EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of April 7, 2006 (the "Effective
Date") is by and between The Greenbrier Companies, Inc., a Delaware corporation
(the "Company"), and Mark J. Rittenbaum ("Employee").
RECITALS
A. Employee currently serves as the Senior Vice President and Treasurer 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. EMPLOYMENT
1.1 Employment of Employee. The Company agrees to employ Employee, and
Employee agrees to serve, as the Company's Senior Vice President and Treasurer
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. 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 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. TERM
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 $235,000 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 foregoing, nothing in this Agreement shall
preclude the amendment or termination of any such
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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 of Control (including, without
limitation, any termination that is deemed to have occurred following a Change
of Control in accordance with Section 8.1), 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, and at the end of such two-year period shall surrender to Employee
the Company's rights to the Company portion of the cash surrender value under
the Northwestern Policy.
3.5 Target Benefit Program. The Company shall make a contribution on
Employee's behalf to the Greenbrier Leasing Corporation Manager Owned Target
Benefit Plan (the "Target Benefit Plan") or to a successor or replacement plan
of a similar type that the Company or its affiliates may adopt, in accordance
with the terms of such plan, for each fiscal year in which Employee is employed
by the Company for any portion of such fiscal year.
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 Paid Time Off. During the Term, Employee shall be entitled to five
weeks of paid time off ("PTO") during each fiscal year of the Company, to be
taken at times which do not unreasonably interfere with performance of
Employee's duties. PTO shall accrue ratably during the fiscal year. Any unused
portion of such PTO may not be carried forward from year-to-year by Employee,
consistent with the Company's general policy for officers of the Company.
3.8 Use of Automobile. The Company will also furnish to Employee an
automobile for his use in performing his duties on behalf of the Company,
without cost to him, consistent with past practices of the Company and its
subsidiaries.
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-
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time establish for senior officers and to preserve any deductions for federal
income taxation purposes to which the Company may be entitled.
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.
6. ENFORCEMENT
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 irreparably 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.
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7. SEVERANCE PAYMENT
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, plus (iii)
the Pro Rated Bonus. "Pro Rated Bonus" shall mean the sum of the following: (x)
with respect to the fiscal year in which such termination occurs, an amount
equal to the Average Bonus multiplied by a fraction, the numerator of which is
the number of days during such fiscal year (which begins September 1) that
Employee is employed and the denominator of which is 365; plus (y) with respect
to the fiscal year immediately preceding the fiscal year in which such
termination occurs, the Average Bonus, but if and only if Employee has not
received an annual bonus with respect to such fiscal year. "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 the form attached as Exhibit A to this Agreement. 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 benefits provided pursuant to Sections 3.3, 3.4 and 3.5 to
Employee and/or Employee's family, and shall continue to furnish an automobile
to Employee, at the Company's expense. If Employee becomes reemployed with
another employer during such period and is eligible to receive such benefits
under another employer provided plan, the Company shall not be obligated to
continue to provide such benefits, to the extent that reasonably similar
benefits are available to Employee pursuant to such employer-provided plan. The
Company may satisfy its obligations under this Section 8.1(b), in part, by
paying the applicable premiums for continuation coverage pursuant to COBRA for
Employee and/or his family, for as long as such coverage is available under
COBRA under the law. "COBRA" refers to the Consolidated Omnibus Budget
Reconciliation Act of 1985.
(c) All unvested stock options and restricted stock grants held by
Employee shall become fully vested and exercisable as of the Date of
Termination.
7.2 Termination by the Company for "Cause". In the event that the Company
terminates Employee's employment for "Cause" prior to expiration of the Term,
Employee's earned but unpaid Base Salary as of the effective date of such
termination shall be paid in full.
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The Company shall have no obligation to pay the severance payment described in
Section 7.1, and no other benefits shall be provided, or payments made by the
Company pursuant to Section 3 of this Agreement, except for benefits which shall
already have become vested under the terms of programs maintained by the Company
or its affiliates for salaried employees generally. "Cause" shall mean: (a)
gross negligence or willful misconduct in the performance of Employee's material
duties, if Employee has failed to fully cure the unsatisfactory performance
within 15 days of receipt of written notice by the Company of the grounds for
termination for Cause; (b) the commission of embezzlement, theft, material fraud
or other acts of dishonesty; (c) violation by Employee of any of the material
provisions of this Agreement; (d) conviction of or entrance of a plea of guilty
or nolo contendre to a felony or other crime which has or may have a material
adverse effect on Employee's ability to carry out his duties under this
Agreement; (e) conduct involving moral turpitude; or (f) failure or refusal to
carry out the reasonable and material directives of the CEO.
