EXHIBIT 10.33
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of October 31, 2000,
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is by and among RFI Group, Inc., a Delaware corporation (the "Company"), Pacer
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International, Inc., a Tennessee corporation ("Pacer"), and Xxxx X. Xxxx (the
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"Employee").
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PREAMBLE
On the date hereof, Pacer is acquiring all of the outstanding capital stock
of the Company pursuant to the Stock Purchase Agreement dated as of October 31,
2000 (the "Purchase Agreement"), by and among Pacer, the Employee, the other
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stockholders of the Company, and certain other individuals and entities (the
"Acquisition"). In order to induce Pacer to consummate the Acquisition, the
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Employee has agreed to enter into this Agreement to assure to the Company the
benefits of the continued experience and services of the Employee, all on the
terms and subject to the conditions contained in this Agreement.
ACCORDINGLY, in consideration of the mutual representations, warranties,
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, Pacer and the Employee, the Company, Pacer and the
Employee hereby agree as follows:
Section 1. Duties. On the terms and subject to the conditions
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contained in this Agreement, the Employee will be employed by the Company as its
Chief Operating Officer and Vice President. The Employee shall perform such
duties and services 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 Company's Board of Directors (the "Board"),
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the Chairman of the Board or the Company's President. Anything contained in
this Section 1 or elsewhere in this Agreement to the contrary notwithstanding,
the Employee acknowledges and agrees that the Employee's position and/or title
with the Company is subject to change in the event that the Company is merged
with or into or otherwise consolidated or combined with or into Pacer or any of
its subsidiaries or other affiliates.
Section 2. Term. Unless sooner terminated in accordance with the
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applicable provisions of this Agreement, the Employee's employment hereunder
shall be for the period (the "Employment Period") commencing on the date hereof
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(the "Commencement Date") and ending on the third anniversary of the date hereof
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(the "Scheduled Expiration Date").
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Section 3. Time to be Devoted to Employment. During the Employment
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Period, the Employee shall devote 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; provided, however, that nothing contained in this
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Section 3 shall be construed as prohibiting the Employee from serving on the
Port Washington School Board or from engaging in other charitable, community
service or civic activities, so long as such
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activities do not, in the reasonable judgment of the Board, conflict or
interfere with the Employee's performance of his duties and obligations under
this Agreement.
Section 4. Base Salary; Bonus; Benefits.
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(a) During the Employment Period, the Company (or any of its
subsidiaries or other affiliates, including Pacer, if applicable), shall pay the
Employee a minimum annual base salary (the "Base Salary") of $250,000, payable
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in such installments (but not less often than monthly) as is generally the
policy of Pacer and its subsidiaries from time to time with respect to the
payment of regular compensation to their respective executive officers. During
the Employment Period, the Employee will be entitled to (i) no less than four
(4) weeks vacation per year occurring during the Employment Period, taken in
accordance with the Company's policy in effect from time to time, and (ii) such
other benefits as may be made available from time to time to other executive
officers of Pacer and its subsidiaries generally, including, without limitation,
participation in such health, life and disability insurance programs, stock
option plans, and retirement or savings plans, if any, as Pacer and its
subsidiaries may from time to time maintain in effect, subject to Pacer'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.
