EXHIBIT 10.36
STOCK EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION
DATED ____________ ____, 2002,
AMONG
PACER INTERNATIONAL, INC.,
PACER LOGISTICS, INC.,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TABLE OF CONTENTS
Page No.
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SECTION 1. Exchange of Stock ............................................................1
SECTION 2. Closing; Deliveries at Closing.................................................2
SECTION 3. Representations and Warranties of the Company..................................3
SECTION 4. Representations and Warranties of the Preferred Shareholders...................4
SECTION 5. Survival of Representations, Warranties and Covenants..........................7
SECTION 6. Definitions....................................................................7
SECTION 7. Expenses.......................................................................8
SECTION 8. Remedies.......................................................................8
SECTION 9. Successors and Assigns.........................................................8
SECTION 10. Entire Agreement...............................................................8
SECTION 11. Notices........................................................................8
SECTION 12. Changes........................................................................9
SECTION 13. Counterparts...................................................................9
SECTION 14. Headings.......................................................................9
SECTION 15. Severability...................................................................9
SECTION 16. Governing Law..................................................................9
STOCK EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION dated __________ ___,
2002, by and among PACER INTERNATIONAL, INC., a Tennessee corporation (the
"Company"), PACER LOGISTICS, INC., a Delaware corporation ("Pacer Logistics"),
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (each a "Preferred Shareholder",
collectively, the "Preferred Shareholders").
PREAMBLE
The Company currently owns all of the issued and outstanding shares of
common stock, $.01 par value, of Pacer Logistics.
The Preferred Shareholders own all of the issued and outstanding shares of
Series B Perpetual Participating Exchangeable Preferred Stock, $.01 par value,
of Pacer Logistics (the "Logistics Participating Preferred Stock").
The Board of Directors of the Company and the Board of Directors of Pacer
Logistics have determined that the Company and Pacer Logistics would enjoy
various advantages and benefits if Pacer Logistics were a wholly-owned
subsidiary of the Company, including without limitation (i) better access to,
and an enhanced ability to raise, additional capital, including by way of an
initial public offering ("IPO") of the common stock, $.01 par value, of the
Company (the "Common Stock"), (ii) a simplified corporate ownership structure
for the Company and its subsidiaries, and (iii) reduced costs and increased
efficiencies associated with tax, financial and accounting reporting
requirements, including the ability to include Pacer Logistics in the Company's
consolidated federal and, where applicable, state income tax returns.
For the foregoing and other reasons, the Company wishes to acquire all of
the outstanding Logistics Participating Preferred Stock in exchange solely for
shares of Company Common Stock in a transaction intended to qualify as a tax
free "B" reorganization under Section 368(a)(1)(B) of the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated thereunder,
pursuant to which the Company would issue and exchange 200 shares of Company
Common Stock (after giving effect to the Stock Split referred to below) for each
outstanding share of Logistics Participating Preferred Stock.
The parties hereto desire to provide for the exchange of the Company Common
Stock for the Logistics Participating Preferred Stock, all as more specifically
set forth herein. Certain capitalized terms used herein have the meanings set
forth in Section 6 hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Exchange of Stock. (a) On the terms and subject to the
conditions contained in this Agreement, at the Closing (as defined herein), each
Preferred Shareholder shall transfer, convey and assign to the Company, all of
such Preferred Shareholder's outstanding shares of Logistics Participating
Preferred Stock, and, in exchange, the Company shall issue and deliver to such
Preferred Shareholder 200 shares of Company Common Stock (after giving effect to
the 2 for 1 stock split of the Company Common Stock declared by the Board of
Directors of the Company on May __, 2002 (the "Stock Split")) for each share of
Logistics Participating
Preferred Stock. No fractional shares of Common Stock shall be delivered upon
exchange of the Logistics Participating Preferred Stock. In the event that a
fractional share of Common Stock would be delivered to a Preferred Shareholder
upon exchange, the number of shares of Common Stock issuable to that Preferred
Shareholder will be rounded down to the nearest whole share.
