Execution Copy CHICAGO/#2984622.14 EMPLOYMENT AGREEMENT This Employment Agreement (the “Agreement”) is entered into as of October 27, 2017 (the “Effective Date”) between GATX Corporation, a New York corporation (the “Company”), and James F. Earl (the...
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Execution Copy
CHICAGO/#2984622.14
EMPLOYMENT AGREEMENT
This Employment Agreement (the “Agreement”) is entered into as of October 27, 2017 (the
“Effective Date”) between GATX Corporation, a New York corporation (the “Company”), and Xxxxx X.
Xxxx (the “Executive”).
WHEREAS, the Company desires to employ the Executive, and the Executive desires to be
employed by the Company, for a term of employment commencing on the Effective Date and continuing
through 5:00 PM Central Time on February 28, 2018 (the “End Date”), upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein
and for other good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties to this Agreement agree as follows:
1. Term. The Company will employ the Executive for the period from the Effective Date through the
End Date, unless employment is earlier terminated per Section 5 below (the period of employment,
the “Term” and the last day of the Term, the “Separation Date”).
2. Responsibilities.
a. During the Term, the Executive will have the title Executive Vice President and
President, Rail International and will report to the Chief Executive Officer of the
Company (the “CEO”). In such position, the Executive will have such duties,
authority and responsibility as are consistent with the Executive’s position. The
Executive will devote his full time and attention to the business and affairs of the
Company and will perform his obligations and responsibilities diligently, applying
the highest degrees of professionalism, integrity and management to his obligations
and responsibilities. The Executive will, if so required by the CEO, serve as an
officer, director, or manager of any of the Company’s subsidiaries or affiliates without
additional compensation.
b. The Executive: (i) may serve as an officer or director of, or otherwise participate in,
solely educational, welfare, social, religious and civic organizations; (ii) may be a
passive owner of less than 3% of any class of stock or interest of a corporation,
partnership or limited liability entity which class of stock or interest is publicly traded,
so long as the Executive has no active participation in the business of such entity; and
(iii) with the prior written consent of the CEO, may serve on the board of directors of,
and provide consulting services to, other businesses; in each case, so long as such
activities do not materially interfere with the Executive’s duties, responsibilities or
functions to the Company under this Agreement. The Company acknowledges and
provides prior written consent to the Executive’s membership on the board of
directors of Harsco Corporation.
3. Salary and Benefits.
a. Base Salary. During the Term, the Company will pay to the Executive a base salary
at the same rate as in place on the Effective Date (the “Base Salary”), payable in
accordance with the Company’s payroll policy.
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b. Employee Benefits. During the Term, the Executive will be entitled to participate in
the Company’s employee benefit plans generally available to senior employees of the
Company, in accordance with the terms of such plans. Nothing in this Agreement
will require the Company to establish, maintain or continue any of the benefits already
in existence or hereafter adopted for senior employees of the Company, and nothing
in this Agreement will restrict the right of the Company to amend, modify or terminate
such programs.
c. Vacation Time. During the Term, the Executive will accrue vacation time, in
accordance with applicable Company policy.
d. Expense Reimbursement. In accordance with Company policies and procedures, the
Company will reimburse the Executive for all proper expenses incurred by the
Executive in the performance of his duties during the Term.
x. Xxxxxxxxx Benefits Under the CoC Agreement. The Executive and the Company have
entered into an Amended and Restated Agreement for Employment Following a
Change of Control, effective January 1, 2009 (the “CoC Agreement”). If: (x) a
Change of Control (as defined in the CoC Agreement) occurs on or prior to the
Separation Date, and (y) the circumstances around the termination of the Executive's
employment are such that Executive becomes eligible for payments and benefits
pursuant to Section 6(a) of the CoC Agreement, then the provisions of Section 6(a) of
the CoC Agreement regarding the Executive's eligibility to receive certain severance
payments and benefits shall govern and the terms of Section 6.b. of this Agreement
shall have no force or effect. If a Change of Control (as defined in the CoC
Agreement) has not occurred on or prior to the Separation Date (whether the
Separation Date is the End Date or an earlier date), then, the terms of this Agreement
shall govern and the Executive hereby knowingly and intentionally waives any claim
for payments or benefits under the CoC Agreement.
