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. Form 10-K405 Dated 12/31/00 78 368K
2: EX-3.3 Amendment Certificate of Incorporation 1 7K
3: EX-10.77 Waiver & Amendment No.1 to Credit Agreement 70 60K
4: EX-10.78 Waiver & Amendment No.2 to Credit Agreement 61 52K
5: EX-10.79 Employment Agreement/ Gary O. Marino 9 56K
6: EX-21.1 Subsidiaries of the Company 2 11K
7: EX-23.1 Consent of Pricewaterhousecoopers LLP 1 7K
8: EX-23.2 Consent of Arthur Andersen Langton Clarke 1 8K
EXHIBIT 10.79
EXECUTIVE
EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") made as of the
1st day of January, 2000, between RailAmerica, Inc., a Delaware corporation (the
"Company"), having an office at Boca Raton, Florida, and Gary O. Marino
("Executive").
WHEREAS, the Company believes it is in the best interests of the
Company and its subsidiaries and affiliates (collectively, the "Consolidated
Group") to employ Executive, and Executive desires to be employed by the
Company; and
WHEREAS, the Compensation Committee (the "Committee") of the Board of
Directors of the Company (the "Board") has approved of the terms of this
Agreement as of the date set forth above; and
WHEREAS, the Company and Executive desire to set forth the terms and
conditions on which Executive shall be employed by the Company and provide his
services to the Consolidated Group.
NOW, THEREFORE, for good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Executive, and Executive
hereby accepts such employment, all upon the terms and conditions hereinafter
set forth.
2. TERM. Unless sooner terminated pursuant to the provisions of this
Agreement, the initial term of employment under this Agreement shall be for a
period commencing as of January 1, 2000 and ending December 31, 2002 (the
"Employment Period"). The Employment Period shall be extended automatically for
one (1) year periods after the initial term under this Agreement and the end of
each one-year period thereafter, so that there shall be successive one-year
terms of employment under this Agreement commencing on January 1, 2003, unless
the Company or Executive gives written notice of non-extension to the other
party not less than one hundred eighty (180) days prior to the end of the
Employment Period. References herein to the "Employment Period" shall refer to
both such initial term and each such successive term.
3. BASE SALARY. Executive shall be entitled to receive a base salary
from the Company during the Employment Period (the "Base Salary") at the rate of
Four Hundred and Fifty Thousand Dollars ($450,000.00) per annum. In the event of
the merger of RailAmerica and RailTex and on the date of the merger, the Base
Salary shall become Five Hundred and Fifty Thousand Dollars ($550,000.00) per
annum, retroactive to January 1, 2000. The Base Salary shall be payable in
accordance with the current normal payroll policies of the Company, which
policies may be changed by the Company from time to time in its sole discretion,
and shall be subject to all appropriate withholding taxes. Effective each
January 1 during the Employment Period, commencing with January 1, 2001, the
Base Salary shall be increased by such percentage as corresponds to any annual
percentage increase in the consumer price index reported in "U.S. City Average:
All items, "under the table entitled "Consumer Price Index for All Urban
Consumers" (1967 equals 100), as published by the U.S. Department of Labor,
Bureau of Labor Statistics (the "Index"), calculated by multiplying the Base
Salary for the immediately preceding year by a fraction, the numerator of which
is the Index number for October 1 of the next preceding year. In addition to any
annual increases in the Base Salary as a result of changes in the Index, the
Base Salary shall be subject to annual reviews and upward adjustments, effective
each January 1 during the Employment Period, commencing with January 1, 2001, in
the sole discretion of the Committee. The Committee shall meet and determine the
upward adjustment, if any, to the Base Salary no later than the December 15
immediately preceding each January 1 during the Employment Period. An adjustment
to the Base Salary shall not be deemed a modification, amendment or waiver of
this Agreement except as the term "Base Salary" is used in this Agreement; all
other provisions of this Agreement shall, in that case, remain in full force and
effect.