(b) At the Closing, (i) each Preferred Shareholder shall deliver to the
Company the certificate or certificates representing such Preferred
Shareholder's shares of Logistics Participating Preferred Stock, accompanied by
duly executed stock powers transferring the shares of Logistics Participating
Preferred Stock to the Company, in each case sufficient in form and substance to
convey to the Company good title to all of such Preferred Shareholder's shares
of Logistics Participating Preferred Stock, free and clear of all Encumbrances,
and (ii) the Company shall deliver to each Preferred Shareholder a certificate,
registered in the name of such Preferred Shareholder, representing the shares of
Company Common Stock exchanged for such Preferred Shareholder's shares of
Logistics Participating Preferred Stock.
(c) At the Closing, the Company shall contribute to the capital of Pacer
Logistics the shares of Logistics Participating Preferred Stock received by it
hereunder by delivering to Pacer Logistics the certificates representing the
shares of Logistics Participating Preferred Stock which shares shall be
cancelled by Pacer Logistics and assume the status of authorized but unissued
shares of preferred stock of Pacer Logistics.
SECTION 2. Closing; Deliveries at Closing.
2.1 Closing. The closing (the "Closing") of the transactions contemplated
hereby shall take place at the offices of ▇'▇▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, simultaneously with the execution and delivery of this
Agreement.
2.2 Deliveries at Closing. At the Closing:
(a) The Company shall deliver to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a stock certificate
registered in his name representing 464,850 shares of Company Common Stock
(after giving effect to the Stock Split), against receipt by the Company of
certificate No. BP-1 of Pacer Logistics, dated May 28, 1999, representing
2,329.25 shares of Logistics Participating Preferred Stock.
(b) The Company shall deliver to ▇▇▇▇▇ ▇▇▇▇▇▇, a stock certificate
registered in his name representing 452,832 shares of Company Common Stock
(after giving effect to the Stock Split), against receipt by the Company of
certificate No. BP-2 of Pacer Logistics, dated May 28,1999, representing
2,264.16 shares of Logistics Participating Preferred Stock.
(c) The Company shall deliver to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a stock certificate
registered in his name representing 452,832 shares of Company Common Stock
(after giving effect to the Stock Split), against receipt by the Company of
certificate No. BP-3 of Pacer Logistics, dated May 28, 1999, representing
2,264.16 shares of Logistics Participating Preferred Stock.
(d) The Company shall deliver to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, a stock certificate
registered in his name representing 992,750 shares of Company Common Stock
(after giving
effect to the Stock Split), against receipt by the Company of certificate No.
BP-4 of Pacer Logistics, dated May 28, 1999, representing 4,963.75 shares of
Logistics Participating Preferred Stock.
(e) The Company shall deliver to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a stock certificate
registered in his name representing 992,750 shares of Company Common Stock
(after giving effect to the Stock Split), against receipt by the Company of
certificate No. BP-5 of Pacer Logistics, dated May 28, 1999, representing
4,963.75 shares of Logistics Participating Preferred Stock.
(f) The Company shall deliver to ▇▇▇▇ ▇. ▇▇▇▇, a stock certificate
registered in his name representing 318,474 shares of Company Common Stock
(after giving effect to the Stock Split), against receipt by the Company of
certificate No. BP-6 of Pacer Logistics, dated May 28, 1999, representing
1,592.37 shares of Logistics Participating Preferred Stock.
(g) The Company shall deliver to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a stock certificate
registered in his name representing 794,200 shares of Company Common Stock
(after giving effect to the Stock Split), against receipt by the Company of
certificate No. BP-8 of Pacer Logistics, dated May 28, 1999, representing
3,971.00 shares of Logistics Participating Preferred Stock.
(h) The Company shall deliver the certificates representing the shares of
Logistics Participating Preferred Stock referenced in paragraphs (a) through (g)
above, duly endorsed for transfer, to Pacer Logistics as a capital contribution.
SECTION 3. Representations and Warranties of the Company to the Preferred
Shareholders. The Company hereby represents and warrants to each of the
Preferred Shareholders as follows:
3.1 Organization, Power, Authority and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Tennessee and has all requisite power and authority (corporate
or otherwise) to own, lease and operate its assets and properties and to carry
on its business as presently conducted and as presently proposed to be
conducted.
3.2 Authority; Authorization, Execution and Delivery; Enforceability; No
Conflict. (a) The Company has all requisite power and authority (corporate or
otherwise) to execute, deliver and perform its obligations under this Agreement,
and to consummate the transactions contemplated hereby. The Company's execution
and delivery of this Agreement, and the performance by the Company of its
obligations hereunder, have been duly and validly authorized by all requisite
action on the part of the Company. This Agreement has been, or upon the
Company's execution hereof will be, duly and validly executed and delivered by
the Company and constitutes, or upon the Company's execution and delivery hereof
will constitute, a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar Laws affecting creditors' rights and remedies generally,
and to general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity).
