EXHIBIT 10.38
EXECUTION COPY
EMPLOYMENT AGREEMENT dated as of
March 1, 2003, between PACER INTERNATIONAL,
INC., a Tennessee corporation (the
"Company"), and XXXXX X. XXXXXXX (the
"Employee").
The Company and the Employee are entering into this Agreement to set
forth the terms and conditions of the Employee's continued employment with the
Company. Accordingly, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Company and the
Employee, the Company and the Employee hereby agree as follows:
Section 1. Duties. On the terms and subject to the conditions contained in
this Agreement, the Employee will continue to be employed by the Company as its
Executive Vice President, Corporate Accounts and Relations, subject to the
supervision and direction of the Company's Board of Directors (the "Board") and
the Company's more senior officers. The Employee shall perform such duties for
and on behalf of the Company and its subsidiaries and other affiliates
consistent with such position as reasonably may be assigned to the Employee from
time to time by the Board or the Company's more senior officers.
Section 2. Term. The Employee's employment hereunder shall be for the
period (the "Employment Period") that commenced on January 1, 2003 (the
"Commencement Date"), and will end on December 31, 2004 (the "Scheduled
Termination Date"), unless his employment is sooner terminated by the Company or
the Employee pursuant to and in accordance with the applicable provisions of
this Agreement. Upon such termination, the Employee (or, if applicable, the
Employee's beneficiaries or estate) shall be entitled to those rights and
benefits provided in Section 8(a) or Section 8(b), as applicable to such
termination.
Section 3. Time to be Devoted to Employment. During the Employment Period,
the Employee shall devote substantially all of the Employee's working energies,
efforts, interest, abilities and time exclusively to the business and affairs of
the Company and its subsidiaries and other affiliates. The Employee shall not
engage in any other business or activity that, in the reasonable judgment of the
Board, would conflict or interfere with the performance of the Employee's duties
as set forth herein, whether or not such activity is pursued for gain, profit or
other pecuniary advantage.
Section 4. Base Salary; Bonus; Benefits. During the Employment Period, the
Company (or any of its Affiliates) shall pay the Employee an annual base salary
(the "Base Salary") of $572,000, payable in such installments (but not less
often than 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.
During the Employment Period, the Employee shall not be entitled to any bonus
unless otherwise determined by the Board in its sole discretion. During the
Employment Period, the Employee will be entitled to (i) no less than four (4)
weeks vacation per calendar year occurring during the Employment Period, which
shall accrue and be taken in accordance with the Company's policy in effect from
time to time, (ii) up to $400 per month for country club dues and up to $1,700
per month for an automobile allowance, and (iii) such paid holidays and other
benefits as may be made available from time to time to other executive officers
of the Company
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and its subsidiaries generally, including, without limitation, participation in
such health, life and disability insurance programs and retirement or savings
plans, if any, as the Company and its subsidiaries may from time to time
maintain in effect, subject to the Company's and its subsidiaries' rights from
time to time to amend, modify, change or terminate in any respect any of their
respective employee benefit plans, policies, programs or benefits.
Section 5. Reimbursement of Expenses. During the Employment Period (and the
Consulting Period contemplated by Section 8(c), if any), the Company reasonably
shall reimburse the Employee in accordance with the Company's policy for all
reasonable and necessary traveling expenses and other disbursements incurred by
the Employee for or on behalf of the Company in connection with the performance
of the Employee's duties hereunder upon presentation of appropriate receipts or
other documentation therefor, in accordance with all applicable policies of the
Company.
Section 6. Disability or Death. If, during the Employment Period, the
Employee is incapacitated or disabled by accident, sickness or otherwise
(hereinafter, a "Disability") so as to render the Employee mentally or
physically incapable of performing the services required to be performed by the
Employee under this Agreement for any period of ninety (90) consecutive days or
for an aggregate of one hundred and eighty (180) days in any period of three
hundred and sixty (360) consecutive days, the Company may, at any time
thereafter, at its option, terminate the Employee's employment under this
Agreement immediately upon giving the Employee written notice to that effect. In
the event of the Employee's death, the Employee's employment will be deemed
terminated as of the date of death.
Section 7. Termination.