4. GENERAL BONUSES. Executive shall participate, with respect to each
full fiscal year during the Employment Period, beginning with the fiscal year
ending December 31, 2000, in the Company's Corporate Senior Executive Bonus
Plan, which shall remain in effect during the entire Employment Period, subject
to such amendments, modifications, supplements or other changes as shall be
determined at any time, or from time to time, by the Committee.
5. OPTION GRANTS. Upon execution of this Agreement, the Company shall
grant to Executive options to purchase five hundred thousand (500,000) shares of
Common Stock, exercisable at $9.00 per share in three equal increments on
January 1, 2000, January 1, 2001, and January 1, 2002. The options shall have a
term of ten (10) years and such additional terms and conditions as set forth in
an option agreement between the Company and Executive in the form attached
hereto as Exhibit "A" (the "Stock Option Agreement"). Executive agrees to
execute such documentation and make such representations and acknowledgements as
may be reasonably necessary to permit the issuance and purchase of the shares in
compliance with federal and state securities laws and requirements of the Nasdaq
National Market.
6. OTHER BONUS OR INCENTIVE PAYMENTS. Executive shall, at all times
during the Employment Period, be eligible to receive, in addition to the Base
Salary, bonuses and other benefits provided for hereunder, additional bonuses,
stock options or grants, stock appreciation rights or other incentive payments
to be determined as to the amount and time of payment by the Committee.
7. BENEFITS.
(a) VACATION. For each twelve-month period from January 1 to
December 31 during the Employment Period, Executive shall be entitled to five
(5) weeks of vacation without loss of compensation or other benefits to which he
is entitled under this Agreement, to be taken at such times as Executive may
select and the affairs of the Consolidated Group may permit. Vacation may be
carried over from year-to-year, if the affairs of the Consolidated Group do not
permit it to be taken. Vacation entitlement unused at the end of the Employment
Period shall expire.
(b) EXECUTIVE BENEFIT PROGRAMS. Without limiting the
compensation or other benefits to which Executive may be entitled pursuant to
any other provision of this Agreement, during the Employment Period Executive
shall be entitled to participate in any pension, retirement, insurance or other
employee benefit plan that is maintained at that time by the Company for its
employees generally, including, without limitation, programs of life,
disability, basic medical and dental and supplemental medical and dental
insurance. Executive shall be entitled to the benefits under this Section on
terms as favorable as those granted to other employees of the Consolidated
Group. Notwithstanding the foregoing, during the Employment Period Executive
shall at all times be entitled to the following minimum benefits:
(i) Medical and dental insurance for himself and his
family, including supplemental coverage for any co-payments and deductibles;
provided, however, that the annual premiums, fees and other costs paid by the
Company for such insurance for Executive and his family shall not exceed Ten
Thousand Dollars ($10,000.00);
(ii) Long-term disability insurance for himself;
provide, however, that the annual premiums, fees and other costs paid by the
Company for such insurance for Executive shall not exceed Ten Thousand Five
Hundred Dollars ($10,500.00), it being the intent of the parties that
Executive's long-term disability benefits approximate sixty-seven percent (67%)
of the then-current Base Salary at all times during the Employment Period if
such long-term disability insurance in such amount is then reasonably available
for an annual premium, fees and other costs paid by the Company not to exceed
Ten Thousand Five Hundred Dollars ($10,500.00).
(iii) Term Life insurance on the life of Executive in
the benefit amount of One Million Dollars ($1,000,000.00), with the
beneficiaries thereof designated by Executive;
(iv) Directors' and Officers' Liability Insurance, if
reasonably available, provided that the terms and amounts of such insurance
shall be subject to approval by the Board;
(v) Indemnification by the Company to the fullest
extent permitted by law;
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(vi) Advancement or reimbursement of funds for all
reasonable travel, entertainment and miscellaneous expenses incurred by
Executive in connection with the performance of his duties under this Agreement;
provided, however, that Executive properly accounts for such expenses to the
Company in accordance with the Company's practices; and
(vii) An automobile allowance of One Thousand Dollars
($1,000.00) per month.