(b) Neither the execution and delivery by the Company of, nor the
performance of its obligations under, this Agreement, nor the consummation by
the Company of the transactions contemplated hereby, will (i) conflict with, or
result in any violation of, or cause a default (with or without notice or lapse
of time or both) under, any provision of its charter or by-laws, in each case as
amended to the date hereof, (ii) conflict with, or result in any violation of,
or cause a default (with or without notice or lapse of time or both) under, or
give rise to any right of termination, amendment, cancellation or acceleration
of any obligations contained in, or the loss of any benefit under, any term,
condition or provision of any Contract to which the Company is a party, or by
which the Company or any of its assets or properties are or may be bound, that
is material to the Company and its subsidiaries, taken as a whole, (iii) violate
any Law applicable to the Company, or (iv) result in an Encumbrance on or
against any assets, rights or properties of the Company, or on or against any
capital stock or other securities of the Company, or give rise to any claim
against the Company or any of its subsidiaries.
3.3 Consents. No Permit, authorization, consent or approval of or by, or
notification of or filing with, any Person (governmental or otherwise) is
required for, as a result of, or in connection with the execution, delivery and
performance by the Company of this Agreement or the consummation of the
transactions contemplated hereby (other than those that have been or will be
made or obtained prior to the Closing.
3.4 Issuance of Common Stock. Upon issuance thereof in accordance with the
terms hereof, the shares of Common Stock issued to the Preferred Shareholders in
exchange for the Logistics Participating Preferred Stock shall be duly
authorized, validly issued, fully paid and nonassessable.
SECTION 4. Representations and Warranties of the Preferred Shareholders.
Each of the Preferred Shareholders, as to himself, represents and warrants to
the Company as follows:
4.1 Title to the Shares. Such Preferred Shareholder (i) is the lawful
owner, of record and beneficially, of the number of shares of Logistics
Participating Preferred Stock set forth opposite his name on Annex I, and (ii)
has good and marketable title to such shares of Logistics Participating
Preferred Stock, free and clear of any and all Encumbrances whatsoever and with
no restriction on the voting rights and other incidents of record and beneficial
ownership pertaining thereto (other than those arising under the Management
Shareholders Agreement referred to below). Such Preferred Shareholder is not the
subject of any bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar proceeding affecting creditors' rights and remedies
generally and has not been adjudicated incompetent or had a guardian or
conservator or other official appointed with respect to himself or his property.
Except for this Agreement, the lock-up agreement executed by such Preferred
Shareholder in connection with the IPO and the Shareholders Agreement dated May
28, 1999 (the "Management Shareholders Agreement") among the Company, Coyote
Acquisition LLC, Coyote Acquisition II LLC and the other shareholders named
therein, there are no Contracts or other understandings or arrangements between
such Preferred Shareholder and any other Person (including any of the
other Preferred Shareholders, the Company, or any of the Company's subsidiaries)
with respect to the acquisition, disposition, transfer, registration or voting
of, or any other matters in any way pertaining or relating to, any of the
capital stock or other securities of the Company (including the shares of
Logistics Participating Preferred Stock owned by such Preferred Shareholder).
Such Preferred Shareholder does not have any right whatsoever to receive or
acquire any additional shares of capital stock or other securities of the
Company or any of its Subsidiaries, other than, if applicable, Common Stock of
the Company upon exercise of options granted under the Company's 1999 Stock
Option Plan and contingent rights, if any, arising under the Management
Shareholders Agreement.