4. Incentive Compensation.
a. COIP. During the Term, the Executive will continue to participate in the Company’s
Corporate Officer Incentive Program (the “COIP”) per the terms of the COIP as in
place from time to time. The COIP amount earned for 2017 shall be paid when 2017
COIP payments are generally made, which is anticipated to be February 2018. Any
pro rata COIP earned for 2018 shall be paid when 2018 COIP payments are generally
made, which is anticipated to be February 2019.
b. Outstanding Equity Awards.
i. Any award held by the Executive as of the Effective Date per an Equity-Based
Award Agreement (as defined below) shall continue to vest during the Term per
the terms of the applicable Equity-Based Award Agreement.
ii. “Equity-Based Award Agreement” means each of the Executive’s award
agreements under the GATX Corporation 2012 Incentive Award Plan (the “Stock
Plan”), including, but not limited to, any Performance Share Agreement and any
Option Agreement.
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5. Termination.
a. End Date. Unless earlier terminated as provided herein, the Term will terminate on
the End Date. Such termination on the End Date shall be deemed: (1) a termination
of employment by the Company “without Cause” for purposes of this Agreement and
any of the Company’s compensation and benefit plans (including each outstanding
Equity-Based Award Agreement) or (2) a “Retirement” with a “Retirement Date” of
March 1, 2018 for purposes of any of the Company’s compensation and benefit plans
(including each outstanding Equity-Based Award Agreement), if such designation
results in a greater benefit to Executive with respect to any such compensation or
benefit plan.
b. Death or Disability. The Term will terminate immediately upon the death or
Disability of the Executive. In such event, the Company will pay the Executive (or
his Beneficiary (per Section 12.b. below, as applicable) all accrued but unpaid Base
Salary and benefits as of the Separation Date. “Disability” means the Executive
qualifies for disability income benefits under the GATX Long Term Disability
Income Plan.
c. By the Executive. The Term may be terminated by the Executive for any reason upon
thirty (30) days’ advance written notice to the Company. Any such termination shall
be construed as a voluntary termination of employment for purposes of this
Agreement and the Company’s compensation and benefit plans.
d. For Cause. The Company may terminate the Term for Cause, effective immediately
by written notice of termination given to the Executive setting forth in good faith the
basis for such termination.
i. For the purposes of this Agreement, “Cause” shall mean: (x) the willful and
continued failure of the Executive to perform substantially the Executive’s duties
with the Company or one of its affiliates (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the CEO which specifically identifies
the manner in which the CEO believes in good faith that the Executive has not
substantially performed the Executive’s duties; or (y) the engaging by the
Executive in illegal conduct or gross misconduct which is materially and
demonstrably injurious to the Company.
ii. For purposes of Section 5.d.i. above, no act or failure to act, on the part of the
Executive, shall be considered “willful” unless it is done, or omitted to be done,
by the Executive in bad faith or without reasonable belief that the Executive’s
action or omission was in the best interests of the Company. Any act, or failure to
act, based upon: (x) authority given pursuant to a resolution duly adopted by the
Board of Directors of the Company, or (y) upon the written instructions or written
concurrence of the CEO, or (z) based upon the written advice of counsel for the
Company, shall be conclusively presumed to be done, or omitted to be done, by
the Executive in good faith and in the best interests of the Company.
e. Effecting Termination. As of the Separation Date, the Executive agrees that the
Secretary of the Company may, as an irrevocable proxy and in the Executive’s name
and stead, execute all documents and things which the Company deems necessary and
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desirable to effect the Executive’s resignation as an officer of the Company and its
subsidiaries and affiliates. During any applicable statute of limitations period, the
Company agrees to continue and maintain a directors and officers liability insurance
policy covering the Executive to the applicable extent as follows: (1) to the same
extent the Company provides such coverage for its executive officers in active service,
or (2) in the event the Company ceases to have any executive officer in active service,
then to the same extent the Company provides such coverage for any former executive
officer whose period of active service with the Company overlaps with the
Executive’s period of active service with the Company.
f. Copy of Restrictive Covenants. The Executive agrees that, prior to the
commencement of any new employment, the Executive will furnish the prospective
new employer with a copy of the text of any restrictive covenant obligation the
Executive has to the Company (the “Restrictive Covenant Text”). The Executive
also agrees that the Company may advise any prospective new employer of the
Executive of the existence and terms of such restrictive covenants and furnish the
prospective new employer with a copy of the Restrictive Covenant Text.
