EXHIBIT 10.82
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement")
effective as of the 1st day of January, 2002, between RailAmerica, Inc., a
Delaware corporation (the "Company"), having an office at Boca Raton, Florida,
and Xxxx X. Xxxxxx (the "Executive"). This Agreement supercedes and replaces
that certain Executive Employment Agreement made effective as of January 1, 2000
by and between the Company and the Executive (the "Prior Agreement"), in its
entirety. As of the effective date of this Agreement, the Prior Agreement shall
have no force or effect.
WHEREAS, the Company believes it is in the best interests of the Company
and its subsidiaries and affiliates (collectively, the "Consolidated Group") to
continue to employ the Executive, and the Executive desires to continue to be
employed by the Company; and
WHEREAS, the Compensation Committee (the "Committee") of the Board of
Directors of the Company (the "Board") has approved of the terms of this
Agreement as of the date set forth above; and
WHEREAS, the Company and the Executive desire to set forth the terms and
conditions on which the Executive shall be employed by the Company and provide
his services to the Consolidated Group.
NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:
1. Employment. The Company hereby employs Executive, and Executive hereby
accepts such employment, all upon the terms and conditions hereinafter set
forth,
2. Term. Unless sooner terminated pursuant to the provisions of this
Agreement, the initial term of employment under this Agreement shall be for a
period commencing as of January 1, 2002 and ending December 31, 2004 (the
"Employment Period"). The Employment Period shall be extended automatically for
one (1) year periods after the initial term under this Agreement and after the
end of each one-year period thereafter, so that there shall be successive
one-year terms of employment under this Agreement commencing on January 1, 2005,
unless the Company or the Executive gives written notice of non-extension to the
other party not less than three hundred sixty-five (365) days prior to the end
of the Employment Period. References herein to the "Employment Period" shall
refer to both the initial term and each successive one-year term for which this
Agreement is extended.
3. Base Salary. The Executive shall be entitled to receive a base salary
from the Company during the Employment Period (the "Base Salary") at the rate of
Seven Hundred Fifty Thousand Dollars ($750,000) per annum. The Base Salary shall
be payable in accordance with the current normal payroll policies of the
Company, which policies may be changed by the Company from time to time in its
sole discretion, and shall be subject to all appropriate
withholding taxes. Effective each January 1 during the Employment Period,
commencing with January 1, 2001, the Base Salary shall be increased by such
percentage as corresponds to any annual percentage increase in the consumer
price index reported in "U.S. City Average: All Items," under the table entitled
"Consumer Price Index for All Urban Consumers" (1967 equals 100), as published
by the U.S. Department of Labor, Bureau of Labor Statistics (the "Index"),
calculated by multiplying the Base Salary for the immediately preceding year by
a fraction, the numerator of which is the Index number for October 1 of such
immediately preceding year, and the denominator of which is the Index number for
October 1 of the next preceding year. In addition to any annual increases in the
Base Salary as a result of changes in the Index, the Base Salary shall be
subject to annual reviews and upward adjustments, effective each January 1
during the Employment Period, commencing with January 1, 2003, in the sole
discretion of the Committee. The Committee shall meet and determine the upward
adjustment, if any, to the Base Salary no later than the December 15 immediately
preceding each January 1 during the Employment Period. An adjustment to the Base
Salary shall not be deemed a modification, amendment or waiver of this Agreement
except as the term "Base Salary" is used in this Agreement; all other provisions
of this Agreement shall, in that case, remain in full force and effect.
4. General Bonuses. The Executive shall participate, with respect to each
full fiscal year during the Employment Period, in the Company's Management
Incentive Plan (the "MIP"), which shall remain in effect during the entire
Employment Period, subject to such amendments, modifications, supplements or
other changes as shall be determined at any time, or from time to time, by the
Committee.
5. Option Grants. Pursuant to the Prior Agreement, the Company granted the
Executive options to purchase five hundred thousand (500,000) shares of Common
Stock, exercisable at $9.00 per share in three equal increments on January 1,
2000, January 1, 2001, and January 1, 2002. Nothing in this Agreement shall in
any way diminish the Executive's rights under any option agreement between the
Company and the Executive effecting that or any other option grant previously
made to the Executive.
6. Other Bonus or Incentive Payments. The Executive shall, at all times
during the Employment Period, be eligible to receive, in addition to the Base
Salary, bonuses and other benefits provided for hereunder, additional bonuses,
stock options or grants, stock appreciation rights or other incentive payments
to be determined as to the amount and time of payment by the Committee.