8. DUTIES. During the Employment Period:
(a) Executive agrees to serve as Chief Executive Officer of
the Company, and to serve in such other positions with the Company and the other
members of the Consolidated Group with such other titles as the Board may from
time to time determine. Executive shall exercise such powers and comply with and
perform such directions and duties in relation to the business and affairs of
the Consolidated Group as may from time to time be vested in or requested by the
Board and shall use his best efforts to improve and extend the businesses of the
Consolidated Group. Executive shall at all times report to, and his activities
shall at all times be subject to the direction and control of, the Board.
(b) Executive shall devote all of his business and
professional time, energy and skill to the service of the Consolidated Group and
the promotion of its interests and shall use his best efforts in the performance
of his duties hereunder. Subject to the restrictions of Section 12, Executive
may, however, devote an appropriate amount of time to directorships in other
profit and non-profit corporations, participation in professional organizations,
management of purely passive personal and family investments (including, without
limitation, in the capacity of a trustee, executor or guardian for family
members) and participation in community, civic and charitable activities;
provided, however, that these matters and the amount of time devoted to them
shall not conflict with or impair Executive's performance of his duties to the
Consolidated Group in any material way and shall not in the aggregate, on
average, involve more than five (5) hours of Executive's time per week.
Executive agrees to abide by all By-laws, rules and regulations established from
time to time by the Company, a majority of its shareholders and/or the Board;
and all commissions, fees or other income earned and received by Executive, in
furtherance of the business of the Consolidated Group, from any person other
than the Company shall be accepted by Executive for the amount of the Company.
9. CONFIDENTIALITY. In the course of Executive's relationship with the
Consolidated Group, some or all of the members of the Consolidated Group have
disclosed or made known, or may disclose or make known, to Executive, and
Executive has been or may be given access to or may become acquainted with,
certain information, trade secrets or both, relating to or useful in one or more
of the businesses of the Consolidated Group (collectively "Information"), and
which the Company considers proprietary and desires to maintain confidential.
As a material inducement to the Company to enter into this Agreement,
Executive covenants and agrees that, during the Employment Period and at all
times thereafter, Executive shall not in any manner, either directly or
indirectly, divulge, disclose or communicate to any person or entity, except to
or for the benefit of the Consolidated Group or as directed by the Board, any of
the Information which he may have acquired in the course of or as an incident to
his relationship with any member of the Consolidated Group, including, without
limitation, pursuant to his employment hereunder, the parties agreeing that such
Information affects the successful and effective conduct of the businesses of
the Consolidated Group and its goodwill, and that any breach of the terms of
this Section is a material breach of this Agreement. All equipment, documents,
memoranda, reports, records, computer software, disks, tapes, other means of
electronic data storage, files, materials, samples, books, correspondence,
lists, other written and graphic records and the like (collectively, the
"Materials"), affecting or relating to one or more of the businesses of the
Consolidated Group, which Executive shall prepare, use, construct, observe,
possess or control shall be and remain the sole property of the Consolidated
Group and/or in its exclusive custody and control, and must not be removed from
the premises of a member of the Consolidated Group or given to any person or
entity except for the benefit of the Consolidated Group or as directed by the
Board. Promptly upon termination of the Employment Period for any reason, the
Materials, Information and all copies thereof in the custody or control of
Executive shall be delivered promptly to the Company.
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10. CHANGE IN CONTROL.
A separate Change in Control Severance Agreement shall be entered into
between Executive and the Company, the terms of which shall be at least as
beneficial to Executive as those offered to all other Executives of the Company.
Until that Agreement is executed by Executive and the Company, the Change in
Control provisions contained in the Executive Employment Agreement between
Executive and the Company immediately preceding this Agreement (effective on 1
January 1998) shall govern.