8. CHANGE OF CONTROL
8.1 Termination in the Event of a Change of Control. If, during the Term
and following a Change of Control, the Company terminates Employee's employment
other than for Cause, or Employee terminates his employment either without any
reason during the Window Period or for Good Reason, then the Company shall pay
or provide the benefits set forth in subsections (a) - (c) below. If a Change of
Control occurs and if Employee's employment with the Company is terminated prior
to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by Employee that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with or anticipation of
the Change of Control, then for purposes of Section 8 of this Agreement the
termination shall be deemed to have occurred following a Change of Control.
(a) The Company shall pay to Employee in a lump sum in cash, within
30 days after the Date of Termination, the aggregate of the following amounts:
Employee's Base Salary through the Date of Termination to the extent not
previously paid, plus the Pro Rated Bonus (defined in Section 7.1(a)), plus an
amount equal to two and one-half times the amount of the sum of (x) the
Employee's Base Salary and (y) the Average Bonus (as defined in Section 7.1(a).
"Base Salary" shall mean Employee's current annual base salary in effect at the
time a Change in Control occurs.
(b) For a period of two years following the Date of Termination, the
Company shall continue to provide or pay the cost of all employee benefits
provided pursuant to Sections 3.3 and 3.4 to Employee and/or Employee's family,
and shall continue to furnish an automobile to Employee, at the Company's
expense. In addition, the Company shall provide Employee with the Change in
Control benefits provided for under the terms of the Target Benefit Plan. If the
Employee becomes reemployed with another employer during such period and is
eligible to receive employee benefits under another employer provided plan, the
Company shall not be obligated to continue to provide such benefits, to the
extent that reasonably similar benefits are available to the Employee pursuant
to such employer-provided plan. The Company may satisfy its obligations under
this Section 8.1(b), in part, by paying the applicable premiums for
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continuation coverage pursuant to COBRA for Employee and/or his family, for as
long as such coverage is available under COBRA under the law. "COBRA" refers to
the Consolidated Omnibus Budget Reconciliation Act of 1985.
(c) All unvested stock options and restricted stock grants held by
Employee shall become fully vested and exercisable as of the Date of
Termination.
8.2 Definitions. For purposes of this Agreement, the following definitions
shall apply:
(a) "Change of Control" shall mean the occurrence of any of the
following:
(i) The acquisition by any individual, entity or group
(within the meaning of section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d - 3 promulgated under
the Exchange Act) of 50 percent or more of the stock of
any class or classes having by the terms thereof
ordinary voting power to elect a majority of the
directors of the Company (irrespective of whether at the
time stock of any class or classes of the Company shall
have or might have voting power by reason of the
happening of any contingency); provided, however, that
for purposes of this subsection (a), the following
acquisitions will not constitute a Change of Control:
(i) any acquisition directly from the Company; (ii) any
acquisition by the Company or a subsidiary of the
Company; or (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained
by the Company or any corporation controlled by the
Company.
(ii) The individuals who, as of the date of this Agreement,
are the members of the Board of Directors of the Company
(the "Incumbent Board") cease for any reason to
constitute a majority of the Board, unless the election
or appointment, or nomination for election or
appointment, of any new member of the Board was approved
by a vote of a majority of the Incumbent Board of
Directors, then such new member shall be considered as
though such individual were a member of the Incumbent
Board.
(iii) The consummation of a merger or consolidation involving
the Company if the stockholders owning the capital and
profits ("ownership interests") of the Company
immediately before such merger or consolidation do not,
as a result of such merger or consolidation, own,
directly or indirectly, more than 50 percent of the
combined voting power or ownership interests of the
Company, or the entity resulting from such merger or
consolidation, in substantially the same proportion as
their ownership of the
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combined voting power or ownership interests outstanding
immediately before such merger or consolidation.
