This
Employment Agreement, dated as of April 6, 2009 (the
“Effective Date”) is by and between The Greenbrier
Companies, Inc., an Oregon corporation (the “Company”),
and Alejandro Centurion (“Employee”).
A. Employee
currently serves as the President of Greenbrier Manufacturing
Operations and Chief Executive Officer of Gunderson LLC, a
subsidiary of the Company.
B. The
Company desires to obtain the continued services of Employee in
that capacity and to provide for benefits in the event of
termination of Employee’s employment following a change of
control of the Company. Employee is willing to serve the Company in
such capacity upon the terms and subject to the conditions set
forth in this Agreement.
THEREFORE,
in consideration of the mutual covenants herein contained, the
parties agree as follows:
1.1 Employment
of Employee . The Company agrees to employ Employee, and
Employee agrees to serve, as the Company’s President of
Greenbrier Manufacturing Operations during the Term and upon the
conditions set forth in this Agreement.
1.2
Responsibilities . Employee shall report to the President
and Chief Executive Officer (“CEO”) of the Company. He
shall be responsible for the duties customarily performed by, and
shall possess the powers and exercise the responsibilities
customary of, the position set forth in Section 1.1. Employee
agrees to abide by all the policies, practices and rules of the
Company.
1.3 Extent of
Duties . Employee shall devote his reasonable full-time
energies and efforts exclusively in furtherance of the business of
the Company and its affiliates and shall not be engaged in any
other business activity; provided, that nothing in this Agreement
shall preclude Employee from serving as a director or member of a
committee of any company or organization, the business of which
does not conflict or compete with the business of the Company or
its affiliates, or from engaging in charitable, community and
political activities, or investing his personal assets in
activities in which his participation is that of an
investor.
1.4
Location . Employee shall travel to the Company’s
North American manufacturing facilities as reasonably required to
perform his duties hereunder. Notwithstanding the foregoing, the
Company shall not require Employee to be based at any office that
is located more than 35 miles from where Employee’s office is
located as of the date of this Agreement, during the Term of this
Agreement. If the Company should require Employee to relocate to
an
Employment Agreement
Page 1
office located
more than 35 miles from his current location as a condition of
continuing his employment with the Company and Employee declines to
relocate, then Employee’s termination of employment shall be
deemed a termination by the Company without Cause, and Employee
shall be entitled to severance benefits in accordance with
Section 7.1 of this Agreement.
2.1 Term .
The term of this Agreement (the “Term”) shall commence
on the Effective Date and shall continue for a period of two years
from that date, unless such Term is renewed as provided for in
Section 2.2.
2.2 Renewal
. On the date that is one year from the Effective Date of this
Agreement, and on each successive anniversary of that date (the
“Anniversary Date”) the Term shall be automatically
renewed and extended for one additional year unless, within
90 days prior to such Anniversary Date, the Company or
Employee provides written notice to the other party that the Term
shall not be so renewed and extended. Employee may, upon not less
than 60 days’ written notice to the Company, elect to
treat the Company’s notice of non-renewal of this Agreement
as a notice of termination of Employee’s employment by the
Company other than for Cause. If Employee makes such an election,
then (a) Employee shall not be obligated to perform services
for the Company after the expiration of such 60 days’
notice period, and (b) Employee shall be entitled to the
severance benefits provided for in Section 7.1.
3.
COMPENSATION AND BENEFITS
3.1 Base
Salary . The Company shall pay Employee a Base Salary, which
shall be $285,000.00 per year as of the Effective Date, and shall
be adjusted annually by the CEO. The Base Salary shall be payable
in accordance with the Company’s usual and customary payroll
practices, but no less frequently than monthly
installments.
3.2 Annual
Bonus . The Company shall pay Employee an Annual Bonus each
year during the Term in an amount to be determined by the CEO,
based on achievement of performance goals established or approved
by the CEO, all in consultation with the Compensation Committee of
the Company’s Board of Directors (the
“Committee”). Employee’s target Annual Bonus
amount shall equal 50 percent of Employee’s annual Base
Salary, but the actual amount of Employee’s Annual Bonus for
any year may be an amount less than, greater than, or the same as
the target amount. Such Annual Bonus shall be paid to Employee in
cash (subject to normal withholding and payroll deductions) within
120 days following the end of the fiscal year in which such
Annual Bonus shall be earned.
3.3 Employee
Benefits . Employee shall be entitled to participate in all
employee benefit plans or programs and to receive all benefits for
which salaried employees of the Company generally are eligible, now
or hereafter established and maintained by the Company, to the
extent permissible under the general terms and provisions of such
plans or programs and in accordance with the provisions thereof.
Such employee benefits currently include, but are not limited to,
group medical, prescription drug, dental, vision, and life
insurance, and participation in the Company’s 401(k) plan and
employee stock purchase plan. Notwithstanding the
Employment Agreement
Page 2
foregoing,
nothing in this Agreement shall preclude the amendment or
termination of any such plan or program, on the condition that such
amendment or termination is applicable generally to all senior
officers of the Company or any subsidiary or affiliate of the
Company.
3.4 Additional
Life Insurance . In addition to the employee benefits described
in Section 3.3, the Company shall obtain and/or keep in force
life insurance coverage for Employee in the face amount of not less
than $1,000,000, for as long as Employee is employed by the
Company. The policy currently in force that satisfies the
requirements of this Section 3.4, and any successor or
replacement for such policy, is referred to as the
“Northwestern Policy.” The Northwestern Policy shall be
structured such that the after-tax cash surrender value of the
policy shall be not less than $200,000 as of the date Employee
attains age 62. If Employee’s employment terminates as a
result of a voluntary termination by Employee, the Company shall
surrender to Employee the Company’s rights to the Company
portion of the cash surrender value under the Northwestern Policy.