11. TERMINATION OF EMPLOYMENT PERIOD.
(a) TERMINATION FOR JUDICIALLY-DETERMINED CAUSE. The Board may
terminate the Employment Period pursuant to the terms of this Section 11(a) FOR
CAUSE at the time by giving written notice to Executive. Such termination shall
become effective upon the giving of such notice, except that termination based
upon Section 11(a)(iv) below shall not become effective unless Executive shall
fail to correct such breach within thirty (30) days after receipt of written
notice thereof as provided in the preceding sentence. Upon any such termination
FOR CAUSE, Executive shall have no right to the Base Salary, bonuses or other
payments under Sections 3, 4, 5 or 6, or to participate in any employee benefit
programs under Section 7, as of the effective date of termination. For purposes
of this Section 11(a), "cause" shall mean: (i) Executive is convicted of a
felony; (ii) a judicial determination is made that Executive, in carrying out
his duties hereunder, has exhibited willful gross negligence or willful gross
misconduct resulting, in either case, in material harm to any member of the
Consolidated Group; (iii) Executive is convicted of misappropriating
Consolidated Group assets or convicted of otherwise defrauding the Consolidated
Group; or (iv) a judicial determination is made that Executive has materially
breached any provision of Section 8, 9, or 12 resulting in material harm to any
member of the Consolidated Group.
(b) OTHER "FOR CAUSE" TERMINATION.
(i) The Board may terminate the Employment Period
pursuant to the terms of this Section 11(b) FOR CAUSE if, as a result of
Executive's willful personal dishonesty, gross misconduct, breach of fiduciary
duty involving personal profit, gross negligence or failure to perform his
duties as set forth in Section 8, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or material
breach of any provision of this Agreement, there is material harm to any member
of the Consolidated Group. For purposes of this Section 11(b), no act, or
failure to act, on Executive's part shall be considered "willful" unless done,
or omitted to be done, by him not in good faith and without reasonable belief
that his action or omission was in the best interests of the Consolidated Group;
provided, however, that any act or omission to act on Executive's part in
reliance upon an opinion of counsel to the Company or at the direction of the
Board shall not be deemed to be willful. Notwithstanding the foregoing,
Executive shall not be deemed to have been terminated FOR CAUSE under this
Section11(b) unless and until there shall have been delivered to him a copy of a
certification by the Board finding, after reasonable notice to Executive and an
opportunity for him, together with his counsel, to be heard by the Board, that,
in the good faith opinion of the Board, Executive was guilty of conduct which is
deemed to be CAUSE within the meaning of this Section 11(b)(i) and specifying
the particulars thereof in detail. In the event that the Board delivers such a
certification of termination to Executive under Section 11(b)(i), and Executive
does not elect to challenge such termination in accordance with Section
11(b)(ii), the Employment Period shall terminate twenty-one (21) days after
Executive receives such certification.
(ii) Executive may elect to challenge any termination
FOR CAUSE by the Company of the Employment Period under Section 11(b)(i) by
providing written notice of such election to the Company within twenty-one (21)
days after Executive receives the certification of termination. Any such
challenge shall be first determined by arbitration to be conducted in Palm Beach
County, Florida, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. The decision of the arbitrator(s) (the
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"Arbitration Decision") may be appealed by Executive as set forth below. In the
event Executive challenges his termination FOR CAUSE, pending the Arbitration
Decision Executive shall continue to be paid the Base Salary under Section 3,
continue to be paid any bonuses under Sections 4 or 6, and continue to
participate in any employee benefit programs under Section 7 that were being
paid or provided immediately prior to the Board's certification of termination,
but Executive shall not be required to perform any duties pursuant to Section 8
or to otherwise report for work to the Company. If the Arbitration Decision
determines that Executive was properly terminated FOR CAUSE, Executive shall,
subject to his rights upon a successful judicial appeal of the Arbitration
Decision as set forth below, have no further rights from the date of such
Arbitration Decision to Base Salary, to any bonuses under Section 4 or 6, or to
participate in any employee benefit programs under Section 7, and the Employment
Period shall be considered to have terminated for purposes of the non-compete
and non-solicit provisions of Section 12 as of the date of the Arbitration
Decision. If the Arbitration Decision determines that Executive was properly
terminated FOR CAUSE, and Executive does not appeal the Arbitration Decision to
a court having jurisdiction thereof within thirty (30) days after the date of
the Arbitration Decision, then the Arbitration Decision shall be considered
final and binding on the parties. If (A) the Arbitration Decision determines
that Executive was improperly terminated FOR CAUSE, or (B) the Arbitration
Decision determines that Executive was properly terminated FOR CAUSE, Executive
appeals the Arbitration Decision to a court having jurisdiction thereof within
the thirty-day period and Executive successfully demonstrates to the court or to
the final reviewing court on further appeal that he was improperly terminated
FOR CAUSE, then in either such case the Employment Period shall be deemed to
have been terminated WITHOUT CAUSE under Section 11(e)(i) as of the date on
which Executive received the certification of termination, and Executive shall
be entitled to the remedies provided pursuant to that Section and shall not
thereafter be subject to the non-compete and non-solicit provisions of Section
12.
