FORM OF EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of
August 1, 1995, is between AMERICOLD CORPORATION, an Oregon
corporation ("Employer" or "Americold"), and _____________
("Employee").
RECITALS
Employer is engaged in the public refrigerated warehouse
business. Employer desires to employ Employee on a full-time basis
as ____________________, and Employee desires to accept the
employment and to perform the duties set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
agreements and conditions hereinafter set forth, it is agreed as
follows:
AGREEMENT
1. Employment. Employer agrees to employ Employee and
Employee agrees to continue employment upon the terms and
conditions hereinafter set forth. Employee represents and warrants
that he knows of no reason why he is not capable of performing his
obligations under this Agreement in accordance with its terms.
2. Term. Subject to the termination provisions in this
Agreement, the term of this Agreement will begin August 1, 1995 and
will terminate on July 31, 1997.
3. Duties. Employee will serve as _______________
_______________ of Employer, with such duties as are associated
with this position, and those other duties as may be assigned to
him from time to time by the President, his designee, or the Board
of Directors of Employer. Employee agrees to use his best efforts
to promote the interests of Employer and to devote his entire
working time, attention and energies to performance of his duties
under this Agreement. Employee shall at all times faithfully and
to the best of his ability perform the duties that may be required
of him by Employer. During the term of this Agreement, Employee
agrees not to be engaged in any other business activity, whether or
not such business activity is pursued for gain, profit or other
pecuniary advantage. However, this Agreement shall not prevent
Employee from attending to his personal investment matters,
provided that such matters do not significantly affect the
performance of Employee's responsibilities under the Agreement or
violate the provisions of the parties' Covenant Not to Compete and
Consulting and Non-Disclosure Agreement (the "Covenant") executed
concurrently with this Agreement.
4. Base Compensation. Subject to Section 7 of this
Agreement, Employee shall receive no less than his present base
compensation of $______ per month, payable in accordance with
Employer's standard payroll procedures for management employees.
The base compensation shall be subject to adjustment on an annual
basis in accordance with Employer's normal compensation practices.
5. Management Incentive Plan. Employee shall be
eligible to participate in the Americold Management Incentive Plan
during his employment, and in any other senior management incentive
programs offered to management as approved by the Compensation
Committee of the Board of Directors. The actual size of any award
under, or the level of Employee's participation in, any such Plan
or program shall be determined in accordance with the terms of the
document(s) governing such Plan or program or, if so provided by
such document, by the person(s), committee or entity responsible
for the administration thereof.
6. Employee Benefits. Employer agrees to provide to
Employee all employee benefits, including insurance benefits,
vacation time and expense reimbursements, as are generally
available to executive officers of Employer, subject to the terms
and conditions of such plans as to eligibility to participate in
and to receive benefits thereunder. In the event Employer requires
Employee to relocate during the term of this Agreement, Employer
agrees to pay Employee's reasonable relocation expenses, including
reasonable and customary closing expenses on a new home in the area
to which Employee is relocated and reasonable expenses of moving
normal household goods from the Portland, Oregon area upon
submission of evidence of such expenses in a form satisfactory to
Employer.
7. Termination.
(a) For Cause. Employer may terminate Employee's
employment at any time for cause with immediate effect, upon
delivering written notice thereof to Employee. For purposes of
this Agreement, "for cause" shall include: (i) negligence, willful
misconduct or incompetence in the performance of Employee's duties;
(ii) embezzlement, theft, larceny, material fraud or other acts of
dishonesty (including the unauthorized disclosure of confidential
information); (iii) the continued failure of Employee to render
services in accordance with this Agreement; (iv) conviction of or
entrance of a plea of guilty or nolo contendere to a felony or
other crime that has a material adverse effect on Employee's
ability to carry out his duties under this Agreement or upon the
reputation of Employer; (v) conduct involving moral turpitude; or
(vi) material insubordination or repeated insubordination after
warning by Employer. Upon termination for cause, Employer's sole
and exclusive obligation will be to pay Employee his base
compensation earned through the date of termination, plus any
employee benefits earned through the date of termination in
accordance with the applicable plans. Employee shall not be
entitled to any compensation after the date of such termination.
(b) Without Cause. Employer may terminate
Employee's employment at any time without cause upon written
notice. Upon termination without cause, Employer's sole and
exclusive obligation will be to pay Employee a monthly payment
equal to Employee's last monthly payment for 24 months after
termination of employment, payable on the first day of each month,
plus any unpaid base compensation and any employee benefits earned
through the date of termination in accordance with the applicable
plans. Employee shall not be entitled to any other compensation or
benefits after the date of such termination, except as provided
under any applicable management incentive plans or stock option
agreements.
(c) Upon Death. In the event of Employee's death
during the term of this Agreement, Employer's sole and exclusive
obligation under this Agreement will be to pay Employee's widow, or
to his estate, if he is not survived by his wife, Employee's base
compensation through the last day of the month in which his death
occurs, plus any employee benefits payable in respect of Employee
in accordance with the applicable plans.
(d) Upon Disability. This Agreement shall
terminate, at Employer's option, upon Employee's total disability.
Employee's total disability means his inability to perform his
duties under this Agreement by reason of illness or accident for a
period of six consecutive months. Upon termination by reason of
Employee's disability, Employer's sole and exclusive obligation
will be to pay Employee his base compensation, plus any employee
benefits earned payable in accordance with the applicable plans.
