Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 Railamerica, Inc. 85 425K
2: EX-2.2 Merger Agreement 45 247K
3: EX-2.3 Stock Purchase Agreement 43 230K
4: EX-2.4 Letter Agreement 5 25K
5: EX-4.11 Warrant to Purchase/Stonegate 9 39K
6: EX-4.12 Warrant to Purchase/Railamerica 8 39K
7: EX-4.13 First Supplemental Indenture Dated 2/13/02 8 24K
8: EX-4.14 Second Supplemental Indenture Dated 1/24/02 8 25K
9: EX-10.79 Waiver and Amendment No. 3 to Credit Agreement 87 127K
10: EX-10.80 Change in Control Service Agreement 15 70K
11: EX-10.81 Service Agreement Dated 4/4/01 8 27K
12: EX-10.82 Amend. & Restated Employment Agreement (Marino) 13 62K
13: EX-10.83 Amend. & Restated Employment Agreement (Redfearn) 12 53K
14: EX-10.84 Executive Employment Agreement (Gary Spiegel) 12 53K
15: EX-21.1 Subsidiaries of the Company 2 14K
16: EX-23.1 Consent of Pricewaterhousecoopers 1 9K
17: EX-23.2 Consent of Langton Clarke Limitada 1 9K
EXHIBIT 10.81
SERVICE AGREEMENT
THIS AGREEMENT is made the 4th day of April, 2001
BETWEEN FREIGHT VICTORIA LTD.
(ACN 075 295 644)
of Level 1, Transport House
589 Collins Street, Melbourne 3000
("THE COMPANY")
AND MARINUS van ONSELEN
81/604 St. Kilda Rd
Melbourne 3004
Australia
("THE EXECUTIVE")
WHEREAS the Company has engaged the Executive, subject to the terms and
conditions contained in this Agreement.
NOW THE PARTIES AGREE as follows:
1 INTERPRETATION
1.1 In the construction of this Agreement, unless the contrary
intention appears:
"BOARD" means the Board of the Company;
"CHANGE OF CONTROL" means the acquisition by any person,
entity or group of more than 50% of the then outstanding
common stock or combined voting power of the Company,
excluding any acquisition by another affiliate of the
RailAmerica group of companies.
"PERSON" or any word connoting a natural person includes a
reference to a body corporate or body politic;
"SCHEDULE" means the Schedule to this Agreement as varied from
time to time.
"TOTAL PAYMENT COST" means the balance of unpaid Base
compensation (as set forth in the Schedule) for the remainder of the
Duration of the Engagement as is then in force under Clause 3.
1.2 Headings and underlining shall be disregarded in the
construction of this Agreement, except for the purpose of
identifying a Section.
1.3 Singular includes plural and vice versa and words importing
any gender shall include all other genders.
2 NATURE OF SERVICE
The Company engages the Executive as its Chief Executive Officer to
provide executive and management services to the Company and the
Executive accepts such engagement and shall be responsible to the Board
for carrying on such business of the Company and to perform the duties
and to exercise the powers which from time to time are assigned to or
vested in the Executive by the Board ("THE SERVICES").
3 DURATION OF ENGAGEMENT
Subject to clause 4 the Executive shall be engaged for an initial
period ending 30 December 2004 ("THE TERM"). Subject to written notice
by either party no later than three (3) months prior to expiry of the
Term, or the second year of each extension of the Term, the engagement
of the Executive will continue for successive two year periods.
4 TERMINATION BY COMPANY
4.1 Subject to sub-clauses 4.2 and 4.3 the, Company may terminate
the engagement of the Executive only for serious misconduct.
4.2 the Company may terminate the engagement of the Executive by
payment of the Total Payment Cost for the remainder of the
term of the engagement.
4.3 If a Change of Control by the company occurs and:
4.3.1 the engagement of the Executive is terminated other
than pursuant to sub-clause 4.1; or
4.3.2 the Executive terminates the engagement due to a
material reduction in his compensation or
employee-related benefits or a change in his status
as Chief Executive Officer (either as to title or
duties) the Company will pay the Executive, on
termination, a sum equal to 200% of the Executive's
total Remuneration Cost paid to the Executive in the
12 months preceding the date of Employment
termination as set out in Clause 10.