(c) DEATH OR DISABILITY. The Employment Period shall terminate
upon the death or disability of Executive. For purposes of this Section 11(c),
"disability" shall mean that, for a period of six (6) months in any twelve-month
period, Executive is incapable of substantially fulfilling the duties set forth
in Section 8 because of physical, mental or emotional incapacity resulting from
injury, sickness or disease as determined by an independent physician mutually
acceptable to the Board and Executive. Upon any such termination for death or
disability, the Company shall pay Executive or his legal representative, as the
case may be, the Base Salary under Section 3 through the date of such
termination of the Employment Period, plus any bonus earned but not yet paid
under the Corporate Senior Executive Bonus Plan, any bonus not yet earned or
earned but not yet paid under Section 4, any other bonus or incentive payments
earned but not yet paid under any other bonus or incentive plan under Section 6
and any benefits under Section 7 which have accrued through such date. In
addition, in the case of termination for disability, the Company shall continue
to pay Executive or his legal representative, as the case may be, the Base
Salary under Section 3 until Executive begins to receive payments under the
long-term disability policy paid for by the Company pursuant to Section 7(b)
(ii); provided, however, that, in no event, shall the Company continue to pay
the Base Salary for more than ninety (90) days after the date of such
termination for disability. Lastly, for a period of eighteen (18) months after
the date of termination for death or disability, the Company shall continue to
provide medical and dental insurance coverage to Executive and his family in the
form or forms provided under Section 7(b) immediately prior to the date of such
termination.
(d) VOLUNTARY TERMINATION. Executive may, on not less than one
hundred eighty (180) prior written notice to the Company specifically setting
forth the effective date thereof, terminate the Employment Period prior to the
end of the initial term or any successive term of the Employment Period under
Section 2. Upon any such termination, the Company shall pay Executive the Base
Salary under Section 3 Through the effective date of such termination of the
Employment Period, plus any bonus earned but not yet paid under the Corporate
Senior Executive Bonus Plan, any other bonus or incentive payments earned but
not yet paid under any other bonus or incentive plan under Section 6 and any
benefits under Section 7 which have accrued through such date.
(e) TERMINATION WITHOUT CAUSE.
(i) Prior to a Change in Control, if the Employment
Period is terminated by the Company other than pursuant to Section 11(a), 11(b)
or 11(c), the Company shall be in breach of this Agreement, and, in lieu of any
other damages or recoveries, the Executive shall be entitled to continue to
receive the Base Salary under Section 3 and benefits under Section 7 for the
remainder of the then-current initial or successive term of the Employment
Period, as the case may be, except that in no case will the amount received by
Executive be less than six months of Base Salary and benefits, payable in
accordance with the normal payroll and benefit program policies of the Company.
In addition, Executive shall be deemed to have been employed by the Company at
all times during such term of the Employment Period for purposes of determining
his entitlement to a bonus under the Corporate Senior Executive Bonus Plan, for
purposes of determining his entitlement to any other bonus or incentive payments
under Section 5 and Section 6 and for purposes of his options under Section 5.
Notwithstanding the foregoing, in the event that such Company termination occurs
within less than one-hundred eighty (180) days before the expiration of the
then-current initial or successive term of the Employment Period, the references
to the then-current initial or successive term of the Employment Period in the
first two sentences of this Section 11(e)(i) shall be read as referring also to
the next-succeeding successive term of the Employment Period following such
termination.