(a) The Company may terminate the Employee's employment hereunder at
any time for "cause" by giving the Employee written notice of such termination,
containing reasonable specificity of the grounds therefor. For purposes of this
Agreement, "cause" shall mean (i) the Employee's willful misconduct with respect
to the business and affairs of the Company or any of its subsidiaries or other
affiliates, (ii) the Employee's willful neglect of the Employee's duties or the
failure to follow the lawful and reasonable directions of the Board or more
senior officers of the Company to whom the Employee reports, including the
violation of any material policy of the Company or any of its Affiliates that is
applicable to the Employee, (iii) the Employee's material breach of any of the
provisions of this Agreement or any other material written agreement between the
Employee and the Company or any of its Affiliates and, if such breach is capable
of being cured, the Employee's failure to cure such breach within thirty (30)
days of receipt of written notice thereof from the Company or any of its
Affiliates, (iv) the Employee's commission of a felony, (v) the Employee's
commission of an act of fraud or financial dishonesty with respect to the
Company or any of its Affiliates, or (vi) the Employee's 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.
(b) The Company may terminate the Employee's employment hereunder at
any time without "cause" by giving the Employee written notice of such
termination, which termination shall be effective as of the date set forth in
such notice; provided, however, that such date shall not be earlier than the
date of such notice.
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(c) The Employee may terminate his employment hereunder at any time for
"good reason" by giving the Company written notice of such termination,
specifying that such notice is being given pursuant to this Section 7(c) and
containing reasonable specificity of the grounds therefor, which termination
shall be effective as of the date the Company is deemed to have received such
notice pursuant to Section 14(b). For purposes of this Agreement, "good reason"
shall mean (i) any reduction in the Employee's then-current Base Salary; (ii)
any reduction in the benefits required under this Agreement to be provided by
the Company to the Employee, and if such reduction is capable of being cured,
the Company's failure to cure the same within thirty (30) days after the
Company's receipt of written notice thereof from the Employee; (iii) any breach
by the Company of its material obligations to the Employee under this Agreement
and, if such breach is capable of being cured, the Company's failure to cure
such breach within thirty (30) days after the Company's receipt of written
notice thereof from the Employee; and (iv) the Employee's principal office is
relocated to any location that is more than one hundred (100) miles from the
Columbus, Ohio, metropolitan area without the Employee's consent.
(d) The Employee may terminate his employment hereunder at any time for
any or no reason by giving the Company written notice of such termination,
specifying that such notice is being given pursuant to this Section 7(d), which
termination shall be effective as of the date set forth in such notice, provided
that such date shall not be earlier than the day on which such notice is
delivered to the Company (determined pursuant to Section 14(b) below). Such
notice shall be deemed to constitute the Employee's agreement to provide
consulting services to the Company during the Consulting Period pursuant to
Section 8(c)).
Section 8. Effect of Termination.
(a) Upon the effective date of a termination of the Employee's
employment under this Agreement for any reason, including the Employee's
voluntary resignation where the Employee does not agree to provide consulting
services to the Company pursuant to Section 8(c) (but excluding (1) a
termination by the Company without "cause" pursuant to Section 7(b), (2) a
termination by the Employee for "good reason" pursuant to Section 7(c), and (3)
the Employee's voluntary resignation and agreement pursuant to Section 7(d) to
provide consulting services to the Company pursuant to Section 8(c)), neither
the Employee nor the Employee's beneficiaries or estate shall have any further
rights under this Agreement or any claims against the Company or any of its
Affiliates arising out of this Agreement, except the right to receive, within
thirty (30) days after the effective date of such termination (or such earlier
period as may be required by applicable law):
(i) the unpaid portion of the Base Salary provided for in Section 4,
computed on a per diem basis to the effective date of such termination;
(ii) reimbursement for any expenses for which the Employee shall not
have theretofore been reimbursed, as provided in Section 5; and
(iii) the unpaid portion of any amounts earned by the Employee prior
to the effective date of such termination pursuant to any benefit program
in which the Employee participated during the Employment Period; provided,
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however, that the Employee shall not be entitled to receive any
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benefits under any benefit program that have accrued during
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any period if the terms of such program require that the beneficiary be
employed by the Company as of the end of such period; provided, however, that
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the foregoing shall not be deemed to constitute a waiver of the
Employee's rights to continue coverage pursuant to the applicable provisions of
the Consolidated Omnibus Budget Reconciliation Act of 1993 (COBRA), subject to
the applicable terms and conditions thereof.
