EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), dated for
reference purposes the 1st day of June, 1996, is by and between
GREENBRIER LOGISTICS, INC., an Oregon corporation ("Company"),
and A. DANIEL O'NEAL, JR. ("Executive") (collectively, "the
Parties").
RECITALS
A. By agreement to be dated June 28, 1996, (the "Stock
Purchase Agreement"), Executive will sell and Company will
purchase all of Executive's shares of Tolan-O'Neal Transportation
& Logistics, Inc. held by Executive.
B. Company is engaged in the business of commercial
transportation scheduling and logistics. Company desires to
employ Executive on a full-time basis as its Chairman to perform
the duties set forth in this Agreement; and Executive desires to
accept the employment.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual
promises, agreements and conditions set forth below, it is agreed
as follows:
1. Employment. Company agrees to employ Executive
and Executive agrees to accept employment by Company upon the
terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for termination
in Section 8, the term of this Agreement shall be for five
(5) years beginning on June 1, 1996.
3. Duties. Executive will perform duties as Chairman
of Company, and such other duties as may be assigned to him from
time to time by the Board of Directors of Company, provided that
such duties are consistent with those duties customarily
associated with such position.
4. Extent of Services; Restrictions. Executive shall
devote his entire working time, attention and energies to the
performance of his duties hereunder and shall not, during the
term of this Agreement, be engaged in any other business
activity, whether or not such business activity is pursued for
gain, profit or other pecuniary advantage. Notwithstanding the
foregoing, Executive may invest his assets in such form or manner
as will not require services on his part. Executive shall at all
times faithfully and to the best of his ability perform all of
the duties that may be required of him pursuant to this
Agreement. The duties shall be rendered at such places and times
as the needs of Company shall require subject to reasonable
travel burdens on Executive, consistent with past service to the
Greenbrier Companies.
5. Compensation and Benefits.
a. Base Compensation. Executive shall receive
base compensation of $200,000 per year, payable in accordance
with Company's standard payroll procedures for its non-union
employees.
b. Bonus Compensation. Executive shall be
entitled to receive such bonus remuneration, if any, as the Board
of Directors of Company shall authorize. Executive acknowledges
that such bonuses are discretionary.
c. Executive Benefits. Executive shall be
entitled to such other fringe benefits as are normally accorded
full-time employees of Company under its personnel policies
adopted from time to time, which are not inconsistent with the
terms of this Agreement; provided, however, Executive shall be
entitled to maintain existing benefits or equivalents. Company
shall have the right to modify or terminate any such fringe
benefits and personnel policies at any time, except those
benefits specifically provided in this Agreement.
d. Stock Options. The Greenbrier Companies,
Inc. shall grant a stock option to Executive on or before
November 30, 1996 to purchase 50,000 shares of The Greenbrier
Companies, Inc. common stock under the terms of The Greenbrier
Companies' 1994 Stock Option program with fair market valuation
of $12.12 per share.
e. Expenses. Executive shall be entitled to
reimbursement from Company for reasonable expenses, including
club and trade association dues, necessarily incurred by
Executive in the performance of Executive's duties under this
Agreement, upon presentation of vouchers indicating in detail the
amount and business purpose of each such expense and upon
compliance with Company's reimbursement policies established from
time to time.
f. Car Allowance. The Company shall provide a
car for Executive, for use in performing his duties hereunder,
that is in keeping with his position and responsibilities, and
the Company shall pay for full maintenance and operating costs
for such car.
6. Vacation. Executive shall be entitled to four
weeks of vacation with pay annually, to be taken at such time as
may be acceptable to the Executive and Company giving
consideration to the operating needs of Company. At the
termination of Executive's employment, either at the end of the
term of this Agreement or pursuant to Section 8, Executive shall
be entitled to payment in lieu of vacation which was not taken in
the year of termination.
7. Confidentiality; Noncompetition.
a. Confidentiality. Executive acknowledges that
during the course of his employment by Company, he has been and
will be exposed to, have disclosed to him and may develop
information that is proprietary to Company ("Confidential
Information"). Confidential Information includes, but is not
limited to, financial data, trade secrets, information concerning
the operation, design and marketing of products, repairs and
processes, business plans and procedures, customer lists, files
and profiles needs analyses, calculations, data, manuals,
specifications, performance standards, instructions and any other
material or information related to Company, its business or
operations, and the ideas and information relating thereto.
Confidential Information does not include any information which
is available to the public, in the public domain, or readily
ascertainable or available from another legitimate source.