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(ii) Subsequent to a Change in Control, and until the
separate Change in Control Severance Agreement mentioned in Paragraph 10 is
entered into between Company and Executive, if (A) the Employment Period is
terminated by the Company other than pursuant to Section 11(a), 11(b) or 11(c),
or (B) there shall have occurred material reduction in Executive's compensation
or employment-related benefits, a change in Executive's compensation or
employment-related benefits, a change in Executive's status as Chief Executive
Officer of the Company, working conditions or management responsibilities or a
material change in the business objectives or investment policies of the
Company, and Executive voluntarily elects to immediately terminate the
Employment Period by giving notice of termination within sixty (60) days after
any such occurrence, or the last in a series of such occurrences, then in either
such case Executive shall be entitled to receive, in lieu of the Base Salary,
bonuses and other payments and benefits under this Agreement, and subject to the
provisions of subparagraph (y) below, a lump-sum payment in cash equal to three
hundred percent (300%) of Executive's "base period income" as determined under
subparagraph (x) below. Such amount shall be paid to Executive within fifteen
(15) days after the date of termination of the Employment Period.
(iii) Executive's "base period income" shall be the
Base Salary paid, bonuses paid or payable and any other compensation paid to him
with respect to the last full fiscal year preceding the date of termination.
(iv) Any amounts payable to Executive upon or as a
result of a Change in Control that would be considered an "excess parachute
payment" under Internal Revenue Code ss.280G, and regulations thereunder, shall
be reduced to the extent necessary so that such amounts do not exceed two
hundred ninety-nine percent (299%) of Executive's "base amount" (as computed in
accordance with Internal Revenue Code provisions and regulations) for
determining whether Executive has received an "excess parachute payment."
12. NON-COMPETITION AND NON-SOLICITATION.
(a) GENERAL. Executive acknowledges that he has performed
services or will perform services hereunder, and will acquire Information and
access to Materials, that will directly affect the businesses of the Consolidate
Group. Accordingly, the parties deem it necessary to provide protective
non-competition and non-solicitation provisions in this Agreement.
(b) NON-COMPETE AND NON-SOLICIT. Executive agrees with the
Company that, during the term set forth in Section 12(c), without the prior
written consent of the Board:
(i) Executive shall not, directly or indirectly,
perform any services or duties in any capacity, whether as a consultant,
independent contractor agent, director, officer, manager, supervisor or
employee, for any person or entity engaged in any business in the United States
that was engaged in by any member of the Consolidate Group at any time during
the Employment Period; provided, however, that, for purposes of this Section
12(b)(i), (A) in no event shall a purely passive personal or family investment
of less than five percent (5%) of the equity of any entity, without more, be
construed as the performance of duties or services for such entity; (B) a
business which is first engaged in by the Consolidated Group after the execution
of this Agreement shall be considered to be a business that was engaged in
during the Employment Period by the Consolidated Group only if and to the extent
that Executive agrees in writing at the time of the Consolidated Group's
commencement or acquisition of such business that it will be so considered; and
(C) after the termination of the Employment Period, Executive may become
involved with a short-line freight railroad, if such railroad does not operate
track within fifty (50) miles of track operated by any member of the
Consolidated Group.
(ii) Executive shall not employ or attempt to employ
or assist in employing, any employees of any member of the Consolidated Group
(whether or not such employment is full-time or part-time or pursuant to a
written contract), other than his personal secretary, for the purpose of having
such employee perform services for another person or entity within the United
States.
(c) TERM. The covenants of Executive set forth in Section
12(b) shall apply at all times (i) during the Employment Period, including any
period for which Executive is receiving the Base Salary and benefits pending an
Arbitration Decision pursuant in Section 11(b), and (ii), in the event of
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termination of the Employment Period pursuant to Section 11(a), 11(b) or 11(d),
or an election by Executive not to extend the Employment period pursuant to
Section 2, for a period to twelve (12) months after termination of the
Employment Period.