(e) By Employee. Employee may terminate this
Agreement at any time upon giving 30 days' advance written notice
to Employer. In the event Employee voluntarily terminates
employment with Employer without "good reason" during the term of
this Agreement, Employer shall pay Employee his salary through the
date of termination and shall further pay Employee a monthly
payment equal to Employee's last month's payment for a period of 12
months after termination of employment or until Employee finds
alternative employment consistent with Employee's obligations under
the Covenant, whichever occurs first, and Employee shall not be
entitled to any further compensation under this Agreement after the
date of termination; provided, however, if Employee voluntarily
terminates employment with Employer for "good reason," Employer
shall be deemed to have terminated Employee's employment without
cause under paragraph 7(b) above. "Good reason" shall mean the
occurrence of any one or more of the following:
(i) A material adverse change in the nature or
scope of the Employee's title, responsibilities, authorities
or duties from those applicable as of the date of this
Agreement;
(ii) Except as otherwise provided below in Section
7(f), a change in the location of Employee's employment by
Employer by more than 30 miles, if that change occurs as a
result of, or in connection with, a "Change in Control" of
Employer. For purposes of this Agreement, the phrase "Change
in Control" means any transaction in which:
(A) any "person," including a "group" as
determined in accordance with Section 13(d)(3) of the
Securities Exchange Act of 1934 (the "Exchange Act"), but
excluding any subsidiary of Employer or any employee
benefit plan maintained by Employer or any such
subsidiary, is or becomes the beneficial owner, directly
or indirectly, of securities of Employer representing
more than 50 percent of the combined voting power of
Employer's then outstanding securities;
(B) any merger or other business combination,
sale of assets or contested election, or any combination
of the foregoing transactions occurs, regardless of
whether Americold is the surviving entity, unless the
only parties to such merger are Americold and one or more
of its direct or indirect majority-owned subsidiaries or
any one or more corporations which owns, directly or
indirectly, a majority interest in Americold;
(C) a tender offer or exchange offer is made
and consummated for the ownership of securities of
Employer representing more than 50 percent of the
combined voting power of Employer's then outstanding
voting securities; or
(D) Employer transfers substantially all of its
assets to another corporation which is not a wholly-owned
subsidiary of Employer;
(iii) A material diminution in the aggregate value
of the employee benefits and perquisites available to Employee
as compared to the aggregate value of the employee benefits
and perquisites to which he was entitled as of the date of
this Agreement; or
(iv) A failure by Employer to comply with any
material provision of this Agreement which has not been cured
within 30 days after notice of such noncompliance has been
given by Employee to Employer.
(f) Limitation on Good Reason. Notwithstanding
anything else contained in paragraph 7(e) to the contrary, if a
majority of the employees of Employer who have employment
agreements with Employer which have provisions substantially
similar to those contained in this paragraph 7 consent in writing
to be relocated following the occurrence of a Change of Control [to
the same location that Employer has requested Employee to relocate
to], Employee shall not be treated as having "good reason" to
terminate his employment hereunder by reason of the relocation of
Employee's principal place of business.
8. Assignment. This Agreement is a personal contract
and, except as specifically set forth herein, the rights and
interests of Employee herein may not be sold, transferred or
assigned. The rights and obligations of Employer shall be binding
upon and run in favor of the successors and assigns of Employer.
In the event of any attempted assignment or transfer of rights
hereunder contrary to the provisions hereof, Employer shall have no
further liability for payments hereunder.
9. Waiver. The waiver by Employer of the breach of any
provision of this Agreement by Employee shall not operate or be
construed as a waiver of any subsequent breach by Employee.
10. Modification. No amendment, modification or
discharge of this Agreement shall be valid unless it is in writing
and duly executed by the parties.
11. Construction. This Agreement shall be construed in
accordance with and governed by the laws of the state of Oregon.
12. Entire Agreement. Except as provided in the
Covenant of this same date, this is a fully integrated agreement
which contains the entire agreement of the parties and supersedes
any and all prior agreements and understandings between the
parties. There are no promises or representations made on behalf
of Employer to induce Employee to enter into this Agreement which
are not set forth herein.
13. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be given in
writing and shall be sufficient if personally delivered or mailed,
postage prepaid by same-day or overnight mail as follows:
If to Employer: President
Americold Corporation
0000 XX Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
With a copy to: Xxxxx X. Xxxxx
Tonkon, Xxxx, Xxxxx,
Marmaduke & Booth
1600 Pioneer Tower
000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
If to Employee: _______________________
Americold Corporation
0000 XX Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
14. Severability. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or
enforceability of any other provision.
IN WITNESS WHEREOF, this Agreement has been signed by
Employer and Employee.
EMPLOYER
AMERICOLD CORPORATION
By:
EMPLOYEE
By:
4787\294\112120
SCHEDULE TO EXHIBIT 10.2
Form of Employment Agreement
The Employment Agreements between Americold Corporation
and the employees named below dated August 1, 1995 are identical
in all material respects other than with respect to their
employment position and monthly base compensation which are as
follows for each employee:
Monthly Base
Name of Employee Position Compensation
Xxxx X. Xxxxx Senior Vice President $ 13,666.66
and Chief Financial
Officer
Xxxx X. XxXxxxx Executive Vice $ 14,166.66
President
F. Xxxxxxx Xxxx Executive Vice $ 13,166.67
President
J. Xxx Xxxx Senior Vice President, $ 12,500.00
Logistics
111966