7. Benefits.
(a) Vacation. For each twelve-month period from January 1 to
December 31 during the Employment Period, the Executive shall be entitled to
five (5) weeks of vacation without loss of compensation or other benefits to
which he is entitled under this Agreement, to be taken at such times as the
Executive may select and the affairs of the Consolidated Group may permit.
Vacation may be carried over from year-to-year, if the affairs of the
Consolidated Group do not permit it to be taken. Vacation entitlement unused at
the end of the Employment Period shall expire.
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(b) Executive Benefit Programs. Without limiting the compensation or
other benefits to which the Executive may be entitled pursuant to any other
provision of this Agreement, during the Employment Period the Executive shall be
entitled to participate in any pension, retirement, insurance or other employee
benefit plan that is maintained at that time by the Company for its employees
generally, including, without limitation, programs of life, disability, basic
medical and dental and supplemental medical and dental insurance. The Executive
shall be entitled to the benefits under this Section on terms at least as
favorable as those granted to other employees of the Consolidated Group.
Notwithstanding the foregoing, during the Employment Period the Executive shall
at all times be entitled to the following minimum benefits:
(i) Medical and dental insurance for himself and his family,
including supplemental coverage for any co-payments and deductibles; provided,
however, that the annual premiums, fees and other costs paid by the Company for
such insurance for the Executive and his family shall not exceed Fifteen
Thousand Dollars ($15,000.00);
(ii) Long-term disability insurance for himself; provided,
however, that the annual premiums, fees and other costs paid by the Company for
such insurance for the Executive shall not exceed Twenty Thousand Dollars
($20,000.00), it being the intent of the parties that the Executive's long-term
disability benefits approximate sixty-seven percent (67%) of the then-current
Base Salary at all times during the Employment Period if such long-term
disability insurance in such amount is then reasonably available for an annual
premium, fees and other costs paid by the Company not to exceed Twenty Thousand
Dollars ($20,000.00).
(iii) Term life insurance on the life of the Executive in the
benefit amount of Three Million Dollars ($3,000,000.00), with the beneficiaries
thereof designated by the Executive; provided that in no event shall the annual
premium for such term life insurance exceed Twenty Thousand Dollars ($20,000);
(iv) Directors' and Officers' Liability Insurance, if
reasonably available, provided that the terms and amounts of such insurance
shall be subject to approval by the Board;
(v) Indemnification by the Company to the fullest extent
permitted by law;
(vi) Advancement or reimbursement of funds for all reasonable
travel, entertainment and miscellaneous expenses incurred by the Executive in
connection with the performance of his duties under this Agreement; provided,
however, that the Executive properly accounts for such expenses to the Company
in accordance with the Company's practices; and
(vii) An annual allowance of $35,000, fully grossed-up for
applicable taxes imposed on the Executive as a result of receiving the benefit
provided in this Section 7(b)(vii), in lieu of such benefits including, but not
limited to, automobile expenses, country club memberships, and financial and
estate planning. The allowance shall accrue to the Executive in twelve (12)
equal monthly installments, on the first day of each calendar month. The
Executive shall not be required to account to the Company for any expenses
relating to this allowance.
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(viii) The Executive shall receive an amount equal to not less
than 10% of his Base Salary as deferred compensation under that certain
Nonqualified Deferred Compensation Agreement dated as of January 3, 1997 between
the Executive and the Company, or alternatively, under such other plans or
agreements as the Company and the Executive may agree upon from time to time.
8. Duties. During the Employment Period:
(a) The Executive agrees to serve as Chief Executive Officer and
President of the Company, and to serve in such other positions with the Company
and the other members of the Consolidated Group with such other titles as the
Board may from time to time determine. The Executive shall exercise such powers
and comply with and perform such directions and duties in relation to the
business and affairs of the Consolidated Group as may from time to time be
vested in or requested by the Board and shall use his best efforts to improve
and extend the businesses of the Consolidated Group. The Executive shall at all
times report to, and his activities shall at all times be subject to the
direction and control of, the Board.