(b) Upon the effective date of a termination of the Employee's
employment under this Agreement (1) by the Company without "cause" pursuant to
Section 7(b), (2) by the Employee for "good reason" pursuant to Section 7(c), or
(3) by the Employee as a result of his voluntary resignation and agreement
pursuant to Section 7(d) to provide consulting services to the Company pursuant
to Section 8(c), neither the Employee nor the Employee's beneficiaries or estate
shall have any further rights under this Agreement or any claims against the
Company or any of its subsidiaries or other affiliates arising out of this
Agreement, except the right to receive, within thirty (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 clause (ii) below in
the case of amounts due thereunder (or in each case such earlier period as may
be required by applicable law):
(i) the payments, if any, referred to in Section 8(a) above; and
(ii) provided that the Employee is not in breach of any provision
of this Agreement surviving such termination and does not engage in
any activity or conduct proscribed by Section 9 or Section 10
(regardless of the extent to which such Section may be enforced under
applicable law), the right to continue to receive an annual amount
equal to the Base Salary for the period commencing on the effective
date of such termination and ending on the Scheduled Termination Date,
payable during such period in such manner as the Base Salary would
have been payable pursuant to Section 4 but for such termination, with
the parties understanding that the Employee shall not have any duty to
mitigate the Company's liability pursuant to this Section 8(b)(ii) by
seeking subsequent employment or other engagements for compensation.
(c) If the Employee voluntary resigns from his employment hereunder
pursuant to Section 7(d) at any time prior to the Scheduled Termination Date,
then, in consideration of the Company's agreement to continue to provide to the
Employee, as a consulting fee, the payments contemplated by, and subject to the
conditions of, Section 8(b)(ii) , the Employee shall provide to the Company, on
a non-exclusive basis and subject to the Employee's other obligations and
commitments, such advisory and consulting services as the Company may reasonably
request from time to time during the period (the "Consulting Period") commencing
on the effective date of such resignation and ending on the Scheduled
Termination Date. During any such Consulting Period, and notwithstanding any
other provision of this Agreement to the contrary: (i) the Employee shall be
acting as an independent contractor to the Company and will have no authority to
act for or bind the Company in any way and will not represent otherwise to any
Person; and (ii) the Employee shall be responsible for, and shall indemnify,
defend and hold the Company harmless from and against, all federal, state and
local income, employment, social security and other similar taxes and levies
imposed on or payable by the Employee on or with respect to his receipt of such
consulting fees and other benefits paid and made available to the Employee
pursuant to this Section 8(c), any other provision of this Agreement to the
contrary notwithstanding. During the Consulting Period, the Company at its
expense will provide the
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Employee with an office and such shared secretarial support as may be reasonably
necessary to accommodate the Employee's performance of his duties under this
Agreement, located at the Company's or its Affiliate's offices in the vicinity
of Columbus, Ohio (so long as the Company or one of its Affiliates continues to
maintain offices at such location).
(d) In addition to, and not by way of limitation of, any other
provision of this Agreement, upon the effective date of the termination of the
Employee's employment hereunder, unless otherwise agreed by the Company, the
Employee shall surrender and deliver to the Company (i) all credit cards and
charge cards of or belonging to or issued in the name of the Company or any of
its Affiliates, (ii) all membership cards for memberships maintained by or in
the name of the Company or any of its Affiliates, (iii) all documents, records,
and files (including all copies thereof, regardless of the form or media in
which the same exist or are stored) in the Employee's possession and belonging
or relating to the Company or any of its Affiliates (except that the Employee
may retain one copy thereof for personal archive purposes, subject to the other
terms and conditions of this Agreement, including Section 9), and (iv) any and
all other personal property in the Employee's possession belonging to the
Company or any of its Affiliates. Following the termination of the Employee's
employment hereunder, the Employee and the Company shall cooperate with one
another in timely executing and filing such notices and other documents
evidencing such termination as each may reasonably request, including filings
with the Internal Revenue Service and state taxing authorities, the Securities
and Exchange Commission, and the Company's third party plan administrators.