Executive will at no time use or permit any other person or
entity to examine, use or derive benefit from Confidential
Information except in the course of performing his duties under
this Agreement. Executive shall maintain all Confidential
Information in the strictest confidence, and shall take all
reasonable precautions to preserve its confidentiality during the
term of this Agreement and thereafter. All documents and
materials evidencing Confidential Information, and copies
thereof, shall at all times remain the property of Company. Upon
demand, Executive will deliver to Company all documents and other
materials which contain or pertain to Confidential Information.
b. Noncompetition. Provided that Company is not
in breach of this Agreement, Executive agrees that during the
term of this Agreement and for a period of two years following
termination of his employment for any reason, Executive will not,
without the consent of the Company, within the geographic area of
North America:
(1) Directly or indirectly own (as a
proprietor, general or limited partner, shareholder, trust
beneficiary or otherwise), manage, operate, participate in (as an
employee, agent, manager, director, officer, consultant or
otherwise), perform services or consult for or otherwise carry on
in any capacity whatsoever for, a business engaged in providing
services which directly compete with the Company's business or
products;
(2) Directly or indirectly induce or attempt
to persuade any former, current or future employee, agent,
manager, consultant, director of, or other participant in the
Company's business to terminate such employment or other
relationship; or
(3) Directly or indirectly contact or
solicit any customers of Company or any of its affiliates for the
purpose of selling to the customers any products or services
which are the same as or substantially similar to, or competitive
with the products or services sold by Company or any of its
affiliates during Executive's employment with Company; or
(4) Directly or indirectly use Confidential
Information in connection with any activity prohibited above.
(5) Notwithstanding anything herein to the
contrary, Executive may own an interest not in excess of 5% of a
corporation whose shares are listed on a recognized stock
exchange or traded in the over-the-counter market in any country
in North America, which carries on a business which directly
competes with the services or products provided by Company.
c. Breach. Upon a breach by Executive of any of
the terms or conditions of the confidentiality or noncompetition
covenants, Company shall have the right to:
(1) Recover from Executive its actual
damages incurred by reason of such breach, including its attorney
fees and costs of suit, if Company prevails, or provided that
such is awarded to Company by way of an actual judgment;
(2) Obtain injunctive relief to prevent the
breach or continued breach of the covenants without proof of
actual damages; and
(3) Pursue any other remedy available at law
or in equity.
The provisions of this Section 7 shall remain in full
force and effect following termination of this Agreement for any
reason.
8. Termination.
a. For Cause. Company may terminate Executive's
employment at any time for cause with immediate effect upon
delivering written notice thereof to Executive. For purposes of
this Agreement, "for cause" shall mean: (i) gross negligence or
willful misconduct in the performance of Executive's duties;
(ii) embezzlement, theft, larceny, material fraud or other acts
of dishonesty; (iii) failure to cure any violation of any of the
provisions of this Agreement within thirty (30) days of written
notice from the Company; (iv) conviction of or entrance of a plea
of guilty or nolo contendere to a felony or other crime which has
or may have a material adverse effect on Executive's ability to
carry out his duties under this Agreement or upon the reputation
of Company; (v) conduct involving moral turpitude; or
(vi) refusal or repeated failure after warning by the Company to
carry out the reasonable directives of the Board of Directors,
provided that such directives are consistent with Executive's
duties herein. Upon termination for cause, Company's sole and
exclusive obligation will be to pay Executive his base
compensation earned through the date of termination, and any
accrued but unused vacation during the year of termination and
outstanding reimbursements, and Executive shall not be entitled
to any compensation after the date of such termination.
b. Without Cause. Company may terminate
Executive's employment at any time without cause upon written
notice. Upon termination without cause, Company's sole and
exclusive obligation will be to pay to Executive his base
compensation for the lesser of one year from the date of
termination or the remaining term of this Agreement, and
Executive shall not be entitled to any other compensation after
the date of such termination, except any accrued, but unused or
unpaid, vacation in the year of termination or compensation, and
any unreimbursed expenses incurred in conformance with this
Agreement prior to termination. Company's obligation under this
paragraph shall be reduced by any compensation Executive earns
subsequent to his termination and during the period that Company
is required to pay Executive his base compensation.
c. Upon Death. In the event of Executive's
death during the term of this Agreement, Company's sole and
exclusive obligation will be to pay to Executive's widow, if
living, or to his estate, if his widow is not then living,
Executive's base compensation through the last day of the month
in which his death occurs and any accrued, but unused, vacation
in the year of Executive's death.