6. Payments and Benefits Upon Termination.
a. Upon any Separation Date per any of Section 5.a. – 5.d. above, the Executive or his
Beneficiary (per Section 12.b. below) will be entitled to receive the following
payments and benefits (collectively, the “Accrued Amounts”):
i. Any accrued but unpaid Base Salary and accrued but unused vacation, which will
be paid no later than the payday no less than seven (7) days after the Separation
Date, in accordance with the Company’s customary payroll practices, or such
earlier date as may be required by law;
ii. Reimbursement for unreimbursed business expenses properly incurred by the
Executive, which will be subject to and paid in accordance with the Company’s
expense reimbursement policy; and
iii. Any employee benefits (including equity compensation) to which the Executive
may be entitled under the plans or policies of the Company as of the Separation
Date, including, but not limited to, eligibility for the Company’s pre-65 retiree
medical plan and treatment under the COIP, in each case per the terms of the plan
or policy.
b. Upon termination of the Term upon the End Date per Section 5.a. above, and
contingent upon the Executive (i) continuing to abide by the provisions of Section 8
herein, and (ii) signing and returning a release of claims (the “Release”) (such Release
to be provided to the Executive on or about the termination date, in a form
substantially similar to Attachment A hereto), within the period of time set forth
therein (and without revoking such Release), the Executive shall receive the following
payments and benefits (the “Separation Payments”) in addition to the Accrued
Amounts: (a) a total of $1,402,300 paid on the following schedule: (y) by the sixtieth
(60th) day after the End Date, payment of $621,300 and a $36,000 contribution to the
Executive’s Health Reimbursement Account; and (z) on the one year anniversary of
the End Date, payment of $745,000; (b) in February 2019, when COIP bonuses are
generally paid for 2018, a payment equal to the spread between $434,910 and the pro
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rata COIP actually earned by the Executive for 2018; and (c) provided the Executive
elects coverage under the Company’s pre-65 retiree health plan, a subsidy for the first
12 months of such coverage totaling $14,000, which subsidy will be provided in 12
equal monthly increments.
7. Acknowledgments. The Executive understands and agrees that he would not otherwise be eligible
for, or entitled to, any of the Separation Payments if he did not enter into this Agreement. Further,
by signing this Agreement, the Executive agrees that he is not entitled to any additional payments
and/or benefits that are not specifically listed in this Agreement, except for those benefits in which
he has a vested right pursuant to the terms of the applicable Company plans or policies, or per
applicable law.
8. Restrictive Covenants; Trade Secrets and Confidential Information; Cooperation.
a. Non-Competition. During the two (2)-year period following the Separation Date, the
Executive may not provide services in any capacity (i.e., as an employee, consultant,
independent contractor, board member, etc., and regardless of whether paid or unpaid)
to Trinity Industries, Inc. (“Trinity”), any subsidiary of Trinity, or any successor of
Trinity or a subsidiary of Trinity.
b. Non-Solicitation. During the two (2)-year period following the Separation Date, the
Executive, as well any agent, representative or affiliate of the Executive, will not,
directly or indirectly: (i) solicit for employment or a consulting relationship,
(ii) otherwise seek employment or a consulting relationship from, or (iii) induce to
leave the Company’s employ or service, any person who currently is an officer,
director or employee of, or a consultant to, the Company, or who had any such status
during the six (6)-month period preceding the then-current date; provided that this
Section 8.b. shall not be violated by general advertising or solicitation not specifically
targeted at the Company.
c. Confidentiality. The Executive acknowledges and agrees that the Company’s
business depends to a significant degree upon the possession of information which is
not generally known to others, and that the profitability of the business of the
Company requires that this information remain proprietary to the Company. The
Executive will not, except as required in the course of employment by the Company,
disclose or use during or subsequent to the course of employment, any trade secrets
or confidential or proprietary information relating to the business of the Company of
which the Executive becomes aware by reason of being employed by the Company
or to which the Executive gains access during his employment by the Company and
which has not been publicly disclosed (other than by the Executive in breach of this
provision). Such information includes client and customer lists, data, records,
computer programs, manuals, processes, methods and intangible rights which are
either developed by the Executive during the course of employment or to which the
Executive has access. All records and equipment and other materials relating in any
way to any confidential information relating to clients or to the business of the
Company will be and remain the sole property of the Company during and after the
end of employment. Notwithstanding the foregoing, the Executive may comply with
legal process or governmental inquiry after, to the extent legally permitted, giving the
Company written notice of record thereof. Upon termination of employment, the
Executive will promptly return to the Company all materials and all copies or tangible
embodiments of materials involving any confidential information in the Executive’s
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possession or control. Provided, however, Executive may retain his address book to
the extent it contains contact information and the Company shall cooperate with the
Executive on the transfer of his cell phone number to Executive, if applicable.