(b) In addition to the Base Salary and benefits set forth in Section
4(a), during the Employment Period, the Employee will be entitled to receive a
cash incentive bonus (the "Performance Bonus"), if any, of up to thirty percent
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(30%) of the Employee's Base Salary with respect to each calendar year occurring
during the Employment Period, such bonus to be paid by the Company (or any of
its subsidiaries or other affiliates, including Pacer, if applicable), in a lump
sum following the end of the calendar year with respect to which such bonus is
payable (such payment to be made at or within the same time or times that
performance bonuses are paid to the other executive officers of Pacer and its
subsidiaries). The Performance Bonus, if any, payable with respect to any
calendar year shall be determined reasonably by the Board based (i) fifty
percent (50%) on Pacer's operating income and/or other results of operations for
such calendar year, provided that such income and/or other results are favorable
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when compared to Pacer's budget (as approved by Pacer's Board of Directors) for
such calendar year, and (ii) fifty percent (50%) on the Company's operating
income and/or other results of operations for such calendar year, provided that
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such income and/or results are favorable when compared to the Company's budget
(as approved by the Board) for such calendar year. Anything contained in this
Agreement to the contrary notwithstanding, if the Employee's employment with the
Company is terminated for any reason, other than a termination by the Company
without "cause" pursuant to Section 7(b), neither the Company nor any of its
subsidiaries or other affiliates, including Pacer, shall be obligated to pay the
Employee any Performance Bonus with respect to the calendar year of the Company
in which such termination occurred or thereafter. If the Employee's employment
with the Company is terminated by the Company without "cause" pursuant to
Section 7(b), the Employee shall be entitled to receive that portion of the
Performance Bonus, if any, payable for the calendar year of the Company during
which such termination occurs, pro rated through the date of such termination
based on the number of days elapsed through the termination date over 365 days,
payable in accordance with the first sentence of this Section 4(b).
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(c) All references herein to compensation to be paid to the Employee
are to the gross amounts thereof that may be due hereunder. The Company (or any
of its subsidiaries or other affiliates, including Pacer, if applicable) shall
have the right to deduct therefrom all sums that may be required to be deducted
or withheld under any provision of law (including, without limitation, social
security payments, income tax withholding, and any other deduction required by
law) as in effect at all relevant times during the term of this Agreement.
Section 5. Reimbursement of Expenses. During the Employment Period,
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the Company (or any of its subsidiaries or other affiliates, including Pacer, if
applicable) 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
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Employee is incapacitated or disabled by accident, sickness or otherwise (a
"Disability") so as to render the Employee mentally or physically incapable of
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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 not less than five (5) day's prior 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.
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(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 Employee's failure to follow the lawful directions of the Board, the
Chairman of the Board or the Company's President, including, without limitation,
the willful violation of any material policy of the Company or any of its
subsidiaries or other affiliates that is applicable to the Employee, (iii) the
Employee's material breach of any of the provisions of this Agreement or any
other written agreement between the Employee and the Company or any of its
subsidiaries or other 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 subsidiaries or other
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 subsidiaries or other 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, or, in the case of clause (iii) of this Section
7(a), immediately following the expiration of the thirty (30) day notice and
cure period provided for therein if the Employee fails to cure.
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(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 later of the date
set forth in such notice and the date such notice is deemed received by the
Employee. In addition to a termination without "cause" as contemplated by the
first sentence of this Section 7(b), for purposes of this Agreement the Employee
also shall be deemed to be terminated without "cause" if the Employee
voluntarily resigns within fifteen (15) days after (i) he is demoted from his
position as Chief Operating Officer and Vice President, except as provided in
Section 1, or (ii) his principal office is relocated to any location that is
more than fifty (50) miles from the New York metropolitan area, in either case
in clause (i) or clause (ii) without the Employee's consent, which consent shall
not be unreasonably withheld.
Section 8. Effect of Termination.
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(a) Upon the effective date of termination of the Employee's
employment under this Agreement for any reason other than a termination by the
Company without "cause" pursuant to Section 7(b), neither the Employee nor the
Employee's beneficiaries or estate shall have any claims against the Company or
any of its subsidiaries or other affiliates arising out of this Agreement
(except the right to claim that the Company or Pacer has breached a provision of
this Agreement) or any further rights under 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(a), computed on a per diem basis to the effective date of such
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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, however, that the Employee shall not be entitled to receive any
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benefits under any benefit program that have accrued during any period if
the terms of such program require that the beneficiary be employed by the
Company as of the end of such period.