4.4 No notice or compensation shall be payable to the Executive in
the event of proper termination under sub-clause 4.1.
5 TERMINATION BY THE EXECUTIVE
The Executive may terminate the engagement in accordance with the
notice provisions hereinafter appearing.
6 NOTICE
6.1 The notice period for termination of the engagement of either
party is three (3) months;
6.2 If the Company gives notice, payment during the notice period
is subsumed in the payment under sub-clause 4.2;
6.3 Subject to sub-clause 4.3, if the Executive gives notice the
Executive will be entitled to payment during the notice period
but no other termination payment.
7 TERMINATION PROVISIONS
The termination of this Agreement shall not affect such of the
provisions in this Agreement as are expressed to operate or have effect
thereafter and shall be without prejudice to any right of action
already accrued to either party in respect of any breach of this
Agreement by the other party.
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8 DUTIES
During the continuance of the engagement the Executive shall:
8.1 perform the Services to the standard and in the manner in
which he has performed them to date;
8.2 engage in an annual review of performance on or about each
anniversary of the commencement of employment.
9 CONFIDENTIALITY
The Executive agrees with the Company that save as required or
authorised by law or the Company he shall not, either during the
engagement (except in the proper course of providing the Services), or
at any time hereafter, divulge to any person, and shall use his best
endeavours to prevent the publication or disclosure of, any trade
secret or process or any information concerning the business,
customers, trade connections, technology or finances of the Company
and/or its related companies or its or his dealings or affairs which
may come to his knowledge during or in the course of the engagement or
by any other means whatsoever.
10 REMUNERATION
10.1 The Executive shall be entitled to be paid remuneration
("TOTAL EMPLOYMENT COST") AS SET out in the Schedule, which
shall be calculated from the date of commencement of the
engagement and shall be paid as set out in the Schedule, and
may be paid in such other manner and with such other benefits
as the parties may agree in writing from time to time. Total
Employment Cost will be increased: -
10.1.1 in (January) of each year of the engagement by a sum
representing the increase in the Consumer Price Index
(Melbourne); and
10.1.2 annually upon review by the Board based on the
sub-clause 10.4 performance criteria and general
merit.
10.2 The Executive may elect to allocate such remuneration as he
thinks fit on a salary sacrifice basis (taking into account of
any Fringe Benefit Tax impact).
10.3 Included in the Total Employment Cost is an amount equal to 6%
of the Executive's salary component (or such other amounts
prescribed by the Superannuation Guarantee Charge) which the
Company will pay into a Superannuation Fund of the Executive's
choice. Any further sum for superannuation via salary
sacrifice will be treated in accordance with the trust deed of
the fund.
10.4 In February of each year of the engagement the parties will
agree on a share option allocation to the Executive and the
performance criteria to enable the Executive to attain the
share option allocation.
11 LEAVE
11.1 The Executive will be entitled to the following leave: -
11.1.1 public holidays as gazetted in Victoria including but
not limited to the following: -
New Year's Day
Australia Day
Good Friday
Easter Saturday
Easter Monday
Anzac Day
Queen's Birthday
Labour Day
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Christmas Day
Boxing Day
11.1.2 ten (10) days sick leave per year cumulative up to a
maximum of 120 days.
11.1.3 annual leave of four (4) weeks per annum or pro-rata
subject to the Executive giving the Board reasonable
notice of accessing annual leave. The Executive will
not be entitled to leave loading.
11.1.4 long service leave in accordance with the relevant
State legislation.
11.1.5 five (5) days paid bereavement leave in the event of
death of a spouse (including a defacto spouse) parent
(including step and foster parents) brother, sister
(whether natural, step or foster), child, step-child
and parent-in-law.
11.1.6 unpaid parental leave in accordance with Schedule IA
of the Workplace Relations Act 1996.
12 HOURS OF WORK
The Executive's hours of work will be as may reasonably be required by
the Board.
13 REVIEW
The Executive will be given an annual review on or about the
anniversary date of employment with the Company to cover all aspects of
performance.
