemed to be an election of such
remedy or to preclude the exercise of any other remedy.
18. Representation. You hereby represent and warrant to the Company
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that (a) the execution, delivery and performance of this Agreement by you does
not breach, violate or cause a default under any agreement, contract or
instrument to which you are a party or any judgment, order or decree to which
you are subject and (b) you are not a party to or bound by any employment
agreement, consulting agreement, noncompete agreement, confidentiality agreement
or similar agreement with any other person or entity.
19. Benefits of Agreement; Assignment. The terms and provisions of this
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Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, permitted assigns, representatives, heirs and
estate, as applicable. Holdings shall be an intended third party beneficiary of
the respective covenants and agreements contained in this Agreement. This
Agreement shall not be assignable by any party hereto without the consent of the
other party hereto, except that the Company and Holdings may each assign their
rights hereunder to any person succeeding to all or a substantial portion of
their respective businesses.
20. Counterparts. This Agreement may be executed in any number of
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counterparts, and each such counter part shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
21. Governing Law. This Agreement shall be governed by and construed in
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accordance with the domestic laws of the State of Missouri without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Missouri or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Missouri.
22. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
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WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND
Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 11
EXPERT PERSON AND THE PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO
ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS
RELATED HERETO.
* * *
Mr. Xxxx Xxxxx Xxxx
Xxxxx 3, 1998
Page 12
If the above terms are satisfactory to you, please acknowledge our
agreement by signing the enclosed copy of this letter in the space provided
below and returning it to the undersigned.
Very truly yours,
PACIFIC MOTOR TRANSPORT COMPANY
By:
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Xxxxx Xxxxxx
President, Pacer Division
Accepted and agreed to:
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Xxxx Xxxxx Xxxx