Section 9. Disclosure of Information.
(a) From and after the date hereof, the Employee shall not at any time
use or disclose, divulge, furnish, or make accessible to any Person (other than
any officer, director, employee, Affiliate or representative of the Company and
its Affiliates), except as required in connection with the performance of the
Employee's duties under and in compliance with this Agreement and as required by
law and judicial process (after giving the Company reasonably timely notice of
the receipt of any such legal or judicial requirement), any Confidential
Information (as defined in Section 9(b)) heretofore acquired or acquired during
the Employment Period (or the Consulting Period, if any) for any reason or
purpose whatsoever, nor shall the Employee make use of any of the Confidential
Information for the Employee's own purposes or for the benefit of any person or
entity except the Company or any of its Affiliates. The covenant contained in
this Section 9 shall survive the termination or expiration of the Employment
Period and any termination of this Agreement.
(b) For purposes of this Agreement, "Confidential Information" means
(i) the Intellectual Property Rights (as defined in Section 9(c)) of the Company
and its Affiliates, and (ii) all other knowledge and information of a
proprietary or confidential nature relating to the Company or any of its
Affiliates, or the business or assets of the Company or any of its Affiliates,
including: 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; provided, however, that
Confidential Information shall not include (A) information that is generally
available to the public on the date hereof, or that becomes generally available
to the public after the date hereof without
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action by the Employee, or (B) information that the Employee receives from a
third party who does not have any independent obligation to the Company to keep
such information confidential.
(c) For purposes of this Agreement, the term "Intellectual Property
Rights" means all industrial and intellectual property rights, including,
without limitation, patents, patent applications, letters patent, 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, discoveries, improvements,
ideas, 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.
Section 10. Noncompetition Covenant.
(a) The Employee acknowledges and agrees that he has received and will
continue to receive significant and substantial benefits from his prior and
future employment with the Company under this Agreement and the Prior Agreements
(as defined in Section 13), including the remuneration, compensation and other
consideration inuring to his benefit hereunder, as well as introductions to,
personal experience with, training in and knowledge of the Company and its
Affiliates, the industries in which they engage, and third parties with whom
they conduct business. Accordingly, in consideration of the foregoing, and to
induce the Company to employ or retain and continue to employ or retain the
Employee hereunder and to provide such benefits to the Employee, in each case
subject to the terms and conditions of this Agreement and the applicable
employment policies of the Company and its Affiliates, the Employee agrees that
he will not, during the Employment Period and the period commencing on the
effective date of the termination of his employment with the Company and
Affiliates for any reason and ending on the Scheduled Termination Date (the
Employment Period and such latter period together being called the
"Non-competition Period" herein) (i) in any geographic area where the Company or
any of its subsidiaries or other affiliates conducts business during the
Non-competition Period, engage in or participate in, directly or indirectly
(whether as an officer, director, employee, partner, consultant, holder of an
equity or debt investment, lender or in any other manner or capacity, including,
without limitation, by the rendering of services or advice to any person), or
lend his name (or any part or variant thereof) to, any Competing Business (as
defined in Section 10(b)) (provided, however, that the foregoing shall not apply
to the shipment of goods or commodities in cases where the Employee or one of
his Affiliates is the beneficial owner, consignor or consignee of such freight
and is engaged primarily in the business of manufacturing or distributing such
goods or commodities); (ii) deal, directly or indirectly, in a competitive
manner with any customers doing business with the Company or any of its
subsidiaries or other affiliates during the Non-competition Period; (iii)
solicit or employ any officer, director or agent of the Company or any of its
subsidiaries or other affiliates to become an officer, director, or agent of the
Employee, the Employee's affiliates or anyone else; or (iv) engage in or
participate in, directly or indirectly, any business conducted under any name
that shall be the same as or similar to the name of the Company or any of its
subsidiaries or other affiliates or any trade name used by any of them. The
Employee's ownership for investment purposes only of less than two percent (2%)
of the outstanding shares of capital stock or class of debt securities of any
corporation with one or more classes of its capital stock listed on a national
securities exchange or actively traded in the over-
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the-counter market shall not constitute a breach of the foregoing covenant. The
Employee is entering into the foregoing covenant to induce the Company to extend
this Agreement to, and to enter into this Agreement with, the Employee; the
Employee also acknowledges and reaffirms the terms of Section 7.9 of the Stock
Purchase Agreement dated as of December 18, 2000, among the Company, the
Employee and the other parties thereto and agrees that this Section 10 shall be
in addition to and independent of, and shall in no way modify or limit, the
terms of such Section 7.9 (it being agreed that, solely as to the Employee, the
proviso in clause (i) above shall also apply to clause (i) of Section 7.9(a) of
such Stock Purchase Agreement).