(b) Upon the effective date of termination of the Employee's
employment under this Agreement by the Company without "cause" pursuant to
Section 7(b), neither the Employee nor the Employee's beneficiaries or estate
shall have any claims against the Company or any of its subsidiaries or other
affiliates arising out of this Agreement (except the right to claim that the
Company or Pacer has breached a provision of this Agreement) or any further
rights under 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 clauses
(ii) and (iii) 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);
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(ii) the right to continue to receive the Base Salary for the
period commencing on the effective date of such termination and ending on
the Scheduled Expiration Date, and, if the Company exercises its option
pursuant to Section 9(d), the right to continue to receive fifty percent
(50%) of the Base Salary for the period commencing on the next day after
the Scheduled Expiration Date and ending on the last day of the Extended
Non-competition Period (as defined in Section 9(d)), in each case payable
during such period in such manner as the Base Salary is payable pursuant to
Section 4(a), and in each case reduced by fifty percent (50%) of any
amounts in excess of $2,500 per month that the Employee (or the Employee's
beneficiaries or estate) receives or is entitled to receive as salary or
other cash compensation from subsequent employment or for services rendered
(or agreed to be rendered) during or with respect to such period, up to a
maximum of all amounts due to the Employee under this Section 8(b)(ii) (and
in order to carry out the intent of the foregoing, the Employee agrees, for
the Employee and the Employee's beneficiaries or estate, to provide the
Company within five (5) days following the Company's request therefor with
such information as the Company may reasonably request regarding the
receipt of, or right to receive, such salary and other cash compensation
from subsequent employment or for services rendered (or agreed to be
rendered) during or with respect to such period); and
(iii) the right to receive any Performance Bonus (or portion
thereof), if any, payable in accordance with Section 4(b) with respect to
the calendar year during which such termination occurs.
Section 9. Disclosure of Information; Noncompetition.
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(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 or
entity (other than any officer, director, employee, affiliate or representative
of the Company), 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 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 subsidiaries or other affiliates.
(b) For purposes of this Agreement, "Confidential Information" means
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(i) the Intellectual Property Rights (as defined in Section 9(c)) of the Company
and its subsidiaries and other affiliates, and (ii) all other information of a
proprietary or confidential nature relating to the Company or any of its
subsidiaries or other affiliates, or the business or assets of the Company or
any of its subsidiaries or other affiliates, including, without limitation,
books, records, agent and independent contractor lists and related information,
customer lists and related information, vendor lists and related information,
supplier lists and related information, distribution channels, pricing
information, cost information, marketing plans, strategies, forecasts, financial
statements, budgets and projections, other than (i) information that is
generally available to the public on the date hereof, or that becomes generally
available to the public after the date hereof without action
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by the Employee, or (ii) 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
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Rights" means all industrial and intellectual property rights, including,
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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.
(d) The Employee shall not during the Employment Period and the Non-
competition Period (as hereinafter defined) (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 9(e)); (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-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 and to assure Pacer of the transfer
of the goodwill of the Company in connection with the Acquisition and to induce
Pacer to consummate the Acquisition. For purposes of this Agreement, "Non-
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competition Period" means the period commencing on the effective date of the
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termination of the Employee's employment with the Company and its subsidiaries
and other affiliates for any reason and ending on either (i) the second
anniversary of the effective date of such termination of employment if such
termination of employment occurs for any reason other than a termination by the
Company without "cause" pursuant to Section 7(b), or (ii) the Scheduled
Expiration Date if such termination of employment occurs as a result of a
termination by the Company without "cause" pursuant to Section 7(b), as
applicable; provided, however, that if clause (ii) is applicable, the Company,
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at its option exercisable in its sole and absolute discretion, may extend the
expiration of the Non-competition Period to a date not later than the second
anniversary of the Scheduled Expiration Date (such extended period being called
the "Extended Non-competition Period") by specifying such date in a written
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notice provided to the Employee. In the event the Company elects to extend the
expiration of the Non-competition Period pursuant to the preceding sentence, the
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Employee shall have the right to continue to receive fifty percent (50%) of the
Base Salary for the Extended Non-competition Period, as provided in Section
8(b)(ii).
(e) For purposes of this Agreement, the term "Competing Business"
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means any transportation or other business that the Company or any of its
subsidiaries or other 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 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 FCL and LCL transportation
services).