(b) The Executive shall devote all of his business and professional
time, energy and skill to the service of the Consolidated Group and the
promotion of its interests and shall use his best efforts in the performance of
his duties hereunder. Subject to the restrictions of Section 12, the Executive
may, however, devote an appropriate amount of time to directorships in other
profit and non-profit corporations, participation in professional organizations,
management of purely passive personal and family investments (including, without
limitation, in the capacity of a trustee, executor or guardian for family
members) and participation in community, civic and charitable activities;
provided, however, that these matters and the amount of time devoted to them
shall not conflict with or impair the Executive's performance of his duties to
the Consolidated Group in any material way and shall not in the aggregate, on
average, involve more than five (5) hours of the Executive's time per week. The
Executive agrees to abide by all By-laws, rules and regulations established from
time to time by the Company, a majority of its shareholders and/or the Board;
and all commissions, fees or other income earned and received by the Executive,
in furtherance of the business of the Consolidated Group, from any person other
than the Company shall be accepted by the Executive for the account of the
Company.
9. Confidentiality.
(a) General. In the course of the Executive's relationship with the
Consolidated Group, some or all of the members of the Consolidated Group have
disclosed or made known, or may disclose or make known, to the Executive, and
the Executive has been or may be given access to or may become acquainted with,
certain information, trade secrets or both, relating to or useful in one or more
of the businesses of the Consolidated Group (collectively "Information"), and
which the Company considers proprietary and desires to maintain confidential.
As a material inducement to the Company to enter into this Agreement, the
Executive covenants and agrees that, during the Employment Period and at all
times thereafter, the Executive shall not in any manner, either directly or
indirectly, divulge, disclose or communicate
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to any person or entity, except to or for the benefit of the Consolidated Group
or as directed by the Board, any of the Information which he may have acquired
in the course of or as an incident to his relationship with any member of the
Consolidated Group, including, without limitation, pursuant to his employment
hereunder, the parties agreeing that such Information affects the successful and
effective conduct of the businesses of the Consolidated Group and its goodwill,
and that any breach of the terms of this Section is a material breach of this
Agreement. All equipment, documents, memoranda, reports, records, computer
software, disks, tapes, other means of electronic data storage, files,
materials, samples, books, correspondence, lists, other written and graphic
records and the like (collectively, the "Materials"), affecting or relating to
one or more of the businesses of the Consolidated Group, which the Executive
shall prepare, use, construct, observe, possess or control shall be and remain
the sole property of the Consolidated Group and/or in its exclusive custody and
control, and must not be removed from the premises of a member of the
Consolidated Group or given to any person or entity except for the benefit of
the Consolidated Group or as directed by the Board. Promptly upon termination of
the Employment Period for any reason, the Materials, Information and all copies
thereof in the custody or control of the Executive shall be delivered promptly
to the Company.
(b) Survival. The provisions of this Section 9 shall survive the
termination or expiration of this Agreement, as applicable.
10. Change in Control. A separate Change in Control Severance Agreement
between the Executive and the Company has been entered into effective as of the
20th day of June, 2000, as amended. That agreement, as amended and/or restated
from time to time, shall govern in the event a Change in Control (as defined in
that agreement) occurs.
11. Termination of Employment Period.
(a) Termination for Judicially-Determined Cause. The Board may
terminate the Employment Period pursuant to the terms of this Section 11(a) for
cause at any time by giving written notice to the Executive. Such termination
shall become effective upon the giving of such notice, except that termination
based upon Section 11(a)(iv) below shall not become effective unless the
Executive shall fail to correct such breach within thirty (30) days after
receipt of written notice thereof as provided in the preceding sentence. Upon
any such termination for cause the Executive shall have no right to the Base
Salary, bonuses or other payments under Sections 3, 4, 5, or 6, or to
participate in any employee benefit programs under Section 7, as of the
effective date of termination. For purposes of this Agreement, "cause" shall
mean: (i) the Executive is convicted of a felony; (ii) a determination is made
by an arbitrator pursuant to Section 20 hereof that the Executive, in carrying
out his duties hereunder, has exhibited willful gross negligence or willful
gross misconduct resulting, in either case, in material harm to any member of
the Consolidated Group; (iii) the Executive is convicted of misappropriating
Consolidated Group assets or convicted of otherwise defrauding the Consolidated
Group; or (iv) a determination is made by an arbitrator pursuant to Section 20
hereof that the Executive has materially breached any provision of Section 8, 9,
or 12 resulting in material harm to any member of the Consolidated Group.
(b) Other "For Cause" Termination.