4.2 Authority; Authorization, Execution and Delivery; Enforceability; No
Conflict. (a) Such Preferred Shareholder has the full and absolute legal right,
capacity, power and authority (if applicable, corporate or partnership or
otherwise) to execute, deliver and perform his obligations under this Agreement,
and to consummate the transactions contemplated hereby. This Agreement has been,
or upon the execution hereof will be, duly and validly executed and delivered by
such Preferred Shareholder, and this Agreement is, or upon the execution hereof
will be, duly and validly executed and delivered by such Preferred Shareholder
and constitutes, or upon such Preferred Shareholder's execution and delivery
hereof and thereof, will constitute, a valid and binding obligation of such
Preferred Shareholder, enforceable against him in accordance with its respective
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar Laws affecting creditors' rights and
remedies generally, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(b) Neither the execution and delivery by such Preferred Shareholder of,
nor the performance of his obligations under, this Agreement, nor the
consummation by such Preferred Shareholder of the transactions contemplated
hereby, will (i) conflict with, or result in any violation of, or cause a
default (with or without notice or lapse of time or both) under, or give rise to
any right of termination, amendment, cancellation or acceleration of any
obligations contained in, or the loss of any benefit under, any term, condition
or provision of any Contract to which such Preferred Shareholder is a party or
by which such Preferred Shareholder, or any of his assets or properties are, or
may be, bound, (ii) violate any Law applicable to such Preferred Shareholder, or
(iii) result in an Encumbrance on or against any assets, rights or properties of
such Preferred Shareholder, or give rise to any claim against the Company or any
of the Company's subsidiaries.
4.3 Consents. No Permit, authorization, consent or approval of or by, or
any notification of or filing with, any Person (governmental or private) is
required for, as a result of, or in connection with the execution, delivery and
performance by such Preferred Shareholder of this Agreement or the consummation
of the transactions contemplated hereby.
4.4 Investment Representations.
(a) Such Preferred Shareholder is acquiring the Common Stock to be received
by him hereunder for investment for his own account, not as a nominee or agent,
and not with a view to, or for offer or resale in connection with, directly or
indirectly, any distribution thereof (or any interest therein) in violation of
the Securities Act or any other applicable securities laws.
(b) Such Preferred Shareholder understands that the shares of Common Stock
to be issued to him in exchange for the Logistics Participating Preferred Stock
have not been registered under the Securities Act by reason of their issuance by
the Company in a transaction exempt from the registration requirements of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Preferred Shareholder's
representations and warranties contained in this Agreement; and that the shares
of Common Stock must be held by him indefinitely unless a subsequent disposition
thereof is registered under the Securities Act or is exempt from such
registration.
(c) The Preferred Shareholder acknowledges that, except as is expressly set
forth in this Agreement, neither the Company nor any person representing the
Company has made any representations with respect to the Company, the IPO or the
Common Stock and that neither the Company nor any person representing the
Company has provided any information to the Preferred Shareholder with respect
to the Company, the IPO or the Common Stock, other than as may be available to
the Preferred Shareholder through the Securities and Exchange Commission's ▇▇▇▇▇
system.
(d) The Preferred Shareholder understands that an investment in the Common
Stock involves substantial risk. The Preferred Shareholder has experience as an
investor in securities of companies and acknowledges that he is able to fend for
himself, can bear the economic risk of his investment in the Common Stock,
including a total loss of his investment, and has such knowledge and experience
in financial or business matters that he is capable of evaluating the merits and
risks of an investment in the Common Stock and protecting his own interests in
connection with this investment.
(e) The Preferred Shareholder understands that the shares of Common Stock
to be received by him hereunder in exchange for the Logistics Participating
Preferred Stock are "restricted securities" as defined in Rule 144 under the
Securities Act inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under the Securities Act
and applicable regulations thereunder such securities may be resold without
registration under the Securities Act only in certain limited circumstances. The
Preferred Shareholder is familiar with Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Securities Act.
Such Preferred Shareholder further understands that the exemption from
registration afforded by Rule 144 depends on the satisfaction of various
conditions, and that, if applicable, Rule 144 may afford the basis for sales
only in limited amounts. The Preferred Shareholder understands that the Company
is under no obligation to register any of the Common Stock received by the
Preferred Shareholder hereunder, except as may be required under the Management
Shareholders Agreement.
(f) Such Preferred Shareholder further understands that the shares of
Common Stock to be issued to such Preferred Shareholder in exchange for the
Logistics Participating Preferred Stock will bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
(g) Such Preferred Shareholder is an "accredited investor" as such term is
defined in Rule 501 promulgated under the Securities Act.
SECTION 5. Survival of Representations, Warranties and Covenants. All
representations and warranties of the Company and the Preferred Shareholders
contained herein shall survive the Closing. All statements contained in any
certificate or other instrument delivered by the Company pursuant to this
Agreement or in connection with the transactions contemplated by this Agreement
shall constitute representations and warranties by the Company or a Preferred
Shareholder under this Agreement. All covenants contained herein shall survive
indefinitely until, by their respective terms, they are no longer operative.