d. Agreement to be Available in Future Proceedings. During the Term and thereafter,
the Executive agrees, subject to the advice of legal counsel, to voluntarily make
himself reasonably available to the Company and its legal counsel, at the Company’s
request, without the necessity of obtaining a subpoena or court order, in the
Company’s investigation, preparation, prosecution and/or defense of any actual or
potential legal proceeding, regulatory action, or internal matter. Subject to the advice
of legal counsel, the Executive agrees to provide any information reasonably within
the Executive’s recollection. The Executive will receive a payment of $500 per hour
for cooperation services provided after the Term that are either: (i) in excess of 25
hours per month, or (ii) in excess of 100 hours on a total cumulative basis. Payment
or reimbursement of the Executive’s reasonable expenses incurred in connection with
activity under this subsection d. will be made by the Company promptly and in no
event later than December 31 of the year following the year in which such expenses
were incurred.
e. Confidentiality of this Agreement. Except as required by law and as provided in
Section 13.b., the Executive will not disclose the existence or terms of this Agreement
to anyone except his accountants, attorneys, and spouse, and shall ensure that each
such person complies with this confidentiality provision.
9. Right to Injunctive Relief. The Executive acknowledges that the Executive’s services to the
Company are of a unique character which gives them a special value to the Company, the loss of
which cannot reasonably or adequately be compensated in damages in an action at law, and that a
breach of Section 8 of this Agreement or any restrictive covenant referenced herein will result in
irreparable and continuing harm to the Company and that therefore, in addition to any other remedy
which the Company may have at law or in equity, the Company will be entitled to seek injunctive
relief in court (without posting of a bond) for a breach of this Agreement by the Executive. For
any matter not required to be submitted to arbitration, the parties each hereby consent to exclusive
jurisdiction and venue for all purposes in the state courts located in Xxxx County, Illinois, or the
United States District Court for the Northern District of Illinois.
10. Right to Review Public Statements. To the extent the Company releases any public statements
related to the Executive or his employment, including as required by securities laws, the Executive
will be provided with a reasonable time to review such statements and the ability to provide
reasonable comment.
11. Release of Claims.
a. Release. The Executive, and anyone claiming through him or on his behalf, hereby
waives and releases the Company with respect to any and all claims, whether currently
known or unknown, that the Executive now has or have ever had against the Company
arising from or related to any act, omission, or thing occurring or existing at any time
prior to or on the date on which the Executive signs this Agreement. Without limiting
the generality of the foregoing, the claims waived and released by the Executive
hereunder include, but are not limited to:
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i. All claims arising out of or related in any way to his employment, compensation,
other terms and conditions of employment, or termination from employment,
including, without limitation, claims arising out of any employment agreements,
severance plans or policies or any other employee benefit plans;
ii. All claims that were or could have been asserted by the Executive or on his behalf:
(A) in any federal, state, or local court, commission, or agency; or (B) under any
common law theory (including without limitation all claims for breach of contract
(oral, written or implied), wrongful termination, defamation, invasion of privacy,
infliction of emotional distress, tortious interference, fraud, estoppel, unjust
enrichment, and any other contract, tort or other common law claim of any kind);
and
iii. All claims that were or could have been asserted by the Executive or on his behalf
under: (A) the Age Discrimination in Employment Act (the “ADEA”) and the
Older Worker Benefit Protection Act (the “OWBPA”); and (B) any other federal,
state, local, employment, services or other law, regulation, ordinance,
constitutional provision, executive order or other source of law, including without
limitation under any of the following laws, as amended from time to time:
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981 & 1981a, the
Americans with Disabilities Act, the Equal Pay Act, Employee Retirement Income
Security Act, the Xxxxx Xxxxxxxxx Fair Pay Act of 2009, the Family and Medical
Leave Act, the Worker Adjustment and Retraining Notification Act and all
applicable state, county or other local fair employment laws.
b. Exceptions. Notwithstanding the foregoing, the releases and waivers in this
Agreement shall not apply to any claim: (A) for unemployment or workers’
compensation, (B) for vested benefits under any employee benefit plan or vested
awards under the Stock Plan, (C) that by law is non-waivable, (D) for payments or
benefits under this Agreement, (E) as a stockholder of the Company, or (F) for
indemnification under applicable law and for coverage as an insured under directors
and officers liability insurance.