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(i) The Board may terminate the Employment Period pursuant to
the terms of this Section 11(b) for cause if, as a result of the Executive's
willful personal dishonesty, gross misconduct, breach of fiduciary duty
involving personal profit, gross negligence or failure to perform his duties as
set forth in Section 8, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or material breach of any provision
of this Agreement, there is material harm to any member of the Consolidated
Group. For purposes of this Section 11(b), no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Consolidated Group; provided, however,
that any act or omission to act on the Executive's part in reliance upon an
opinion of counsel to the Company or at the direction of the Board shall not be
deemed to be willful. Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for cause under this Section 11(b) unless and
until there shall have been delivered to him a copy of a certification by the
Board finding, after reasonable notice to the Executive and an opportunity for
him, together with his counsel, to be heard by the Board, that, in the good
faith opinion of the Board, the Executive was guilty of conduct which is deemed
to be cause within the meaning of this Section 11(b)(i) and specifying the
particulars thereof in detail. In the event that the Board delivers such a
certification of termination to the Executive under this Section 11(b)(i), and
the Executive does not elect to challenge such termination in accordance with
Section 11(b)(ii), the Employment Period shall terminate twenty-one (21) days
after the Executive receives such certification.
(ii) The Executive may elect to challenge any termination for
cause by the Company of the Employment Period under Section 11(b)(i) by
providing written notice of such election to the Company within twenty-one (21)
days after the Executive receives the certification of termination. Any such
challenge shall be determined by arbitration to be conducted in Palm Beach
County, Florida, in accordance with the provisions of Section 20 hereof. The
decision of the arbitrator(s) (the "Arbitration Decision") shall be considered
final and binding on the parties. In the event the Executive challenges his
termination for cause, pending the Arbitration Decision the Executive shall
continue to be paid the Base Salary under Section 3, continue to be paid any
bonuses under Sections 4 or 6, and continue to participate in any employee
benefit programs under Section 7 that were being paid or provided immediately
prior to the Board's certification of termination, but the Executive shall not
be required to perform any duties pursuant to Section 8 or to otherwise report
for work to the Company. If the Arbitration Decision determines that the
Executive was properly terminated for cause, the Executive shall have no further
rights from the date of such Arbitration Decision to Base Salary, to any bonuses
under Section 4 or 6, or to participate in any employee benefit programs under
Section 7, and the Employment Period shall be considered to have terminated for
purposes of the non-compete and non-solicit provisions of Section 12 as of the
date of the Arbitration Decision. If the Arbitration Decision determines that
the Executive was improperly terminated for cause, then the Employment Period
shall be deemed to have been terminated without cause under Section 11(e) as of
the date on which the Executive received the certification of termination, and
the Executive shall be entitled to the remedies provided pursuant to that
Section and shall not thereafter be subject to the non-compete and non-solicit
provisions of Section 12.
(c) Death or Disability. The Employment Period shall terminate upon
the death or disability of the Executive. For purposes of this Section 11(c),
"disability" shall mean that, for a period of six (6) months in any twelve-month
period, the Executive is incapable of
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substantially fulfilling the duties set forth in Section 8 because of physical,
mental or emotional incapacity resulting from injury, sickness or disease as
determined by an independent physician mutually acceptable to the Board and the
Executive. Upon any such termination for death or disability, the Company shall
pay the Executive or his legal representative, as the case may be, the Base
Salary under Section 3 through the date of such termination of the Employment
Period, plus any bonus earned but not yet paid under the MIP, any other bonus or
incentive payments earned but not yet paid under any other bonus or incentive
plan under Section 6 and any benefits under Section 7 which have accrued through
such date. In addition, in the case of termination for disability, the Company
shall continue to pay the Executive or his legal representative, as the case may
be, the Base Salary under Section 3 until the Executive begins to receive
payments under the long-term disability policy paid for by the Company pursuant
to Section 7(b)(ii); provided, however, that, in no event, shall the Company
continue to pay the Base Salary for more than ninety (90) days after the date of
such termination for disability. Lastly, for a period of eighteen (18) months
after the date of termination for death or disability, the Company shall
continue to provide medical and dental insurance coverage to the Executive and
his family in the form or forms provided under Section 7(b) immediately prior to
the date of such termination.
(d) Voluntary Termination.
(i) The Executive may, on not less than one hundred eighty
(180) days prior written notice to the Company specifically setting forth the
effective date thereof, terminate the Employment Period prior to the end of the
initial term or any successive term of the Employment Period under Section 2.