(b) For purposes of this Agreement, the term "Competing Business" means
any transportation or other business that the Company or any of its Affiliates
has engaged in at any time during the Employment Period in any city or county in
any state of the United States, or in any similar political division of any
state, province, canton or other similar governmental entity in Canada, Mexico,
China, Japan or any country or other sovereign entity in South America or
Europe, including, without limitation, any business engaged in (i) intermodal
marketing, (ii) flatbed specialized hauling services, (iii) less-than-truckload
common carrier services, (iv) drayage, consolidation, deconsolidation or
distribution services, (v) contract warehousing, freight handling or logistic
services, (vi) comprehensive transportation management programs or services to
third party customers, (vii) freight consolidation and deconsolidation, (viii)
traffic management, (ix) railroad signal project management, (x) freight
forwarding and related services (including freight brokerage and handling), (xi)
customs brokerage, (xii) transportation brokerage, and (xiii) freight
transportation (including "full container load" and "less than container load"
transportation services).
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Section 11. Inventions Assignment. During the Employment Period, the
Employee shall promptly disclose, grant and assign to the Company for its and
its Affiliates' sole use and benefit any and all inventions, improvements,
technical information and suggestions reasonably relating to the business of the
Company and its Affiliates (collectively, the "Inventions") that the Employee
may develop or acquire during the Employment Period (whether or not during usual
working hours), together with all Intellectual Property Rights associated with
or related to the Inventions. In connection with the previous sentence, (a) the
Employee, at the expense of the Company (including a reasonable payment (based
on the Employee's last per diem earnings) for the time involved if the Employee
is not then in the Company's employ or receiving payments from the Company
pursuant to Section 8(b)(ii)), shall execute and deliver promptly 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 Intellectual Property Rights associated with or related to
the Inventions in the Company and to enable it to obtain and maintain the entire
right and title thereto throughout the world, and (b) the Employee shall render
to the Company, at its expense (including a reasonable payment (based on the
Employee's last per diem earnings) for the time involved if the Employee is not
then in the Company's employ or receiving payments from the Company pursuant to
Section 8(b)(ii)), reasonable assistance as it may require in the prosecution of
applications for such Intellectual Property Rights, in the prosecution or
defense of interferences or infringements that may be declared involving any
Intellectual Property Rights, and in any litigation in which the Company or any
of its subsidiaries or other affiliates may be involved relating to the
Inventions or any such Intellectual Property Rights.
Section 12. Assistance in Litigation. At the request and expense of the
Company (including a reasonable payment (based on the Employee's last per diem
earnings) for the time involved if the Employee is not then in the Company's
employ or receiving payments from the Company pursuant to Section 8(b)(ii)), and
upon reasonable notice, the Employee, at all times during and after the
Employment Period, shall furnish such information and assistance to the Company
and its Affiliates as they may reasonably require in connection with any issue,
claim or litigation in which the Company or any of its Affiliates may be
involved. If such a request for assistance occurs after the expiration of the
Employment Period, then the Employee shall be required to render assistance to
the Company and its Affiliates only to the extent that the Employee can do so
without materially adversely affecting the Employee's other business obligations
to his employer and other third parties. The covenant contained in this Section
12 shall survive the termination or expiration of the Employment Period and any
termination of this Agreement.