c. No Further Obligations. In the event of any further proceedings based upon any
released matter, the Company shall have no further monetary or other obligation of
any kind to the Executive, and the Executive hereby waives any such monetary or
other recovery.
d. Specific Rights Under OWBPA. The Executive understands and agrees that: (A) this
is the full and final release of all claims against the Company through the date he signs
this Agreement; (B) the Executive knowingly and voluntarily releases claims
hereunder for valuable consideration; (C) the Executive hereby is and has been
advised of his right to have his attorney review this Agreement before signing it;
(D) the Executive has twenty-one (21) days to consider whether to sign this
Agreement; and (E) the Executive may, at his sole option, revoke this Agreement
upon written notice within seven (7) days after signing it. This Agreement will not
become effective until this seven (7) day period has expired and will be void if he
revokes it within such period. Although the Executive is releasing claims that he may
have under the ADEA and the OWBPA, he understands that he may challenge the
knowing and voluntary nature of this Agreement under the OWBPA and the ADEA
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before a court, the EEOC, the NLRB, or any other federal state or local agency
charged with the enforcement of any employment laws.
12. Successors and Assigns; Beneficiary.
a. The rights and obligations under this Agreement will inure to the benefit of and be
binding upon the Company and its successors and assigns. This Agreement will not
be assignable by the Executive, but in the event of the Executive’s death it will be
binding upon and inure to the Executive’s Beneficiary.
b. The Executive’s “Beneficiary” will be the beneficiary or beneficiaries named by the
Executive to receive any compensation or benefits due under the Agreement
following the Executive’s death, with such designation to be done in a written
instrument that must be received by the Company prior to the Executive’s death. In
the event there is no such named beneficiary, or no surviving named beneficiary, such
compensation and benefits shall be paid to the Executive’s surviving spouse, or, if
none, to the Executive’s estate.
13. Miscellaneous.
a. Lawyer Fees. Upon presentation of an invoice approved by the Executive, with such
presentation to be no later than 45 days after the Effective Date, the Company shall
pay Executive’s lawyer fees incurred in connection with the negotiation and drafting
of this Agreement, subject to a cap of $20,000. Such payment will be made by the
Company promptly and in no event later than December 31 of the year following the
year in which such fees were incurred.
b. Permitted Actions. Nothing in this Agreement is intended to limit in any way the
Executive’s right or ability to file a charge or claim of discrimination with the U.S.
Equal Employment Opportunity Commission (the “EEOC”), the National Labor
Relations Board (the “NLRB”), or other federal, state or local agencies. These
agencies have the authority to carry out their statutory duties by investigating a charge,
issuing a determination, filing a lawsuit in federal or state court in their own name, or
taking any other action authorized under these statutes. The Executive retains the
right to participate in such an action and to recover any appropriate relief. The
Executive retains the right to communicate with the EEOC, NLRB and other federal,
state or local agencies, and such communication can be initiated by the Executive or
in response to the government and is not limited by any non-disparagement,
cooperation and confidentiality obligation under this Agreement.
c. Payroll Taxes and Withholding. All compensation payments made under this
Agreement will be subject to required payroll taxes and withholding.
d. Compliance with Company Policies. Payments made under this Agreement shall be
subject to any generally-applicable Company policy, or action, related to recoupment
(claw-back) or other modification to executive compensation, (i) as in place from
time-to-time during the period beginning on the Effective Date and ending on the
Separation Date, and (ii) as in place after the Separation Date so long as required by
applicable law, regulation, or stock exchange listing rule.
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e. Integration; Amendment. Except as is otherwise provided herein, this Agreement
contains all of the terms and conditions agreed upon by the parties relating to the
subject matter of this Agreement and supersedes all prior and contemporaneous
agreements, negotiations, correspondence, undertakings and communications of the
parties, whether oral or written, respecting the subject matter of this Agreement. This
Agreement may not be amended, altered or modified without the prior written consent
of both parties and such instrument must acknowledge that it is an amendment or
modification of this Agreement.
f. Counterparts. This Agreement may be executed in counterparts, each of which will
be deemed an original but all of which together will constitute one and the same
instrument. Counterpart signature pages to this Agreement transmitted by facsimile
transmission, by electronic mail in portable document format (.pdf), or by any other
electronic means intended to preserve the original graphic and pictorial appearance of
a document, will have the same effect as physical delivery of the paper document
bearing an original signature.