Upon any such termination, the Company shall pay the Executive the Base Salary
under Section 3 through the effective date of such termination of the Employment
Period, plus any bonus earned but not yet paid under the MIP, any other bonus or
incentive payments earned but not yet paid under any other bonus or incentive
plan under Section 6 and any benefits under Section 7 which have accrued through
such date.
(ii) The Executive may, at any time, terminate the Employment
Period for Good Reason. For purposes of this Agreement, "Good Reason" means the
assignment to the Executive of any duties inconsistent in any respect with the
Executive's position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
8(a) of this Agreement, or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive; any failure by the Company to comply with any of
the provisions of this Agreement relating to the Executive's compensation, other
than an isolated, insubstantial and inadvertent failure not occurring in bad
faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive; the Company's requiring the Executive to be
based permanently at any office or location more than 50 miles from the office
maintained by the Company at Boca Raton, Florida as of the effective date of
this Agreement, except for travel reasonably required in the performance of the
Executive's responsibilities consistent with practices in effect prior to the
effective date of this Agreement; any purported termination by the Company of
the Executive's employment otherwise than as expressly permitted by this
Agreement; or any other occurrence or action by the Company which materially and
adversely affects the Executive's working conditions or employment with the
Company. Good Reason shall not, however, mean the
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election by either the Company or the Executive not to renew the term of the
Employment Period under Section 2 herof. In the event of a voluntary termination
by the Executive for Good Reason, the Executive shall receive the following
benefits (collectively, the "Severance Benefits"):
1. The Executive shall receive the Base Salary under Section 3
through the date of the termination of his employment, plus any bonus earned but
not yet paid under the MIP, any other bonus or incentive payments earned but not
yet paid under any other bonus or incentive plan under Section 6, and any
benefits under Section 7 which have accrued through such date of termination;
2. The Executive shall continue to receive the Base Salary
provided under Section 3 hereof and the benefits provided under Section 7
hereof, payable in the time and manner specified under those Sections, for the
greater of (A) the remainder of the Employment Period as if a termination had
not occurred, or (B) twenty-four months;
3. The Executive shall receive a prorated portion of the
individual Performance Awards payable to him under the Company's Long Term
Incentive Program, as amended from time to time (the "LTIP"), for each
Performance Period under the LTIP which has begun but has not yet ended as of
the date of termination of his employment, any provision in the LTIP to the
contrary notwithstanding, calculated as if the Executive's actual employment
with the Company had continued through the date which is the later of (A) the
expiration of the Employment Period as if a termination had not occurred, or (B)
twenty-four months from the date of the termination. The payments for each such
Performance Period shall be calculated pursuant to the formula provided in
Section 5.6 of the LTIP, and shall be paid to the Executive in the time and
manner specified in Section 5.10 of the LTIP;
4. The Executive shall receive a prorated portion of the
benefits payable to him under the MIP, any provision in the MIP to the contrary
notwithstanding, calculated as if the Executive's actual employment with the
Company had continued through the date which is the later of (A) the expiration
of the Employment Period as if a termination had not occurred, or (B)
twenty-four months from the date of the termination. The payment shall be
calculated using the Executive's Base Salary as of the date of termination, and
the Target % applicable under the MIP as of the date of termination, without
regard to any changes to the MIP or the formula used to calculate bonuses
thereunder made after the date of termination. For purposes of the calculation,
the Percent Accomplishment under the MIP shall be considered to have been 100%.
Payment shall be made in the time and manner customary under the MIP as of the
date of termination; and
5. Any stock options granted to the Executive by the Company
which are outstanding as of the date of termination shall immediately become
vested in the Executive.
(e) Termination Without Cause.If the Employment Period is terminated
by the Company other than pursuant to Section 11(a), 11(b) or 11(c), the
Executive shall be entitled to receive the Severance Benefits provided in
Section 11(d)(ii) above.
(f) Failure to Extend The Employment Period.
(i) If the Company elects not to extend the term of the
Employment Period as provided under Section 2 of this Agreement without cause,
or if the Executive elects
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not to extend the term of the Employment Period under Section 2 hereof for Good
Reason, and the Executive remains employed with the Company through the
expiration of the term of the Employment Period, the Executive shall be entitled
to receive the Severance Benefits provided in Section 11(d)(ii) above, except
that the benefits payable under Section 11(d)(ii)(2) shall only extend for a
period of six months after the expiration of the Employment Period, and the
benefits payable under Sections 11(d)(ii)(3) and 11(d)(ii)(4) shall be
calculated as if the Executive's employment had continued for six months after
the expiration of the Employment Period.