SECTION 6. Definitions. Capitalized terms used and not otherwise defined
herein have the meanings ascribed to them below:
"Contract" means any loan or credit agreement, note, bond, mortgage,
indenture, license, lease, sublease, grant of easement, right of way, purchase
order, sale order, service order, or other contract, agreement, commitment,
instrument, permit, concession, franchise or license, whether written or oral.
"Encumbrances" means and includes security interests, mortgages, liens,
pledges, charges, easements, reservations, restrictions, rights of way,
servitudes, options, rights of first refusal, community property interests,
equitable interests, restrictions of any kind and all other encumbrances,
whether or not relating to the extension of credit or the borrowing of money.
"Governmental Entity" means any domestic or foreign government or political
subdivision thereof, whether on a federal, state, provincial or local level and
whether legislative, executive, judicial in nature, including any agency,
authority, board, bureau, commission, court, department or other instrumentality
thereof.
"Law" means any applicable domestic or foreign law, statute, treaty, rule,
directive, regulation, ordinance or similar provision having the force or effect
of law, whether on a federal, state, provincial or local level, or any
applicable order of any Governmental Entity.
"Permits" means all permits, licenses, authorizations, registrations,
franchises, approvals, consents, certificates, variances and similar rights
obtained, or required to be obtained, from a Governmental Entity.
"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, a Governmental Entity, and any other entity.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder, all as the same shall be in effect
from time to time.
SECTION 7. Expenses. Each party to this Agreement shall bear its own
expenses incurred in connection with this Agreement and the transactions
contemplated by this Agreement.
SECTION 8. Remedies. In case any one or more of the covenants or agreements
set forth in this Agreement shall have been breached by any party hereto, the
party or parties entitled to the benefit of such covenants or agreements may
proceed to protect and enforce their rights by suit in equity and/or by action
at law, including, but not limited to, an action for damages as a result of any
such breach and/or an action for specific performance of any such covenant or
agreement contained in this Agreement. The rights, powers and remedies of the
parties under this Agreement are cumulative and not exclusive of any other
right, power or remedy which such parties may have under any other agreement or
law. No single or partial assertion or exercise of any right, power or remedy of
a party hereunder shall preclude any other or further assertion or exercise
thereof.
SECTION 9. Successors and Assigns. Except as otherwise
expressly provided herein, this Agreement shall bind and inure to the benefit of
the Company, each of the Preferred Shareholders, and their respective successors
and assigns.
SECTION 10. Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
SECTION 11. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument given by personal delivery, telex, telecopier
or telegram, by overnight courier or by first class registered or certified
mail, postage prepaid, addressed to such party at the address set forth below or
such other address as may hereafter be designated in writing by the addressee to
the other persons listed below:
if to the Company or any Preferred Shareholder, to:
Pacer International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇'▇▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
All such notices, requests, consents and other communications shall be deemed to
have been received (a) in the case of personal delivery, telex, telecopier or
telegram, on the date of such delivery, (b) in the case of overnight courier, on
the next business day and (c) in the case of mailing, on the third business day
following the date of such mailing.
SECTION 12. Changes. The terms and provisions of this Agreement may not be
modified or amended, nor any of the provisions hereof waived, temporarily or
permanently, except pursuant to an instrument in writing signed by the party
against whom the enforcement of any such modification, amendment or waiver is
sought.
SECTION 13. 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 together shall constitute but one
agreement.
SECTION 14. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
SECTION 15. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and performed wholly therein except to the extent that mandatory
provisions of the laws of the State of Tennessee or the State of Delaware shall
be required to be applied with respect to the Company and Pacer Logistics,
respectively.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written. PACER INTERNATIONAL, INC.
By:
-----------------------------------------
Name:
Title:
PACER LOGISTICS, INC.
By:
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Name:
Title:
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ANNEX I
PREFERRED SHAREHOLDERS
----------------------
Number of Shares of
Name Logistics Participating Preferred Stock
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 2,329.25
▇▇▇▇▇ ▇▇▇▇▇▇ 2,264.16
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 2,264.16
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 4,963.75
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,963.75
▇▇▇▇ ▇. ▇▇▇▇ 1,592.37
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3,971.00