g. Waiver. Waiver of any term or condition of this Agreement by any party will not be
construed as a waiver of a subsequent breach or failure of the same term or condition,
or a waiver of any other term or condition of this Agreement. Any waiver must be in
writing.
h. Severability. Whenever possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held by a court of competent jurisdiction to be prohibited or
unenforceable for any reason, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this Agreement.
i. Captions. The captions in this Agreement are not part of its provisions, are merely
for reference and have no force or effect. If any caption is inconsistent with any
provision of this Agreement, such provision will govern.
j. Governing Law; Arbitration. The validity, interpretation, construction, enforcement
and remedies of, or relating to, this Agreement, and the rights and obligations of the
parties hereunder, will be governed by and construed in accordance with the
substantive laws of the State of Illinois, without regard to the conflict of law
principles, rules or statutes of any jurisdiction. Subject to Section 9 above, any action
or proceeding to enforce, or arising out of, this Agreement will be submitted to
arbitration via the American Arbitration Association, employment rules, and will be
heard by a single arbitrator sitting in Chicago, Illinois. The Company shall reimburse
the Executive for the reasonable travel and hotel expenses incurred in connection with
traveling to, and staying in, Chicago, Illinois for the purpose of attending an
arbitration proceeding in Chicago, Illinois. The reimbursement will be limited to
expenses for the Executive and for one lawyer for the Executive.
k. Notice. All notices given hereunder will be in writing and will be sent by registered
or certified mail, or nationally recognized overnight delivery service, or delivered by
hand, and, if intended for the Company, will be addressed to it or delivered to it at its
principal office for the attention of the Chief Human Resources Officer of the
Company. If intended for the Executive, notices will be delivered personally to the
Executive’s then current residence address as shown on the Company’s records, or to
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such other address as the Executive directs in a notice to the Company. All notices
will be deemed to be given on the date received at the address of the addressee.
l. Code Section 409A. The parties intend that this Agreement and the benefits provided
hereunder be interpreted and construed to comply with Section 409A of the Internal
Revenue Code of 1986, as amended, and all regulatory and interpretative guidance
issued thereunder (“Code Section 409A”) to the extent applicable thereto. The time
and form of payment of incentive compensation, disability benefits, severance
payments, expense reimbursements and payments of in-kind benefits described herein
will be made in accordance with the applicable sections of this Agreement, provided
that with respect to termination of employment for reasons other than death, the
payment at such time can be characterized as a “short-term deferral” for purposes of
Code Section 409A or as otherwise exempt from the provisions of Code
Section 409A, or if any portion of the payment cannot be so characterized, and the
Executive is a “specified employee” under Code Section 409A, such portion of the
payment will be delayed until the earlier to occur of the Executive’s death or the date
that is six months and one day following the Executive’s termination of employment
(the “Delay Period”). Upon the expiration of the Delay Period, all payments and
benefits delayed pursuant to this section will be paid or reimbursed to the Executive
in a lump sum, and any remaining payments due under this Agreement will be payable
at the same time and in the same form as such amounts would have been paid. Further,
if the Executive is a “specified employee” and if any equity-based awards granted to
the Executive by the Company, pursuant to this Agreement or otherwise, continue to
vest upon the Executive’s termination of employment, and are deemed a “deferral of
compensation” (as such term is described under Code Section 409A), the equity-
based awards will not be settled or released until the expiration of the Delay Period.
For purposes of applying the provisions of Code Section 409A, each separately
identifiable amount to which the Executive is entitled will be treated as a separate
payment. The time or schedule of any payment or amount scheduled to be paid
pursuant to the terms of this Agreement, including but not limited to any restricted
stock unit or other equity-based award, payment or amount that provides for the
“deferral of compensation” (as such term is described under Code Section 409A), may
not be accelerated except as otherwise permitted under Code Section 409A and the
guidance and Treasury regulations issued thereunder.
For purposes of this Agreement, the terms “retirement,” “termination of
employment,” “terminated,” “termination,” “this Agreement will be terminated” and
variations thereof, as used in this Agreement, are intended to mean a termination of
employment that constitutes a “separation from service” under Code Section 409A.