(ii) If the Company elects not to extend the term of the
Employment Period as provided under Section 2 of this Agreement without cause,
or if the Executive elects not to extend the term of the Employment Period under
Section 2 hereof for Good Reason, and the Employment Period is terminated prior
to the expiration of its term, the Executive's right to benefits, if any, shall
be governed by the relevant provisions of this Section 11 based upon the reason
for such termination of the Employment Period.
(g) Survival. The provisions of this Section 11 shall survive the
termination or expiration of this Agreement, as applicable.
12. Non-Competition and Non-Solicitation.
(a) General. The Executive acknowledges that he has performed
services or will perform services hereunder, and will acquire Information and
access to Materials, that will directly affect the businesses of the
Consolidated Group. Accordingly, the parties deem it necessary to provide
protective non-competition and non-solicitation provisions in this Agreement.
(b) Non-Compete and Non-Solicit. The Executive agrees with the
Company that, during the term set forth in Section 12(c), without the prior
written consent of the Board:
(i) The Executive shall not, directly or indirectly, perform
any services or duties in any capacity, whether as a consultant, independent
contractor, agent, director, officer, manager, supervisor or employee, for any
person or entity engaged in any business in the United States that was engaged
in by any member of the Consolidated Group at any time during the Employment
Period; provided, however, that, for purposes of this Section 12(b)(i), (A) in
no event shall a purely passive personal or family investment of less than five
percent (5%) of the equity of any entity, without more, be construed as the
performance of duties or services for such entity; (B) a business which is first
engaged in by the Consolidated Group after the execution of this Agreement shall
be considered to be a business that was engaged in during the Employment Period
by the Consolidated Group only if and to the extent that the Executive agrees in
writing at the time of the Consolidated Group's commencement or acquisition of
such business that it will be so considered; and (C) after the termination of
the Employment Period, the Executive may become involved with a short-line
freight railroad, if such railroad does not operate track within fifty (50)
miles of track operated by any member of the Consolidated Group.
(ii) The Executive shall not, directly or indirectly, for
himself or for any other person, firm, corporation, partnership, association or
other entity, employ or attempt to
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employ or enter into any contractual arrangement with, any employee or former
employee of any member of the Consolidated Group (whether or not such employment
is full-time or part-time or pursuant to a written contract), other than his
personal secretary, unless such employee or former employee has not been
employed by any member of the Consolidated Group for a period in excess of six
months.
(c) Term. The covenants of the Executive set forth in Section 12(b)
shall apply at all times (i) during the Employment Period, including any period
for which the Executive is receiving the Base Salary and benefits pending an
Arbitration Decision pursuant to Section 11(b), and (ii) in the event of
termination of the Employment Period pursuant to Section 11(a), 11(b) or
11(d)(i), or an election by the Company not to extend the Employment Period
pursuant to Section 2 for cause, or an election by the Executive not to extend
the Employment Period pursuant to Section 2 other than for good reason, for a
period of twelve (12) months after termination of the Employment Period.
13. Injunctive Relief.
(a) General. The covenants of the Executive set forth in Sections 9
and 12 are separate and independent covenants, for which valuable consideration
has been paid, the receipt, adequacy and sufficiency of which are hereby
acknowledged by the Executive, and which have been made by the Executive to
induce the Company to enter into this Agreement. Each of the aforesaid covenants
may be availed of, or relied upon, by the Company in any court of competent
jurisdiction for the basis of injunctive relief, as permitted under Section 20
hereof. The covenants of the Executive set forth in Sections 9 and 12 are
cumulative to each other and to all other covenants of the Executive in favor of
the Company contained in this Agreement. Should any covenant, term or condition
in Section 9 or 12 become or be declared invalid or unenforceable then the
parties request that such unenforceable provision be modified consistent with
the intent of Sections 9 and 12 so that it shall be enforceable as modified.
(b) Survival. The provisions of this Section 11 shall survive the
termination or expiration of this Agreement, as applicable.
14. Entire Agreement. This Agreement, the Stock Option Agreement and the
other documents, plans and instruments contemplated herein represent the entire
understanding and agreement between the parties with respect to the subject
matter hereof, and supersede all other negotiations, understandings and
representations, if any, made by and between such parties.
15. Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
16. Assignments. The Executive shall not assign his rights and/or
obligations hereunder. The Company may assign its rights and/or obligations
hereunder to any person or entity which purchases all or substantially all of
the assets of the Consolidated Group, subject to the Executive's termination
rights under the Change in Control Severance Agreement.
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17. Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns.
18. Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be (as
elected by the person giving such notice) hand delivered by messenger or courier
service or mailed (airmail if international) by registered or certified mail
(postage prepaid), return receipt requested, addressed to:
If to the Executive:
Xxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
and
0000 Xxxxxx Xxxxx Xxxx., X.X.
Xxxx Xxxxx, Xxxxxxx 00000
If to the Company: With a copy to:
RailAmerica, Inc. RailAmerica, Inc.
0000 Xxxxxx Xxxxx Xxxx., X.X. 0000 Xxxxxx Xxxxx Xxxx., X.X.
Xxxx Xxxxx, Xxxxxxx 00000 Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chairman, Compensation Committee Attention: General Counsel
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered on the date
delivered if by personal delivery, or on the date upon which the return receipt
is signed or delivery is refused or the notice is designated by the postal
authorities as not deliverable, as the case may be, if mailed.
19. Waivers. The failure or delay of any party at any time to require
performance by the other party of any provision of this Agreement shall not
affect the right of such party to require performance of that provision or to
exercise any right, power or remedy hereunder, and any waiver by any party of
any breach of any provision of this Agreement shall not be construed as a waiver
of any continuing or succeeding breach of such provision, a waiver of the
provision itself or a waiver of any right, power or remedy under this Agreement.
No notice to or demand on any party in any case shall, of itself, entitle such
party to any other or further notice or demand in similar or other
circumstances.
20. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Palm Beach
County, Florida, in accordance with the Employment Dispute Arbitration Procedure
established by CPR (formerly known as the Center for Public Resources) for
mandatory binding arbitration, except to the
11
extent that the procedures outlined below differ from such rules. The cost and
expenses of the arbitration and of enforcement of any award in any court shall
be borne by the non-prevailing party. If advances are required, each party will
advance one-half of the estimated fees and expenses of the arbitrators. Judgment
may be entered on the arbitrators' award in any court having jurisdiction.
Although arbitration is contemplated to resolve disputes hereunder, either party
may proceed to court to obtain an injunction to protect its rights hereunder,
the parties agreeing that either could suffer irreparable harm by reason of any
breach of this Agreement. Pursuit of an injunction shall not impair arbitration
on all remaining issues.
21. Jurisdiction and Venue. The parties acknowledge that a substantial
portion of the negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in Palm Beach County, Florida, and that,
therefore, without limiting the jurisdiction or venue of any other federal or
state courts, each of the parties irrevocably and unconditionally (a) agrees
that any suit, action or legal proceeding arising out of or relating to this
Agreement which is expressly permitted by the terms of this Agreement to be
brought in a court of law, may be brought in the courts of record of the State
of Florida in Palm Beach County or the court of the United States, Southern
District of Florida; (b) consents to the jurisdiction of each such court in any
such suit, action or proceeding; (c) waives any objection which it or he may
have to the laying of venue of any such suit, action or proceeding in any of
such courts; and (d) agrees that service of any court papers may be effected on
such party by mail, as provided in this Agreement, or in such other manner as
may be provided under applicable laws or court rules in such courts.
22. Enforcement Costs. If any legal action, arbitration or other
proceeding permitted by the provisions of this Agreement to be brought is
actually brought for the enforcement of this Agreement, or because of any
dispute arising out of this Agreement, the ultimately successful or prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and other
expenses, even if not taxable as court costs (including, without limitation, all
such fees, costs and expenses incident to appeals), incurred in that action,
arbitration or other proceeding, in addition to any other relief to which such
party may be entitled.
23. Remedies Cumulative. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
24. Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Delaware without regard to principles of
conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EXECUTIVE RAILAMERICA, INC.
/s/ Xxxx X Xxxxxx By: /s/ Xxxx X. Xxxxx
----------------------------------- ------------------------------------
Xxxx X. Xxxxxx Name: Xxxx. X. Xxxxx
Title: Chairman of Compensation
Committee
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
----------------------------------- ----------------------------------------
Witness Witness
13