d. Upon Disability. This Agreement shall
terminate, at Company's option, upon Executive's total
disability. Executive's total disability means his inability to
perform his duties under this Agreement by reason of illness,
mental or physical disability or accident for a period of six
consecutive months or for a period of twelve months (whether or
not consecutive in any consecutive 24-month period). Upon
termination by reason of Executive's disability, Company's sole
and exclusive obligation will be to pay Executive his base
compensation through the date of termination and any accrued, but
unused or unpaid, vacation or compensation. If Executive claims
disability, Company shall have the authority to consult with
Executive's attending physicians. Any and all information
obtained through such consultation shall be treated as
confidential.
e. Executive may terminate his employment under
this Agreement upon written notice to Company. Upon such
termination, Executive shall be entitled to all base compensation
and unused vacation in the year of termination, accrued to the
date of termination, and to reimbursement of any reasonable
business expenses incurred on behalf of the company prior to
termination.
9. Notices. Any notice required or permitted to be
given under this Agreement shall be sufficient if in writing and
personally delivered or sent by registered or certified mail
addressed as follows:
If to Company: William A. Furman
Greenbrier Logistics, Inc.
Suite 200
One Centerpointe Drive
Lake Oswego, OR 97035
Telephone: (503) 684-7000
Facsimile: (503) 684-7553
With a copy to: Norriss M. Webb
Executive Vice President and General
Counsel
The Greenbrier Companies, Inc.
Suite 200
One Centerpointe Drive
Lake Oswego, OR 97035
Telephone: (503) 684-7000
Facsimile: (503) 684-7553
And a copy to: Larry G. Brady
Vice President and Chief Financial
Officer
The Greenbrier Companies, Inc.
Suite 200
One Centerpointe Drive
Lake Oswego, OR 97035
Telephone: (503) 684-7000
Facsimile: (503) 684-7553
If to Executive: A. Daniel O'Neal, Jr.
Greenbrier Logistics, Inc.
Suite 500
200 West Thomas
Seattle, WA 98119
Telephone: (206) 282-0099
Facsimile: (206) 282-3824
Inadvertent failure to provide a courtesy copy shall not be
deemed a breach of this Agreement. Either party may, by notice
in writing to the other party, change the address to which
notices to that party are to be given.
10. Waiver. The waiver by either party of the breach
of any provision of this Agreement by the other party shall not
operate or be construed as a waiver of any subsequent breach by
such party.
11. Modification. No amendment, modification or
discharge of this Agreement shall be valid unless it is in
writing and duly executed by the party to be charged therewith.
12. Construction, Attorney Fees. This Agreement shall
be construed in accordance with and governed by the laws of the
state of Oregon. If any action is instituted by any party to
this Agreement to interpret or enforce this Agreement, the
prevailing party shall be entitled to recover as part of the
award its reasonable attorney fees and costs incurred in any such
action including at arbitration, trial, bankruptcy proceeding,
and appeal.
13. Severability. The invalidity or unenforceability
of any provision hereof shall in no way affect the validity or
enforceability of any other provision.
14. Benefit. This Agreement shall inure to and be
binding upon the Parties, their heirs, personal representatives,
successors and assigns, provided Executive may not assign this
Agreement.
15. Entire Agreement. The entire agreement between
the Parties is contained herein. This Agreement supersedes any
and all prior agreements and understandings between the Parties.
There are no promises or representations made on behalf of
Company to induce Executive to enter into this Agreement which
are not set forth herein. Executive expressly acknowledges and
agrees that this Agreement extinguishes all rights and interest
in Additional Compensation pursuant to Section 4.5 of the Prior
Contract.
16. Arbitration. Except for any dispute arising under
Section 7 above, any and all disputes arising from or pertaining
to this Agreement, or the interpretation or enforcement thereof,
shall be resolved by binding arbitration. The arbitration shall
be conducted by an independent and neutral arbiter mutually
agreed upon by the Parties.
17. Captions. The paragraph captions are for
convenience of the Parties and shall not affect the meaning or
interpretation of this Agreement.
18. Counterparts. This Agreement may be executed in
two or more counterparts, each of which counterparts shall be
deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this
Agreement as of the day and year first written above.
/s/ A. Daniel O'Neal
---------------------------------
A. DANIEL O'NEAL, JR.
GREENBRIER LOGISTICS, INC.
By /s/ Larry G. Brady
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Its Vice President
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THE GREENBRIER COMPANIES, INC.
By /s/ Larry G. Brady
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Its Vice President
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