Section 13. Entire Agreement; Amendment and Waiver. This Agreement contains
the entire agreement and understanding between the Employee and the Company and
any predecessor of the Company, and any of their respective Affiliates, with
respect to the subject matter hereof and supersedes any and all prior and
contemporaneous agreements and understandings between the Employee and the
Company or any predecessor of the Company, or any of their respective
Affiliates, regarding the subject matter hereof (including the Employment
Agreement dated as of December 22, 2000, and the Amended and Restated Employment
Agreement dated as of September 1, 2001 (together, the "Prior Agreements"),
between the Employee and Rail Van LLC, an Ohio limited liability company and
predecessor-in-interest to Pacer Global Logistics, Inc., a wholly-owned
subsidiary of the Company. Other than this Agreement, there are no other
agreements or understandings continuing in effect relating to the subject matter
hereof (except that
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the parties acknowledge the existence of the separate and independent provisions
contained in Section 7.9 of the Purchase Agreement). No waiver, amendment or
modification of any provision of this Agreement shall be effective unless in
writing and signed by the Employee and the Company. 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. In consideration of the Employee's continued employment with the Company
hereunder and the other payments and consideration inuring to the benefit of the
Employee hereunder, the Employee waives and releases the Company and its
Affiliates from any and all claims, demands, actions, causes of action, losses,
liabilities and obligations whatsoever, whether known or unknown, fixed or
contingent, matured or unmatured, arising prior to the date hereof, whether
under the Prior Agreements or otherwise in connection with or relating to the
Employee's employment with the Company or any of it Affiliates prior to the date
hereof, including any arising under federal, state and local labor, employment,
civil rights and anti-discrimination laws (including the Age Discrimination in
Employment Act, the Americans With Disabilities Act and Title VII of the Civil
Rights Act) and any other restrictions on the Company's and its subsidiaries'
rights with respect to the modification or termination, for whatever reason, of
the employment of its employees; provided, however, that the foregoing shall not
apply to, and shall not be deemed to release, any right or claim of the
Employee, whenever arising, to be indemnified by the Company or any of its
affiliates under and to the extent of the applicable terms and provisions of the
Company's or such affiliate's charter, certificate or articles of incorporation,
or by-laws.
Section 14. Notices.
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(a) All notices or other communications pursuant to this 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):
(i) if to the Company, to:
Pacer International, Inc.
One Concord Center
0000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with copy to:
Pacer International, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Legal Department
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(ii) if to the Employee, to him at his or her last known address
contained in the records of the Company.
(b) All such notices and other communications shall be deemed to have
been given and received (i) in the case of personal delivery, on the date of
such delivery, (ii) in the case of delivery by telecopy, on the date of such
delivery (if sent on a business day where sent, or if sent on other than a
business day where sent, on the next business day where sent after the date
sent), (iii) in the case of delivery by nationally-recognized, overnight
courier, on the next business day where sent following dispatch, and (iv) in the
case of mailing, on the third business day where sent next following such
mailing. In this Agreement, the term "business day" means, as to any location,
any day that is not a Saturday, a Sunday or a day on which banking institutions
in such location are authorized or required to be closed.
Section 15. Headings. The section headings in this Agreement are for
convenience only and shall not control or affect the meaning of any provision of
this Agreement.
Section 16. Severability. It is the desire and intent of the parties that
the provisions of this Agreement be enforced to the fullest extent permissible
under the law and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction 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 so
modified or restricted, then such provision shall, as to such jurisdiction, be
deemed to be excised from this Agreement; provided, however, that the legality,
binding effect and enforceability of the 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 provision in such jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 17. Remedies. The Employee acknowledges and understands that the
provisions of 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. The Employee further acknowledges that in
the event of a breach or any of the covenants contained in Section 9, Section
10, Section 11 or Section 12, the Company shall be entitled to either specific
performance or other immediate relief enjoining the same in any court or before
any judicial body having jurisdiction over such a claim, without the need to
post bond or other security or to show irreparable harm. All
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remedies hereunder are cumulative, are in addition to any other remedies
provided for by law and, to the extent permitted by law, may 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.
Section 18. Representation. The Employee hereby represents and warrants to
the Company that (i) the execution, delivery and performance of this Agreement
by the Employee do not breach, violate or cause a default under any agreement,
contract or instrument to which the Employee is a party or any judgment, order
or decree to which the Employee is subject, and (ii) the Employee is not a party
to or bound by any employment agreement, consulting agreement, non-compete
agreement, confidentiality agreement or similar agreement with any other Person,
, except for certain existing non-competition covenants from the Employee in
favor of the Company, which the Employee affirms are continuing and in full
force and effect and have been complied with in all respects.