Section 10. Inventions Assignment. During the Employment Period, the
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Employee shall promptly disclose, grant and assign to the Company for its and
its subsidiaries' and other affiliates' sole use and benefit any and all
inventions, improvements, technical information and suggestions reasonably
relating to the business of the Company and its subsidiaries and other
affiliates (collectively, the "Inventions") that the Employee may develop or
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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 severance payments from the
Company pursuant to Section 8(b)(ii), or if the Employee has not received any
severance payment with respect to such time period), 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 severance payments from the Company
pursuant to Section 8(b)(ii), or if the Employee has not received any severance
payment with respect to such time period), 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. 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 only to
the extent that the Employee can do so without materially affecting the
Employee's other business obligations to his employer and other third parties.
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Section 11. Assistance in Litigation. At the request and expense of the
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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 severance payments from the Company pursuant to Section
8(b)(ii), or if the Employee has not received any severance payment with respect
to such time period), 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 subsidiaries and other affiliates as they may
reasonably require in connection with any issue, claim or litigation in which
the Company or any such subsidiary or other affiliate 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 only to
the extent that the Employee can do so without materially affecting the
Employee's other business obligations to his employer and other third parties.
Section 12. Entire Agreement; Amendment and Waiver. This Agreement
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contains the entire agreement between the Employee and the Company 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
subsidiaries or other affiliates regarding the subject matter hereof. 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.
Section 13. 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 it at:
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
(ii) if to Pacer, to it at:
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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(iii) if to the Employee, to him at his 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, and if not sent on a business day, then on
the next business day after the date sent), (iii) in the case of delivery by
nationally-recognized, overnight courier, on the next business day following
dispatch, and (iv) in the case of mailing, on the third business day following
such mailing.
Section 14. Headings. The section headings in this Agreement are for
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convenience only and shall not control or affect the meaning of any provision of
this Agreement.
Section 15. Severability. It is the desire and intent of the parties
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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 invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction. Notwithstanding the foregoing, if such provision could be more
narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 16. Remedies. The Employee acknowledges and understands that
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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, 10 or 11,
the Company shall be entitled to immediate relief enjoining such violations in
any court or before any judicial body having jurisdiction over such a claim.
All remedies hereunder are cumulative, are in addition to any other remedies
provided for by law and, 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 17. Representation. The Employee hereby represents and warrants
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to the Company that (a) the execution, delivery and performance of this
Agreement by the Employee does 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 (b) the Employee
is not a party to or bound by any employment agreement, consulting agreement,
noncompete agreement, confidentiality agreement or similar agreement with any
other person or entity.
Section 18. Benefits of Agreement; Assignment. The terms and provisions
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of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their
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respective successors, 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 parties hereto, except that the Company
may assign this Agreement or its rights hereunder to Pacer, a direct or indirect
wholly-owned subsidiary of Pacer or the Company, or to any person or entity
succeeding to all or any substantial portion of their respective businesses.
Section 19. Governing Law. This Agreement shall be governed by and
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construed in accordance with the domestic laws of the State of New York without
giving effect to any choice of law provision or rule (whether of the State of
New York or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of New York.
Section 20. Mutual Waiver of Jury Trial. THE PARTIES WISH THAT
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APPLICABLE LAWS APPLY TO THE RESOLUTION OF ANY DISPUTES ARISING UNDER THIS
AGREEMENT AND THE SUBJECT MATTER HEREOF, AND THAT THEIR DISPUTES BE RESOLVED BY
AN EXPERIENCED PERSON APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND APPLICABLE LAWS, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS
AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
Section 21. Counterparts. This Agreement may be executed in any number
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of counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
* * * * * *
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IN WITNESS WHEREOF, the parties have executed and delivered this
Employment Agreement effective as of the date first written above.
THE COMPANY:
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RFI GROUP, INC.
By:/s/ Xxxx X. Xxxx
____________________________
Name: Xxxx X. Xxxx
__________________________
Title: Chief Operating Officer
________________________
THE EMPLOYEE:
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/s/ Xxxx X. Xxxx
____________________________
Xxxx X. Xxxx
PACER:
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PACER INTERNATIONAL, INC.
By:/s/ XX Xxxxxxxx
____________________________
Name: XX Xxxxxxxx
_________________________
Title: Executive Vice President
________________________
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