14 HEALTH AND SAFETY
The Executive acknowledges that he has a duty whilst at work to take
reasonable care for the health and safety for himself and other persons
who may be affected by his acts or omissions. He also has a duty to
co-operate with the Company in complying with any statutory duty or
requirement concerning health and safety at work. In particular, he
must acquaint himself with all health, safety and fire procedures at
his place of work.
15 QUALITY
The Company takes pride in its quality of service to the customer. The
Executive is expected to ensure a commitment to his work that will
maintain and enhance such quality.
16 NATURE OF DUTIES
It is expected the Executive will devote his time and attention to the
faithful and diligent performance of his duties and endeavour to the
utmost of his ability to promote the interests of the Company.
17 SMOKING
The Company policy is that, as a minimum standard, any relevant
legislation will be implemented. It is an absolute requirement to
comply with any Company policy applicable to an area of work.
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18 DISCRIMINATION
The Company is an equal employment opportunity employer. As such, each
employee will comply with any legislation in respect to equal
employment, affirmative action and anti-discrimination.
19 SUBSTITUTION
Save for accrued rights thereunder this Agreement is in substitution
for all previous contracts of service between the Company and the
Executive which shall be deemed to have been terminated by mutual
consent as from the date on which this Agreement commences.
20 FURTHER ASSURANCES
Each of the parties to this Agreement will on or after the date of this
Agreement at the request of any other of such parties sign, execute and
complete all such further documents and assurances and carry out all
such further steps as may be necessary to effectually complete this
Agreement and the transactions and things contemplated in this
Agreement.
21 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the law for the time being in the State of Victoria, Australia.
22 SEVERABILITY
If any term, condition or clause of this Agreement or the application
of the same to any person or circumstance shall be or become invalid or
unenforceable, the remaining terms, conditions and clauses shall not be
affected and each term, condition and clause of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
23 VARIATION
This Agreement may only be varied in writing between the parties.
24 DISPUTE
In the event of a dispute concerning the construction or effect of this
Agreement the dispute will be referred by the parties to a nominee of
the Law Institute of Victoria for determination.
25 NOTICES
Any notice under this Agreement can be given by pre-paid mail.
26 CONFIDENTIALITY
The existence and terms of this Agreement shall remain confidential to
the Executive, and the Board.
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SCHEDULE
REMUNERATION PACKAGE:
For calendar year 2001
Base compensation A$375,000.00
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EXECUTED BY THE PARTIES AS A DEED on the date set out above.
THE COMMON SEAL OF )
FREIGHT VICTORIA LTD )
(ACN 075 295 644) was affixed in the )
presence of authorised persons:
Director..../s/ Gary O. Marino..............Full Name...........................
Usual address...................................................................
*Director/Secretary.../s/ Donald Redfearn...Full Name...........................
* Delete which is inapplicable
Usual address...................................................................
SIGNED SEALED AND DELIVERED )
by in the presence of: ) ...../s/ Marinus van Onselen......
Executive
Witness:....../s/ John T. White.............
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AMENDMENT TO SERVICE AGREEMENT
THIS AMENDMENT is entered into this ____ day of April, 2001 and is made
part of that certain Service Agreement ("Agreement") made between FREIGHT
VICTORIA LTD. and MARINUS VAN ONSELEN, dated April 4th, 2001.
WHEREAS, Paragraph 26 of the Agreement is amended to read as follows:
CONFIDENTIALITY. The existence and terms of this Agreement shall
remain confidential to the Executive and the Board, except that it
may be disclosed as required by any applicable law, rule or
regulation of the United States or the Commonwealth of Australia,
including without limitation the Federal Securities Laws of the
United States.
AGREED TO AND EXECUTED BY THE PARTIES AS OF THE DATE FIRST ABOVE
WRITTEN.
RAILAMERICA, INC. FREIGHT VICTORIA LTD.
/s/ DONALD D. REDFEARN /s/ MARINUS VAN ONSELEN
---------------------- --------------------------
Donald D. Redfearn Marinus Van Onselen
Director Chief Executive Officer
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