(iv) The sale or other disposition of all or substantially
all of the assets of the Company.
(v) The dissolution or the complete or partial liquidation
of the Company.
(b) "Good Reason" shall mean:
(i) A material change in Employee's status, positions,
duties or responsibility as an Employee of the Company
as in effect immediately prior to the Change of Control
which may reasonably be considered to be an adverse
change, except in connection with the termination of
Employee's employment for Cause or due to death, or
resulting from Employee's decision for any reason other
than for Good Reason;
(ii) A reduction by the Company of Employee's Base Salary
exceeding 5 percent of Employee's prior year's Base
Salary (or an adverse change in the form or timing of
the payment thereof) as in effect immediately prior to
the Change of Control;
(iii) A reduction by the Company of Employee's Annual Bonus
exceeding 20 percent of Employee's prior year's Annual
Bonus (unless such reduction relates to the amount of
Annual Bonus payable to Employee for the achievement of
specified performance goals, or to the attainment of
profitability levels of the Company or certain of its
subsidiaries, and the non-achievement of such goals
and/or the non-attainment of profitability levels of the
Company or certain of its subsidiaries, is the reason
for the reduction in Employee's Annual Bonus compared to
the prior year's bonus);
(iv) the Company's requiring the Employee to be based at any
office more than 35 miles from where Employee's office
is located immediately prior to the Change of Control.
(v) the Company fails to require any successor (whether
direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the
business and/or assets of the Company, to assume
expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company
would be required to perform this Agreement if no such
succession had taken place, provided that such successor
has received at least ten
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days' prior written notice from the Company or the
Employee of the requirements of Section 8 of this
Agreement.
(c) "Window Period" shall mean the 30 - day period immediately
following the first anniversary of the effective date of the Change of Control
transaction.
(d) "Date of Termination" shall mean (i) if Employee's employment is
terminated by the Company for Cause, or by the Employee during the Window Period
or for Good Reason, the date of receipt of the Notice of Termination of any
later date specified therein, as the case may be, (ii) if the Employee's
employment is terminated by the Company other than for Cause, the date on which
the Company notified the Employee of such termination, and (iii) if Employee's
employment is terminated by reason of the Employee's death, the date of such
death.
8.3 Notice of Termination. Any termination by the Company for Cause, or by
the Employee without any reason during the Window Period or for Good Reason,
shall be communicated by Notice of Termination to the other party. For purposes
of this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
to the extent applicable sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated, and (iii) if the Date of
Termination (as defined above) is other than the date of receipt of such notice,
specifies the termination date of such notice. The failure by the Employee or
the Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any right
of the Employee or the Company hereunder or preclude the Employee or the Company
from asserting such fact or circumstance in enforcing the Employee's or the
Company's rights hereunder.
8.4 Limitation on Change of Control Payments and Benefits.
(a) Notwithstanding anything in this Agreement to the contrary, and
except as provided in Section 8.4(b), below, if any of the payments or benefits
to be made or provided in connection with the Agreement, together with any other
payments or benefits which the Employee has the right to receive from the
Company or any entity which is a member of an "affiliated group" (as defined in
section 1504(a) of the Code without regard to section 1504(b) of the Code) of
which the Company is a member constitute an "excess parachute payment" (as
defined in section 280G(b) of the Code), the payments or benefits to be made or
provided in connection with this Agreement will be reduced to the extent
necessary to prevent any portion of such payments or benefits from becoming
nondeductible by the Company pursuant to section 280G of the Code or subject to
the excise tax imposed under section 4999 of the Code. The determination as to
whether any such decrease in the payments or benefits to be made or provided in
connection with this Agreement is necessary must be made in good faith by a
nationally recognized accounting firm (the "Accounting Firm"), and such
determination will be conclusive and binding upon Employee and the Company. In
the event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Company shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
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Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. In the event that such a reduction is necessary,
Employee will have the right to designate the particular payments or benefits
that are to be reduced or eliminated so that no portion of the payments or
benefits to be made or provided to Employee in connection with the Agreement
will be excess parachute payments subject to the deduction limitations under
section 280G of the Code and the excise tax under section 4999 of the Code.