If the sixty (60)-day period following a “separation from service” begins in one
calendar year and ends in a second calendar year (a “Crossover 60-Day Period”) and
if there are payments due the Executive that are subject to Code Section 409A (and
not exempt from Code Section 409A) that are: (i) conditioned on the Executive
signing and not revoking a release of claims and (ii) otherwise due to be paid during
the portion of the Crossover 60-Day Period that falls within the first year, then such
payments will be delayed and paid in a lump sum during the portion of the Crossover
60-Day Period that falls within the second year.
Although the Company intends to administer the Agreement so that it will comply
with the requirements of Code Section 409A, the Company does not represent or
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warrant that the Agreement will comply with Code Section 409A or any other
provision of federal, state, local, or non-United States law. Provided that the
Company administers this Agreement in a manner consistent with the terms of this
Agreement, neither the Company, its subsidiaries, nor their respective directors,
officers, employees or advisers will be liable to the Executive (or any other individual
claiming a benefit through the Executive) for any tax, interest, or penalties the
Executive may owe as a result of compensation paid under the Agreement, and the
Company and its subsidiaries will have no obligation to indemnify or otherwise
protect the Executive from the obligation to pay any taxes pursuant to Code
Section 409A.
Payment or reimbursement of the Executive’s expenses will be made promptly and in
no event later than December 31 of the year following the year in which such expenses
were incurred, and the amount of such expenses eligible for payment or
reimbursement, or in-kind benefits provided, in any year will not affect the amount of
such expenses eligible for payment or reimbursement, or in-kind benefits to be
provided, in any other year. Additionally, any right to expense reimbursement or in-
kind benefits will not be subject to liquidation or exchange for another benefit.
The provisions of this Agreement will be construed in a manner in favor of complying
with any applicable requirements of Code Section 409A to avoid taxation under Code
Section 409A. If any compensation or benefits provided by this Agreement result in
the application of Code Section 409A, the Company will modify this Agreement in
the least restrictive manner necessary in order to comply with the provisions of Code
Section 409A, other applicable provisions of the Code and/or any rules, regulations
or other regulatory guidance issued under such statutory provisions and, in each case,
without material diminution in the value of the payments or benefits to the Executive.
Signature page follows.
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Signature Page to Employment Agreement
between GATX Corporation and Xxxxx X. Xxxx
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
GATX CORPORATION
By: /s/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx
Senior Vice President Human Resources
I have read the above Agreement and understand and agree to be bound by its terms.
/s/ XXXXX X. XXXX
XXXXX X. XXXX
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Exhibit A – Page 1
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EXHIBIT A
GENERAL RELEASE OF CLAIMS
This General Release of Claims Agreement (this “Release”) is entered into between GATX
Corporation, a New York corporation (the “Company”), and Xxxxx X. Xxxx (the “Executive”).
WHEREAS, the Company and the Executive previously entered into an Employment Agreement
executed by the Executive on ______, 2017 (the “Agreement”); and
WHEREAS, Section 6.b. of the Agreement provides that certain payments and benefits are to be
paid or provided to the Executive in exchange for, and contingent upon, among other things, the Executive’s
execution (and non-revocation) of this Release as set forth in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the
Agreement and herein and for other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereby agree as follows:
1. Release. The Executive, and anyone claiming through him or on his behalf, hereby waives and
releases the Released Parties (as defined below) with respect to any and all claims, whether
currently known or unknown, that the Executive now has or ever has had against a Released Party
arising from or related to any act, omission, or thing occurring or existing at any time prior to or on
the date on which the Executive signs this Release. “Released Parties” include (A) the Company
and its past, present, and future parents, divisions, subsidiaries, partnerships, affiliates, and other
related entities, (B) each of the foregoing entities’ and persons’ past, present, and future owners,
trustees, fiduciaries, administrators, shareholders, directors, officers, partners, members, associates,
agents, executives, employees, and attorneys, and (C) the predecessors, successors and assigns of
each of the foregoing persons and entities. Without limiting the generality of the foregoing, the
claims waived and released by the Executive hereunder include, but are not limited to:
a. All claims arising out of or related in any way to his employment, compensation, other
terms and conditions of employment, or termination from employment, including, without
limitation, claims arising out of any employment agreements, change in control
agreements, bonus plans, incentive plans or awards, severance plans or policies, stock plans
or policies, relocation letters or any other employee benefit plans; and
b. All claims that were or could have been asserted by the Executive or on his behalf: (i) in
any federal, state, or local court, commission, or agency; or (ii) under any common law
theory (including without limitation all claims for breach of contract (oral, written or
implied), wrongful termination, defamation, invasion of privacy, infliction of emotional
distress, tortious interference, fraud, estoppel, unjust enrichment, and any other contract,
tort or other common law claim of any kind); and
c. All claims that were or could have been asserted by the Executive or on his behalf under:
(i) the Age Discrimination in Employment Act (the “ADEA”) and the Older Worker
Benefit Protection Act (the “OWBPA”); and (ii) any other federal, state, local,
employment, services or other law, regulation, ordinance, constitutional provision,
executive order or other source of law, including without limitation under any of the
following laws, as amended from time to time: Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 1981 & 1981a, the Americans with Disabilities Act, the Equal Pay Act,
Employee Retirement Income Security Act, the Xxxxx Xxxxxxxxx Fair Pay Act of 2009, the
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Family and Medical Leave Act, the Worker Adjustment and Retraining Notification Act
and all applicable state, county or other local fair employment laws.
