Exhibit 10.1
EMPLOYMENT AGREEMENT
dated as of March 20, 2009,
between Pacer International, Inc., a Tennessee corporation (the
“ Company ”), and Adriene B. Bailey (the “
Executive ”).
The Company and the Executive are
entering into this Agreement to set forth the terms of the
Executive’s employment with the Company. Accordingly, in
consideration of the mutual 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 and the Executive, the Company and the Executive hereby
agree as follows:
Section 1. Duties . On
the terms and subject to the conditions contained in this
Agreement, the Executive will initially be employed by the Company
as Wholesale Intermodal Services President. The Executive shall
perform such duties and services on behalf of the Company and its
Affiliates (as defined in Section 24(b) below) consistent with
such title and position as may reasonably be assigned to the
Executive from time to time by the Company’s Board of
Directors (the “ Board ”) or the Chairman of the
Board or other more senior officers of the Company. The
Executive’s title and position and related duties and
services may be changed during the course of Executive’s
employment by the Board or the Chairman of the Board or other more
senior officers of the Company.
Section 2. Term . The
Executive’s employment hereunder shall be for the period (the
“ Employment Period ”) commencing on the date
hereof (the “ Commencement Date ”) and ending on
the effective date of the termination of such employment pursuant
to and in accordance with the applicable provisions of this
Agreement. Upon such termination of the Executive’s
employment hereunder, the Executive (or, if applicable, the
Executive’s beneficiaries or estate) shall be only entitled
to those rights and benefits provided in Section 8(a) or
Section 8(b), as applicable to such termination, subject to
compliance with those continuing covenants and agreements set forth
herein.
Section 3. Time to be
Devoted to Employment . During the Employment Period, the
Executive will devote substantially all of the Executive’s
working energies, efforts, interest, abilities and time exclusively
to the business and affairs of the Company and its Affiliates. The
Executive will not engage in any other business or activity which,
in the reasonable judgment of the Board, would cause a conflict of
interest, affect job performance or otherwise conflict or interfere
in any material respect with the Executive’s performance of
his duties as set forth herein, whether or not such activity is
pursued for gain, profit or other pecuniary advantage.
Section 4. Base Salary;
Bonus; Benefits .
(a) During the Employment Period,
the Company (or any of its Affiliates) shall pay the Executive a
minimum annual base salary (the “ Base Salary ”)
of $300,000 payable in such installments (but not less often than
monthly) as is generally the policy of the Company with respect to
the payment of regular compensation to its executive officers. The
Base Salary may be increased from time to time in the sole
discretion of the Board. The Executive will also be
entitled
to vacation under the
Company’s vacation policy, which shall be no less than four
(4) weeks per year occurring during the Employment Period.
Such vacation shall accrue and may be taken in accordance with the
Company’s policy in effect from time to time with respect to
its executive officers generally, subject to the Company’s
right at any time and from time to time to amend, modify, change or
terminate such vacation policy in any respect. The Executive will
also be entitled to such other benefits as may be made available to
other executive officers of the Company generally, including
participation in such health, life and disability insurance
programs and retirement or savings plans, if any, as the Company
may from time to time maintain in effect, in all cases subject to
the Company’s right at any time and from time to time to
amend, modify, change or terminate in any respect any of its
employee and other benefit plans, policies, or programs.
(b) During the Employment Period,
the Executive shall be entitled to participate in the
Company’s performance bonus plan or program as adopted by
Board and in effect from time to time with respect to similarly
situated executives of the Company and its subsidiaries (the
“ Bonus Plan ”), and to receive such performance
bonus thereunder (if any) with respect to each fiscal year of the
Company occurring during the Employment Period, subject in all
cases to the terms and conditions of this Agreement and such Bonus
Plan. The amount of such performance bonus, if any, that may be
awarded and payable to the Executive hereunder with respect to any
such fiscal year shall range up to fifty percent (50%) of the
Base Salary in effect for such fiscal year as determined by the
Board (or committee thereof) in its sole discretion based on and to
the extent of the achievement or satisfaction of such targets,
goals and conditions as may be provided in such Bonus Plan for such
fiscal year, and as the Board (or committee thereof) may otherwise
determine. Such targets, goals and conditions may include
(i) business, financial, operating and/or other performance
measures applicable to (A) the Company and its Affiliates
taken as a whole and (B) those business segment(s) or
divisions(s) of the Company and its Affiliates for and with respect
to which the Executive is responsible or has authority (
e.g. , Intermodal Segment) and (ii) such personal and
individual performance criteria as may be determined by the Board
(or committee thereof) taking into account the Executive’s
duties and responsibilities to the Company and its Affiliates for
the period in question. The performance bonus awarded and payable
to the Executive under such Bonus Plan with respect to any such
fiscal year (including any pro rated amount payable pursuant to the
following provisions of this Section 4(b)) shall be paid at
such time or times and in such manner as performance bonuses are
paid to the other executive officers of the Company generally. If
the Executive’s employment with the Company is terminated
without “cause” pursuant to Section 7(b) below,
the Executive will be entitled to receive that portion of the bonus
payable for the fiscal 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. If the Executive’s employment with the Company
is terminated for any reason other than without “cause”
pursuant to Section 7(b) below, neither the Company nor any of
its Affiliates will be obligated to pay the Executive any bonus
with respect to the fiscal year of the Company in which such
termination occurred or thereafter. The Executive’s rights to
participate in, and to receive a performance bonus under, the
Company’s Bonus Plan in effect for any given fiscal year
shall be subject to the Company’s right at any time and from
time to time to amend, modify, change or terminate such Bonus Plan
in any respect. In the event of a conflict between this Agreement
and such Bonus Plan, this Agreement shall control.
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Section 5. Reimbursement of
Expenses . During the Employment Period, the Company shall
reimburse the Executive in accordance with Company policy for all
reasonable and necessary traveling expenses and other disbursements
incurred by the Executive for or on behalf of the Company in
connection with the performance of the Executive’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 Executive is
incapacitated or disabled by accident, sickness or otherwise (a
“ Disability ”) so as to render the Executive
mentally or physically incapable of performing the services
required to be performed by the Executive under this Agreement for
any period of 90 consecutive days or for an aggregate of 180 days
in any period of 360 consecutive days, the Company may, at any time
thereafter, at its option, terminate the Executive’s
employment under this Agreement immediately upon giving the
Executive written notice to that effect. In the event of the
Executive’s death, the Executive’s employment will be
deemed terminated as of the date of death.
Section 7. Termination
.
(a) The Company may terminate the
Executive’s employment hereunder at any time for
“cause” by giving the Executive written notice of such
termination, containing reasonable specificity of the grounds
therefor. For purposes of this Agreement, “cause” shall
mean (i) willful misconduct with respect to the business and
affairs of the Company or any of its Affiliates, (ii) willful
neglect of the Executive’s duties or the failure to follow
the lawful directions of the Board or more senior officers of the
Company to whom the Executive reports, including the violation of
any material policy of the Company or of any of its Affiliates that
is applicable to the Executive, (iii) the material breach of
any provision of this Agreement or any other written agreement
between the Executive and the Company or any of its Affiliates and,
if such breach is capable of being cured, the Executive’s
failure to cure such breach within 30 days of receipt of written
notice thereof from the Company, (iv) the Executive’s
commission of a felony, (v) the Executive’s commission
of an act of fraud or financial dishonesty with respect to the
Company or any of its Affiliates or (vi) any conviction of the
Executive 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.
(b) The Company may terminate the
Executive’s employment hereunder at any time without
“cause” by giving the Executive written notice of such
termination, which termination shall be effective as of the date
set forth in such notice, provided that such date shall not be
earlier than the day on which such notice is delivered to Executive
(determined pursuant to Section 16(b) below).
(c) The Executive may terminate his
employment hereunder at any time for any or no reason by giving the
Company written notice of such termination, which termination shall
be effective as of the date set forth in such notice, provided that
such date shall not be earlier than the day on which such notice is
delivered to the Company (determined pursuant to Section 16(b)
below).
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Section 8. Effect of
Termination .
(a) Upon the effective date of a
termination of the Executive’s employment under this
Agreement for any reason other than a termination by the Company
without cause pursuant to Section 7(b), neither the Executive
nor the Executive’s beneficiaries or estate shall have any
further rights under this Agreement or any claims against the
Company or any of its Affiliates arising out of this Agreement,
except the right to receive, within 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, computed on a pro rata basis
to the effective date of such termination;
(ii) reimbursement for any expenses
incurred by the Executive up to the effective date of such
termination of employment and with respect to which the Executive
shall not have theretofore been reimbursed, as provided in
Section 5; and
(iii) the unpaid portion of any
amounts earned by the Executive prior to the effective date of such
termination pursuant to any employee benefit plan or program in
which the Executive participated during the Employment Period
(including any accrued and unused or unpaid vacation benefits that
may be earned by or due to the Executive as of the effectiveness of
such termination in accordance with the Company’s policy in
effect at the effective time of such termination); provided
, however , that the Executive shall not be entitled to
receive any benefits under any such employee benefit plan or
program that have accrued during any period if the terms of such
plan or program require that the beneficiary be employed by the
Company as of the end of any period ending on or after the
effective date of such termination.
(b) Upon termination of the
Executive’s employment under this Agreement by the Company
without cause pursuant to Section 7(b), neither the Executive
nor the Executive’s beneficiaries or estate shall have any
further rights under this Agreement or any claims against the
Company or any of its Affiliates arising out of this Agreement,
except the right to receive the following amounts and benefits
within 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); provided ,
however , that in the case of clauses (ii) and
(iii) below, the Executive is not in breach of any provision
of this Agreement surviving such termination and does not engage in
any activity or conduct proscribed by Section 9 or
Section 10 (regardless of the extent to which such Section may
be enforced under applicable law):
(i) the payments, if any, referred
to in Section 8(a) above;
(ii) continued payment of an annual
amount equal to the Base Salary as in effect immediately prior to
the effective date of such termination for twelve (12) months
following the effective date of such termination (the “
Severance Period ”), payable during the Severance
Period in such manner as the Base Salary would have been payable
pursuant to Section 4(a) but for such termination;
and
(iii) the payment of any pro rata
bonus (or portion thereof), if any, awarded and payable to the
Executive pursuant to and in accordance with Section 4(b) with
respect to the fiscal year in which such termination occurs, to be
paid when and as provided in such Section 4(b).
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(c) Without limiting any other
provision of this Agreement, if the Executive dies on or after the
effective date of the termination of the Executive’s
employment hereunder, the Executive’s heirs, beneficiaries or
estate, as their respective interests may appear (but without
duplication), shall be entitled to receive or continue to receive
those benefits that would otherwise have been due and payable to
the Executive pursuant to Section 8(a) above or
Section 8(b) above, as applicable.
(d) In addition to, and not by way
of limitation of, any other provision of this Agreement, upon the
effective date of the termination of the Executive’s
employment hereunder, the Executive shall surrender and deliver to
the Company (i) all computers, cell phones, office equipment,
credit cards, charge cards and other tangible property of or
belonging to or issued in the name of the Company or any of its
Affiliates, (ii) all membership cards for memberships
maintained by or in the name of the Company or any of its
Affiliates, (iii) all passwords, access codes, documents,
records, and files (including all copies thereof, regardless of the
form or media in which the same exist or are stored) in the
Executive’s possession and belonging or relating to the
Company or any of its Affiliates (except that the Executive may
retain one copy thereof for personal archive purposes, subject to
the other terms and conditions of this Agreement, including
Section 9), and (iv) any and all other personal property
in the Executive’s possession belonging to the Company or any
of its Affiliates.
Section 9. Disclosure of
Information .
(a) From and after the date hereof,
the Executive shall not at any time disclose, divulge, furnish or
make accessible to any Person any Confidential Information (as
hereinafter defined) heretofore acquired or acquired during the
Employment Period for any reason or purpose whatsoever (provided
that nothing contained herein shall be deemed to prohibit or
restrict the Executive’s right or ability to disclose,
divulge, furnish or make accessible any Confidential Information
(i) to any officer, director, employee, Affiliate or
representative of the Company, or (ii) to any other Person as
required in connection with the performance of the
Executive’s duties under and in compliance with this
Agreement, or as required by law or judicial process), nor shall
the Executive make use of any Confidential Information for the
Executive’s own purposes or benefit or for the purposes or
benefit of any other Person except the Company and its Affiliates.
The covenant contained in this Section 9 shall survive the
termination or expiration of the Employment Period and any
termination of this Agreement.
(b) For purposes of this Agreement,
the term “ Confidential Information ” means
(i) the Intellectual Property Rights (as hereinafter defined)
of the Company and its Affiliates and (ii) all other
information of a proprietary or confidential nature relating to the
Company or any Affiliate thereof, or the business or assets of the
Company or any such Affiliate, including: books and records; agent
and independent contractor lists and related information; customer
lists and related information; vendor lists and related
information; supplier lists and related information; employee and
personnel lists, policies and related information; contract terms
and conditions (including those with customers, suppliers, vendors,
independent contractors and agents, and present and former
employees); terms and conditions of permits, orders, judgments and
decrees;
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wholesale, retail and distribution
channels; pricing information, cost information, and pricing and
cost structures and strategies; marketing, product development and
business development plans and strategies; management reports;
financial statements, reports, schedules and other information;
accounting policies, practices and related information; business
plans, strategic plans and initiatives, forecasts, budgets and
projections; and shareholder, board of directors and committee
meeting minutes and related information; provided ,
however , that Confidential Information shall not include
(A) information that is g