(b) The limitation on Change of Control payments and benefits set
forth in Section 8.4(a) shall not apply if (i) a Change of Control is
consummated after December 31, 2005 and on or before December 31, 2006, and (ii)
Employee's employment is terminated during the Term and following the Change of
Control (including, without limitation, any termination that is deemed to have
occurred following a Change of Control in accordance with Section 8.1), either
by the Company other than for Cause or by Employee for Good Reason or without
any reason during the Window Period. If (i) and (ii) occur, then, in addition to
paying or providing the full amount of payments and benefits provided for in
Section 8.1(a) - (c), the Company shall pay Employee a tax gross-up payment in
an amount sufficient to compensate Employee for any excise tax related to
Section 4999 of the Internal Revenue Code and any federal, state and local taxes
due to the gross-up payment.
9. GENERAL PROVISIONS
9.1 Dispute Resolution. The parties shall attempt to resolve any dispute
relating to this Agreement through mediation upon written request of either
party to submit the dispute to mediation. The parties will jointly appoint a
mutually acceptable mediator; if the parties are unable to agree upon
appointment of a mediator within 15 days of the date of request for mediation,
either party may deem mediation to have failed to resolve the dispute, and may
submit the dispute to arbitration in accordance with this Section 9.1. Upon
appointment of a mediator, the parties agree to participate in good faith in
mediation and negotiations relating thereto for 15 days. Any dispute relating to
this Agreement that cannot be resolved by the parties or through mediation will
be resolved by arbitration as provided in this Section 9.1. Disputes will be
resolved by arbitration administered by the Arbitration Service of Portland,
Inc. Judgment upon the arbitration award may be entered in any court having
jurisdiction thereof, and the resolution of the dispute as determined by the
arbitrator will be final and binding on the parties. Any such arbitration will
be conducted in Portland, Oregon. If the total amount in dispute is less than
$100,000, there will be one arbitrator. If the total amount in dispute is
$100,000 or more, three arbitrators will hear the dispute. The arbitrator(s)
must have experience as a state or federal judge or such alternate
qualifications as the parties may agree upon. The Company shall pay the fees and
costs of the arbitrator(s) and the hearing and each party shall be responsible
for its own expenses and those of its counsel and representatives.
Any party may seek, without inconsistency with this Agreement, from any
court located in the state of Oregon any injunctive or provisional relief that
may be necessary to protect the rights or property of that party pending the
establishment of the arbitral tribunal (or pending the arbitral tribunal's
determination of the merits of the controversy).
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The parties will be allowed discovery in accordance with the Federal Rules
of Civil Procedure. The Federal Rules of Evidence shall govern the conduct of
the arbitration hearing.
Except as otherwise provided in this Section, the arbitrator will have the
authority to award any remedy or relief that a court of Oregon could order or
grant.
Unless otherwise agreed to by the parties, the arbitrator's decision and
award must be in writing, signed by the arbitrator and include an explanation of
the arbitrator's reasoning.
Neither party nor the arbitrator may disclose the existence, content, or
results of any arbitration under this section without the prior written consent
of the other party to this Agreement.
This Section 9.1 shall survive termination, amendment or expiration of any
of the agreements or relationships between the parties.
9.2 Withholding Taxes. The Company may directly or indirectly withhold
from any payments made under this Agreement all federal, state, city or other
taxes and other amounts as permitted or required by law, rule or regulation.
9.3 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be given in writing and shall be deemed to
have been duly given if delivered or mailed, postage prepaid, by overnight mail
as follows:
(a) To the Company:
The Greenbrier Companies, Inc.
Director - Human Resources Department
One Centerpointe Drive, Suite 200
Lake Oswego, OR 97035
(b) To Employee:
________________________
________________________
________________________
(c) With copies to:
The Greenbrier Companies, Inc.
One Centerpointe Drive, Suite 200
Lake Oswego, OR 97035
Attention: General Counsel
or to such other address as either party shall have previously specified in
writing to the other.
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9.4 Binding Agreement. This Agreement shall be binding upon, and shall
inure to the benefit of, Employee and the Company and their respective permitted
successors, assigns, heirs, beneficiaries and representatives. Because of the
unique and personal nature of Employee's duties under this Agreement, neither
this Agreement nor any rights or obligations under this Agreement shall be
assignable by Employee.