If Employees’ employment terminates as a result of a
termination by the Company without Cause or following a Change in
Control, the Company shall continue to pay the premiums for the
Northwestern Policy for a period of two years following the Date of
Termination, as provided for under Section 7.1(b) or
Section 8.1(b), as applicable.
3.5 Target
Benefit Program . The Employee shall participate in the
Greenbrier Leasing Corporation Manager Owned Target Benefit Plan
(the “Target Benefit Plan”) or any successor or
replacement plan of a similar type that the Company or its
affiliates may adopt, in the same manner as the other similarly
situated Executive Officers.
3.6 Equity
Based Compensation Programs . Employee shall be eligible to
participate in the Company’s restricted stock or options
programs, and shall receive such awards as may be determined by the
Committee from time to time.
3.7
Vacation . During the Term, Employee shall be entitled to
four weeks of paid vacation during each fiscal year of the Company,
to be taken at times which do not unreasonably interfere with
performance of Employee’s duties. Any unused portion of such
vacation may not be carried forward from year-to-year by Employee,
consistent with the Company’s general policy for other
salaried employees.
3.8 Use of
Automobile . Employee shall be eligible to participate in the
Company car program in the same form as is available to other
Executive Officers.
3.9 Business
Expenses . The Company shall pay or reimburse Employee for all
reasonable travel or other expenses incurred by Employee in
connection with the performance of his duties and obligations under
this Agreement, subject to Employee’s presentation of
appropriate vouchers in accordance with such procedures as the
Company may from time-to-time establish for senior officers and to
preserve any deductions for federal income taxation purposes to
which the Company may be entitled.
Employment Agreement
Page 3
4.
CONFIDENTIAL INFORMATION
Employee
acknowledges that a substantial portion of the information
pertaining to the affairs, business, clients, or customers of the
Company or any of its affiliates (any or all of such entities
hereinafter referred to as the “Business”), as such
information may exist from time to time, is confidential
information and is a unique and valuable asset of the Business,
access to and knowledge of which are essential to the performance
of Employee’s duties under this Agreement. Employee agrees
not to use or disclose any confidential information during the Term
or thereafter other than in connection with performing
Employee’s services for the Company in accordance with this
Agreement (except such information as is required by law to be
divulged to a government agency or pursuant to lawful process), or
make use of any such confidential information for his own purposes
or for the benefit of any person, firm, association or corporation
(except the Business) and shall use his reasonable efforts to
prevent the unauthorized disclosure of any such confidential
information by others. As used in this Section 4, the term
“confidential” shall not include information which, at
the time of disclosure or thereafter, is generally available to and
known by the public, other than as a result of a breach of this
Agreement by Employee.
5. COVENANT
NOT TO COMPETE
In
consideration of payment by the Company of the severance payment
provided for in Section 7 of this Agreement, Employee agrees
that during his employment and, in the event that Employee
voluntarily terminates his employment with the Company, for a
period of one year after such termination of employment, Employee
will not directly or indirectly own (as an asset or equity owner),
or be employed by or consult for, any business in direct
competition with the Company in the same product or service lines
in which the Company is engaged at the time Employee terminates his
employment; provided that ownership of one percent (1%) or less of
the outstanding stock of a publicly traded corporation will not be
deemed to be a violation of this Agreement.
Employee agrees
that the restrictions set forth in Section 5 are reasonable
and necessary to protect the goodwill of the Company. If any of the
covenants set forth therein are deemed to be invalid or
unenforceable based on the duration or otherwise, the parties
contemplate that such provisions shall be modified to make them
enforceable to the fullest extent permitted by law. In the event of
a breach or threatened breach by Employee of the provisions set
forth in Sections 4 or 5, Employee acknowledges that the
Company will be irreparable harmed and that monetary damages shall
be an insufficient remedy to the Company. Therefore,
notwithstanding the arbitration provisions of Section 9.1,
Employee consents to enforcement of Sections 4 or 5, by means
of temporary or permanent injunction and other appropriate
equitable relief in any competent court, in addition to any other
remedies the Company may have under this Agreement or
otherwise.
Employment Agreement
Page 4
7.1 Effect of
Termination of Employment . If, during the Term, the Company
terminates Employee’s employment for any reason other than
“Cause” (as defined in Section 7.2), or other than
in the event of a Change of Control (as defined in
Section 8.2):
(a) The
Company shall pay Employee a lump sum severance payment equal to
the sum of: (i) an amount equal to two times Employee’s
Base Salary as in effect immediately preceding the date of
Employee’s termination of employment, plus (ii) an
amount equal to two times the Average Bonus. “Average
Bonus” shall mean the average of the two most recent annual
bonuses received by the Employee prior to the year in which his
termination of employment occurs. The Company may condition the
receipt of the severance payment provided for in this
Section 7.1 on Employee having first provided to the Company a
signed, comprehensive release of claims against the Company and its
affiliates as of the date of termination, in a form approved by the
Company. Such severance payment shall be paid within 30 days
following the date Employee signs the release of claims required
under this Section 7.1.
(b) For
a period of two years following the Date of Termination (as defined
in Section 8.2(d)), the Company shall continue to provide or pay
the cost of all employee
|
