Exhibit 10.1
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
Second Amended and Restated Employment Agreement (“ Second
Restated Agreement ”), dated as of January 8, 2008
is by and between The Greenbrier Companies, Inc., an Oregon
corporation (“ Company ”), and Larry G. Brady
(“ Employee ”).
RECITALS
A. Prior to
January 10, 2006, Employee served as Senior Vice President and
Chief Financial Officer of Company.
B. Effective
January 10, 2006, Employee resigned as an officer of Company
and Employee and Company entered into an Employment Agreement dated
as of January 10, 2006 (“ 2006 Agreement ”)
pursuant to which Employee has provided transition and other
services to the Company.
C. Effective
March 2, 2007 Employee returned to the positions of Senior
Vice President and Chief Financial Officer of the Company (“
SVP / CFO ) pursuant to the terms of an Amended and
Restated Employment Agreement dated as of March 2, 2007
(“ 2007 Agreement ”). Employee served as SVP/CFO
pursuant to the 2007 Agreement until January 8, 2008, as of
which date a successor was appointed and Employee resigned from
those positions.
D. Company and Employee
desire to amend and restate the 2007 Agreement in its entirety, in
the form of this Second Amended and Restated Agreement.
THEREFORE,
in consideration of the mutual covenants herein contained, the
parties agree as follows:
1.
Amendment and Restatement of 2007 Agreement.
The
2007 Agreement is hereby amended, restated and superseded in its
entirety in the form of this Second Restated Agreement.
Notwithstanding the preceding sentence, the Release of Claims
executed by Employee in favor of Company on or about
January 10, 2006 shall continue in force, and be unamended, as
of the date of such Release of Claims.
2.
Position with Company.
Effective
January 8, 2008, Employee shall be employed as a non-officer
employee of the Company to perform such duties as may be assigned
from time-to-time by the Chief Executive Officer of the Company
(“ CEO ”).
3.
Term of Employment.
3.01 The term of employment
of Employee hereunder shall consist of an Initial Term and an
Extended Term.
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3.02 Initial Term. The
Initial Term shall commence on January 8, 2008 and shall
continue to and including August 31, 2008.
3.03 Extended Term. The
Extended Term shall commence immediately upon expiration of the
Initial Term and shall continue for a period of 60 months from
and after that date. During the Extended Term, Company shall employ
Employee to provide services on an as-needed basis as requested by
the CEO. Employee shall not be required to work in excess of 20
hours per month during the Extended Term, without the consent of
Employee. Employee may work from his home unless the reasonable
business needs of Company require his presence at a specific
location.
4.
Compensation, Benefits and Expenses.
As
compensation for his services hereunder, Employee shall receive,
and be eligible to be participate in, as applicable, the following
compensation and benefit programs:
4.01 Base Salary During Initial
Term. During the Initial Term, Company shall pay Employee a
base salary at an annualized rate of $285,000 per year, payable in
bi-monthly installments in accordance with Company’s regular
payroll practices.
4.02 Base Salary During Extended
Term. During the Extended Term, Company shall pay Employee a
base salary at an annualized rate of $120,000 per year, payable in
bi-monthly installments in accordance with Company’s regular
payroll practices.
4.03 Cash Bonus Program.
During the Initial Term and Extended Term, Employee shall be
eligible to receive annual discretionary cash bonus compensation in
accordance with Company’s practice applicable to other senior
employees of Company.
4.04 Incentive Stock Award.
Upon completion of the Initial Term, Company management will
recommend to the Compensation Committee of the Company’s
Board of Directors that the Committee consider an award to Employee
of restricted stock under the Company’s 2005 Stock Incentive
Plan (the “Plan”) having an aggregate fair market value
on the date of such award, determined in accordance with the Plan,
in the range of $150,000, and vesting in equal annual installments
over a period of two years.
4.05 Benefits. During the
Initial Term and Extended Term, Employee shall be entitled to
participate in all employee benefit plans or programs, and to
receive all benefits, for which senior officers of 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 benefits. Notwithstanding the foregoing,
nothing in this Second Restated 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. Company will provide Employee with an
automobile for
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use in
fulfilling his responsibilities under this Second Restated
Agreement and shall provide or reimburse Employee for related
insurance, repairs and operating costs.
4.06 Expenses. 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 Second Restated 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.
5.
Confidential Information
Employee
acknowledges that a substantial portion of the information
pertaining to the affairs, business, clients, or customers of
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 Second Restated Agreement.
Employee agrees not to use or disclose any confidential information
during the Initial Term or the Extended Term, or thereafter, other
than in connection with performing Employee’s services for
Company in accordance with this Second Restated 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 5, 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
Second Restated Agreement by Employee.
6.
Covenant Not To Compete
In
consideration of payment by the Company of the Severance Payment
provided for in Section 8 of this Agreement, Employee agrees
that, during the Initial Term and the Extended Term, Employee will
not, without prior written consent of Company, directly or
indirectly: (i) (whether as director, officer, consultant,
principal, employee, agent or otherwise) engage in or contribute
Employee’s knowledge and abilities to any business or entity
in competition with Company; (ii) employ or attempt to
employ or assist anyone in employing any person who is an employee
of Company; or (iii) attempt in any manner to solicit from
any customer business of the type performed by Company or persuade
any customer of Company to cease doing business or reduce the
amount of business that such client has customarily done with
Company. This covenant not to compete is intended to constitute and
be enforceable as a “bonus restriction agreement” under
Oregon law. In the event Employee breaches this covenant not to
compete, the Company shall have no obligation to pay Employee the
Severance Payment provided for in Section 8 and, in the event
Employee has already received such Severance Payment, Employee
shall return the full amo
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