2. Exceptions. Notwithstanding the foregoing, the releases and waivers in this Release shall not apply
to any claim: (A) for unemployment or workers’ compensation, (B) for vested benefits under any
employee benefit plan or vested awards under the GATX Corporation 2012 Incentive Award Plan,
(C) that by law is non-waivable, (D) for payments or benefits under Section 6 of the Agreement,
(E) as a stockholder of the Company, or (F) for indemnification under applicable law and for
coverage as an insured under directors and officers liability insurance.
3. No Further Obligations; Additional Representations. In the event of any further proceedings based
upon any released matter, the Company, its affiliates, parent companies, and subsidiaries shall have
no further monetary or other obligation of any kind to the Executive, and the Executive hereby
waives any such monetary or other recovery (provided that nothing limits the Executive’s rights
under Section 5 below). The Executive represents and warrants that: (A) there has not been filed
by the Executive or on the Executive’s behalf any legal or other proceedings against any of the
Released Parties (provided, however, that the Executive need not disclose, and the foregoing
representation and warranty in this subpart (A) does not apply to, conduct or matters described in
Section 5 below); (B) the Executive is the sole owner of the claims that are released in Section 1
above; (C) none of these claims has been transferred or assigned or caused to be transferred or
assigned to any other person, firm or other legal entity; and (D) the Executive has the full right and
power to grant, execute, and deliver the releases, undertakings, and agreements contained in this
Release.
4. Specific Rights Under OWBPA. The Executive understands and agrees that: (A) this is the full
and final release of all claims against the Company through the date he signs this Release; (B) the
Executive knowingly and voluntarily releases claims hereunder for valuable consideration; (C) the
Executive hereby is and has been advised of him right to have his attorney review this Release
before signing it; (D) the Executive has twenty-one (21) days to consider whether to sign this
Release; and (E) the Executive may, at his sole option, revoke this Release upon written notice
within seven (7) days after signing it. This Release will not become effective until this seven
(7) day period has expired and will be void if the Executive revokes it within such period. Although
the Executive is releasing claims that he may have under the ADEA and the OWBPA, he
understands that he may challenge the knowing and voluntary nature of this Release under the
OWBPA and the ADEA before a court, the EEOC, the NLRB, or any other federal state or local
agency charged with the enforcement of any employment laws.
5. Protected Rights. Nothing in this Release is intended to limit in any way the Executive’s right or
ability to report possible violations of law or regulation to, or file a charge or complaint with, the
U.S. Securities and Exchange Commission, the U.S. Equal Employment Opportunity Commission,
the National Labor Relations Board, or other federal, state or local agencies or commissions
(collectively, “Government Agencies”). The Executive further understands that nothing in this
Release limits the Executive’s ability to communicate with any Government Agencies or otherwise
participate in any investigation or proceeding that may be conducted by any Government Agency,
including providing documents or other information, without notice to the Company. This Release
does not limit the Executive’s ability to receive an award from a Government Agency for
information provided by the Executive to such Government Agency.
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Exhibit A – Page 3
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IN WITNESS WHEREOF, the parties hereto have executed this Release and intend to be bound
by its terms.
GATX CORPORATION
By: Exhibit only, to be signed only in
connection with termination of
employment.
Printed Name:
Its:
Date:
I have read the above Release and understand and agree to be bound by its terms.
Exhibit only, to be signed only in
connection with termination of employment.
XXXXX X. XXXX
Date: