EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of
November 1, 1995, is between AMERICOLD CORPORATION, an Oregon
corporation ("Employer" or "Americold"), and Xxxxxx X. Xxxxxxxxx
("Employee").
RECITALS
Employer is engaged in the public refrigerated warehouse
business. Employer desires to employ Employee on a full-time basis
as Chairman of the Board, President and Chief Executive Officer,
and Employee desires to accept the employment and to perform the
duties set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
agreements and conditions hereinafter set forth, it is agreed as
follows:
AGREEMENT
1. Employment. Employer agrees to employ Employee and
Employee agrees to continue employment upon the terms and
conditions hereinafter set forth. Employee represents and warrants
that he knows of no reason why he is not capable of performing his
obligations under this Agreement in accordance with its terms.
2. Term. Subject to the termination provisions in this
Agreement, the term of this Agreement will begin November 1, 1995
and will terminate on December 16, 1998. In their discretion and
subject to Section 7(e), the parties may agree to continue the
Agreement after December 16, 1998, in which case it shall be
extended for one year periods on the same terms as this Agreement,
until terminated as provided herein.
3. Duties. Employee will serve as Chairman of the
Board, President and Chief Executive Officer of Employer, with such
duties as are associated with this position, and those other duties
as may be assigned to him from time to time by the Board of
Directors of Employer. Employee agrees to use his best efforts to
promote the interests of Employer and to devote his entire working
time, attention and energies to performance of his duties under
this Agreement. Employee shall at all times faithfully and to the
best of his ability perform the duties that may be required of him
by Employer. During the term of this Agreement, Employee agrees
not to be engaged in any other business activity, whether or not
such business activity is pursued for gain, profit or other
pecuniary advantage. However, this Agreement shall not prevent
Employee from attending to his personal investment matters,
provided that such matters do not significantly affect the
performance of Employee's responsibilities under the Agreement or
violate the provisions of the parties' Covenant Not to Compete and
Consulting and Non-Disclosure Agreement (the "Covenant") executed
concurrently with this Agreement.
4. Base Compensation. Subject to Section 7 of this
Agreement, Employee shall receive no less than his present base
compensation of $25,000 per month, payable in accordance with
Employer's standard payroll procedures for management employees.
The base compensation shall be subject to adjustment on an annual
basis in accordance with Employer's normal compensation practices.
5. Management Incentive Plan. Employee shall be
eligible to participate in the Americold Management Incentive Plan
during his employment, and in any other senior management incentive
programs offered to management as approved by the Compensation
Committee of the Board of Directors. The actual size of any award
under, or the level of Employee's participation in, any such Plan
or program shall be determined in accordance with the terms of the
document(s) governing such Plan or program or, if so provided by
such document, by the person(s), committee or entity responsible
for the administration thereof.
6. Employee Benefits. Employer agrees to provide to
Employee all employee benefits, including insurance benefits,
vacation time and expense reimbursements, as are generally
available to executive officers of Employer, subject to the terms
and conditions of such plans as to eligibility to participate in
and to receive benefits thereunder. Subject to Section 7(f) of
this Agreement, in the event Employer requires Employee to relocate
during the term of this Agreement, Employer agrees to pay
Employee's reasonable relocation expenses, including reasonable and
customary closing expenses on a new home in the area to which
Employee is relocated and reasonable expenses of moving normal
household goods from the Portland, Oregon area upon submission of
evidence of such expenses in a form satisfactory to Employer.
7. Termination.
(a) For Cause. Employer may terminate Employee's
employment at any time for cause with immediate effect, upon
delivering written notice thereof to Employee. For purposes of
this Agreement, "for cause" shall include: (i) negligence, willful
misconduct or incompetence in the performance of Employee's duties;
(ii) embezzlement, theft, larceny, material fraud or other acts of
dishonesty (including the unauthorized disclosure of confidential
information); (iii) the continued failure of Employee to render
services in accordance with this Agreement; (iv) conviction of or
entrance of a plea of guilty or nolo contendere to a felony or
other crime that has a material adverse effect on Employee's
ability to carry out his duties under this Agreement or upon the
reputation of Employer; (v) conduct involving moral turpitude; or
(vi) material insubordination or repeated insubordination after
warning by Employer. Upon termination for cause, Employer's sole
and exclusive obligation will be to pay Employee his base
compensation earned through the date of termination, plus any
employee benefits earned through the date of termination in
accordance with the applicable plans. Employee shall not be
entitled to any compensation after the date of such termination,
except as provided in the Covenant.
(b) Without Cause. Employer may terminate
Employee's employment at any time without cause upon written
notice. Upon such termination without cause, Employer shall
continue to pay Employee his base compensation as provided in
Section 4 through December 16, 1998. In such event, Employer shall
also retain Employee as a consultant pursuant to the terms of the
Covenant, and shall pay Employee as a consultant a monthly payment
equal to Employee's last monthly salary for 24 months, payable on
the first day of each month beginning January 1, 1999. During such
24 month period and until the earlier of the date on which Employee
obtains other employment or December 16, 2006, Employer agrees to
provide to Employee all Americold medical, insurance, expense
reimbursement and other benefit plans as are generally available to
executive officers of Employer, subject to the terms and conditions
of such plans as to eligibility to participate in and to receive
benefits thereunder.
(c) Upon Death. In the event of Employee's death
during the term of this Agreement, Employer's sole and exclusive
obligation under this Agreement will be to pay Employee's widow, or
to his estate, if he is not survived by his wife, a monthly payment
equal to Employee's last monthly salary for 24 months after
Employee's death, plus any accrued salary and employee benefits
payable in respect of Employee in accordance with the applicable
plans.