9.5 Governing Law. The validity, interpretation, performance, and
enforcement of this Agreement shall be governed by the laws of the State of
Oregon without regard to the conflict of laws rules of Oregon.
9.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
9.7 Integration. This Agreement contains the complete, final and exclusive
agreement of the parties relating to Employee's employment, and supersedes all
prior oral and written employment agreements or arrangements between the
parties.
9.8 Amendment. This Agreement cannot be amended or modified except by a
written agreement signed by Employee and the Company.
9.9 Waiver. No term, covenant or condition of this Agreement or any breach
thereof shall be deemed waived, except with the written consent of the party
against whom the waiver is claimed, and any such waiver shall not bee deemed to
be a waiver of any preceding or succeeding breach of the same or any other term,
covenant, condition or breach.
9.10 Severability. The finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this Agreement
shall not render any other provision of this Agreement unenforceable, invalid or
illegal. Such court shall have the authority to modify or replace the invalid or
unenforceable term or provision with a valid and enforceable term or provision
which most accurately represents the parties' intention with respect to the
invalid or unenforceable term or provision.
THE GREENBRIER COMPANIES, INC.:
By: /s/ Joseph K. Wilsted
--------------------------------
EMPLOYEE:
/s/ Mark J. Rittenbaum
------------------------------------
Mark J. Rittenbaum
Employment Agreement
Page 12
EXHIBIT A
RELEASE OF CLAIMS
Employee, together with his heirs, family members, executors,
administrators, agents and assigns (the "Employee") hereby waives any legal
rights and releases and forever discharges The Greenbrier Companies, Inc.,
("Greenbrier") its subsidiaries, affiliates, officers, directors, shareholders,
employees, agents and attorneys (collectively, the "Released Parties" and
individually, a "Released Party") from any and all liabilities, demands, claims,
suits, actions, charges, damages, judgments, levies or executions, whether known
or unknown, liquidated, fixed, contingent, direct or indirect, which have been,
could have been or could be raised against any such Released Party by Employee
and which relate in any way to Employee's employment by Greenbrier or
termination of that employment (but excluding any amounts payable to Employee
pursuant to Section 7.1(a) of the Employment Agreement dated _________, 2006
between Greenbrier and Employee).
Employee acknowledges the full and final waiver and release of all claims
which Employee has or may have against any Released Party, specifically
including without limitation all claims for relief or remedy of any type under
any state or federal laws, including but not limited to the federal and state
statutes relating to civil rights, employment discrimination (based on race,
color, age, sex, national origin, marital status, handicap, veterans status,
religion, workers compensation and family relationship), labor, employment
rights or benefits, or relating to employment or termination of employment, wage
payments, all as amended, and including but not limited to claims based on
breach of fiduciary duty, misrepresentation, fraud, defamation, tortious conduct
of any type arising from or relating to Employee's employment by Greenbrier or
any termination of such employment, or any other common law theories; and
including but not limited to any claims for additional compensation, back pay or
benefits of any type, and including but not limited to any claim for attorney
fees or costs, for reinstatement or reemployment, or for compensatory or
punitive damages under any applicable statutes or common law theories, except to
the extent that waiver or release of future claims is specifically prohibited by
law.
Employee acknowledges that Employee is waiving and releasing any rights he
may have under the Age Discrimination in Employment Act of 1967 ("ADEA") and
that this Release is knowing and voluntary. Employee and Greenbrier agree that
this Release does not apply to any rights or claims that may arise under ADEA
after the date this Release is executed by Employee. Employee acknowledges that
the consideration given for this Release is in addition to anything of value to
which Employee was already entitled. Employee further acknowledges that he has
been advised by this writing that: (1) he should consult with an attorney prior
to executing this Release; (2) he has up to twenty one (21) days within which to
consider this Release; (3) he has seven (7) days following his execution of this
Release to revoke this Release; (4) this Release will not be effective until the
revocation period has expired; and (5) nothing in this Release prevents or
precludes Employee from challenging or seeking a determination in good faith of
the validity of this waiver under the ADEA, nor does it impose any condition
precedent, penalties or costs for doing so, unless specifically authorized by
federal law.
EMPLOYEE:
____________________________________
Date signed: _______________________