Section 19. Benefits of Agreement; Assignment. The terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, permitted assigns, representatives,
heirs and estates, as applicable. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other party hereto, except
that the Company may assign this Agreement or its rights hereunder to any
Affiliate of the Company or to any Person succeeding to all or any substantial
portion of their respective businesses. Except as expressly provided in this
Agreement, this Agreement shall not confer any rights or remedies upon any
Person other than the parties hereto and their respective successors, permitted
assigns, representatives, heirs and estates, as applicable.
Section 20. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Ohio without
giving effect to any choice of law provision or rule (whether of the State of
Ohio or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of Ohio. The parties consent to disputes
being resolved exclusively in a court of competent jurisdiction located in the
State of Ohio.
Section 21. Mutual Waiver of Jury Trial. 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 TO THE
SUBJECT MATTER HEREOF.
Section 22. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts taken together shall be considered one and
the same agreement, effective when one or more counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. Any signed counterpart delivered by
facsimile shall be deemed for all purposes to constitute such party's good and
valid execution and delivery of this Agreement.
Section 23. Expenses; Taxes. Each party hereto shall bear his or its own
expenses incurred in connection with this Agreement (including legal, accounting
and any other third party fees,
11
costs and expenses incurred by such party). Subject to Section 8(c), if
applicable, all remuneration, compensation and other consideration payable by
the Company or any of its Affiliates hereunder to or for the benefit of the
Employee or his heirs, representatives, or estate shall be made and provided net
of any and all applicable withholding, F.I.C.A., employment and other similar
federal, state and local taxes and contributions required by law to be withheld
by the Company or any such Affiliate.
Section 24. Interpretation and Construction; Defined Terms.
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(a) The term "Agreement" means this Employment Agreement and any and
all schedules, annexes and exhibits that may be attached hereto, as the same may
from time to time be amended, modified, supplemented or restated in accordance
with the terms hereof. The use in this Agreement of the word "including" means
"including, without limitation." The words "herein," "hereof," "hereunder,"
"hereby," "hereto," "hereinafter," and other words of similar import refer to
this Agreement as a whole, and not to any particular article, section,
subsection, paragraph, subparagraph or clause contained in, or any schedule,
annex or exhibit that may be attached to, this Agreement. All references to
articles, sections, subsections, paragraphs, subparagraphs, clauses, schedules,
annexes and exhibits mean such provisions of this Agreement and the schedules,
annexes and exhibits that may be attached to this Agreement, except where
otherwise stated. The use herein of the masculine, feminine or neuter forms also
shall denote the other forms, as in each case the context may require. Where
specific language is used to clarify by example a general statement contained
herein, such specific language shall not be deemed to modify, limit or restrict
in any manner the construction of the general statement to which it relates. The
language used in this Agreement has been chosen by the parties to express their
mutual intent, and no rule of strict construction shall be applied against any
party. Unless otherwise provided herein, the measure of one month or year for
purposes of this Agreement shall be that date of the following month or year
corresponding to the starting date, except that, if no corresponding date
exists, the measure shall be the next day of the following month or year (e.g.,
one month following February 8 is March 8, and one month following March 31 is
May 1).
(b) The term "Affiliate" means, with respect to any Person, any other
Person that directly or indirectly through one or more intermediaries controls,
is controlled by or is under common control with such Person, where "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
(c) The term "Person" shall be construed as broadly as possible and
shall include an individual or natural person, a partnership (including a
limited liability partnership), a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, a business, and any other entity, including a governmental entity
such as a domestic or foreign government or political subdivision thereof,
whether on a federal, state, provincial or local level and whether legislative,
Employee, judicial in nature, including any agency, authority, board, bureau,
commission, court, department or other instrumentality thereof.
* * * * * *
12
IN WITNESS WHEREOF, the parties have executed and delivered this
Employment Agreement effective as of the date first written above.
THE COMPANY:
PACER INTERNATIONAL, INC.
By:_________________________________
Name:
Title:
THE EMPLOYEE:
____________________________________
Xxxxx X. Xxxxxxx