(d) Upon Disability. This Agreement shall
terminate, at Employer's option, upon Employee's total disability.
Employee's total disability means his inability to perform his
duties under this Agreement by reason of illness or accident for a
period of six consecutive months. Upon termination by reason of
Employee's disability, Employer's sole and exclusive obligation
will be to pay Employee a monthly payment equal to Employee's last
monthly salary for 24 months after Employee's disability, plus any
employee benefits earned and payable in accordance with the
applicable plans.
(e) At Employee's Option. At any time after
December 16, 1998, this Agreement, as extended, shall terminate at
Employee's option upon six months' written notice. Upon such
termination, Employer shall pay Employee as a consultant a monthly
payment equal to Employee's last monthly salary for 24 months after
termination of employment, payable on the first day of each month.
During such 24 month period and until the earlier of the date on
which Employee obtains other employment or December 16, 2006,
Employer agrees to provide to Employee all Americold medical,
insurance, expense reimbursement and other benefit plans as are
generally available to executive officers of Employer, subject to
the terms and conditions of such plans as to eligibility to
participate in and to receive benefits thereunder.
(f) By Employee For Good Reason. Employee may
terminate this Agreement for "good reason" at any time upon giving
30 days' advance written notice to Employer. If Employee
voluntarily terminates employment with Employer for "good reason,"
Employer shall be deemed to have terminated Employee's employment
without cause under paragraph 7(b) above. "Good reason" shall mean
the occurrence of any one or more of the following:
(i) A material adverse change in the nature or
scope of the Employee's title, responsibilities, authorities
or duties from those applicable as of the date of this
Agreement, whether or not in connection with a "Change of
Control";
(ii) A change in the location of Employee's
employment by Employer by more than 30 miles, if that change
occurs as a result of, or in connection with, a "Change in
Control" of Employer. For purposes of this Agreement, the
phrase "Change in Control" means any transaction in which:
(A) any "person," including a "group" as
determined in accordance with Section 13(d)(3) of the
Securities Exchange Act of 1934 (the "Exchange Act"), but
excluding any subsidiary of Employer or any employee
benefit plan maintained by Employer or any such
subsidiary, is or becomes the beneficial owner, directly
or indirectly, of securities of Employer representing
more than 50 percent of the combined voting power of
Employer's then outstanding securities;
(B) any merger or other business combination,
sale of assets or contested election, or any combination
of the foregoing transactions occurs, regardless of
whether Americold is the surviving entity, unless the
only parties to such merger are Americold and one or more
of its direct or indirect majority-owned subsidiaries or
any one or more corporations which owns, directly or
indirectly, a majority interest in Americold;
(C) a tender offer or exchange offer is made
and consummated for the ownership of securities of
Employer representing more than 50 percent of the
combined voting power of Employer's then outstanding
voting securities; or
(D) Employer transfers substantially all of its
assets to another corporation which is not a wholly-owned
subsidiary of Employer;
(iii) A material diminution in the aggregate value
of the employee benefits and perquisites available to Employee
as compared to the aggregate value of the employee benefits
and perquisites to which he was entitled as of the date of
this Agreement; or
(iv) A failure by Employer to comply with any
material provision of this Agreement which has not been cured
within 30 days after notice of such noncompliance has been
given by Employee to Employer.
8. Options. Employer and Employee will amend
Employee's Stock Option Agreement dated June 26, 1990 to provide
that the options granted thereunder shall be exercisable during
such time Employee is employed by Employer and for five years
following termination of his employment for any reason other than
as set forth in Section 7(a).
9. Assignment. This Agreement is a personal contract
and, except as specifically set forth herein, the rights and
interests of Employee herein may not be sold, transferred or
assigned. The rights and obligations of Employer shall be binding
upon and run in favor of the successors and assigns of Employer.
In the event of any attempted assignment or transfer of rights
hereunder contrary to the provisions hereof, Employer shall have no
further liability for payments hereunder.
10. Waiver. The waiver by Employer of the breach of any
provision of this Agreement by Employee shall not operate or be
construed as a waiver of any subsequent breach by Employee.
11. Modification. No amendment, modification or
discharge of this Agreement shall be valid unless it is in writing
and duly executed by the parties.
12. Construction. This Agreement shall be construed in
accordance with and governed by the laws of the state of Oregon.
13. Entire Agreement. Except as provided in the
Covenant of this same date, this is a fully integrated agreement
which contains the entire agreement of the parties and supersedes
any and all prior agreements and understandings between the
parties. There are no promises or representations made on behalf
of Employer to induce Employee to enter into this Agreement which
are not set forth herein.
14. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be given in
writing and shall be sufficient if personally delivered or mailed,
postage prepaid by same-day or overnight mail as follows:
If to Employer: Chairman of the Compensation
Committee
Americold Corporation
c/x Xxxxx & Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
With a copy to: Xxxxx X. Xxxxx
Tonkon, Xxxx, Xxxxx,
Marmaduke & Booth
1600 Pioneer Tower
000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
If to Employee: Xxxxxx X. Xxxxxxxxx
Americold Corporation
0000 XX Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
15. Severability. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or
enforceability of any other provision.
IN WITNESS WHEREOF, this Agreement has been signed by
Employer and Employee.
EMPLOYER
AMERICOLD CORPORATION
By:
Chairman of the Compensation
Committee of the Board of
Directors
EMPLOYEE
4787-294\0107916.Wp Xxxxxx X. Xxxxxxxxx