13. INJUNCTIVE RELIEF. The covenants of Executive set forth in Sections
9 and 12 are separate and independent covenants, for which valuable
consideration has been paid, the receipt, adequacy and sufficiency of which are
hereby acknowledged by Executive, and which have been made by Executive to
induce the Company to enter into this Agreement. Each of the aforesaid covenants
may be availed of, or relied upon, by the Company in any court of competent
jurisdiction, and each shall form the basis of injunctive relief and damages,
including expenses of litigation (including, without limitation, reasonable
attorneys' fees upon trial and appeal), suffered by the Company arising out of
any breach of any of the aforesaid covenants by Executive. The covenants of
Executive set forth in Sections 9 and 12 are cumulative to each other and to all
other covenants of Executive in favor of the Company contained in this
Agreement. Should any covenant, term or condition in Section 9 or 12 become or
be declared invalid or unenforceable by a court of competent jurisdiction, then
the parties request that such court judicially modify such unenforceable
provision consistent with the intent of Section 9 and 12 so that it shall be
enforceable as modified.
14. ENTIRE AGREEMENT. This Agreement, the Stock Option Agreement and
the other documents, plans and instruments contemplated herein represent the
entire understanding and agreement between the parties with respect to the
subject matter hereof, and supersede all other negotiations, understandings and
representations, if any, made by and between such parties.
15. AMENDMENTS. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
16. ASSIGNMENTS. Executive shall not assign his rights and/or
obligations hereunder. The Company may assign its rights and/or obligations
hereunder to any person or entity which purchases all or substantially all of
the assets of the Consolidated Group, subject to Executive's termination rights
under Section 11(e)(ii).
17. BINDING EFFECT. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns.
18. NOTICES. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be (as
elected by the person giving such notice) hand delivered by messenger or courier
service or mailed (airmail if international) by registered or certified mail
(postage prepaid), return receipt requested, addressed to:
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If to Executive: With a copy to:
Gary O. Marino Naason, Gildan, Yeager, Gerson & White, P.A.
3735 Devon Court South United National Bank Tower
Boca Raton, Florida 33496 1645 Palm Beach Lakes Boulevard
Suite 1200
West Palm Beach, Florida 33401
and Attention: Domenick R. Licoce, Esq.
5100 Broken Sound Blvd., N.W.
Boca Raton, Florida 33487
If to the Company: With a copy to:
RailAmerica, Inc. RailAmerica, Inc.
5100 Broken Sound Blvd., N.W. 5100 Broken Sound Blvd., N.W.
Boca Raton, Florida 33487 Boca Raton, Florida 33487
Attention: Chairman, Compensation Committee Attention: General Counsel
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered on the date
delivered if by personal delivery, or on the date upon which the return receipt
is signed or delivery is refused or the notice is designated by the postal
authorities as not deliverable, as the case may be, if mailed.
19. WAIVERS. The failure or delay of any party at any time to require
performance by the other party of any provision of this Agreement shall not
affect the right of such party to require performance of that provisions or to
exercise any right, power or remedy hereunder, and any waiver by any party of
any breach of any provision of this Agreement shall not be construed as a waiver
of any continuing or succeeding breach of such provision, a waiver of the
provision itself or a waiver of any right, power or remedy under this Agreement.
No notice to or demand on any party in any case shall, of itself, entitle such
party to any other or further notice or demand in similar or other
circumstances.
20. JURISDICTION AND VENUE. The parties acknowledge that a substantial
portion of the negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in Palm Beach County, Florida, and that,
therefore, without limiting the jurisdiction or venue of any other federal or
state courts, each of the parties irrevocably and unconditionally (a) agrees
that any suit, action or legal proceeding arising out of or relating to this
Agreement may be brought in the courts of record of the State of Florida in Palm
Beach County or the court of the United States, Southern District of Florida;
(b) consents to the jurisdiction of each such court in any such suit, action or
proceeding; (c) waives any objection which it or he may have to the laying of
venue of any suit, action or proceeding in any of such courts; and (d) agrees
that service of any court papers may be effected on such party by mail, as
provided in this Agreement, or in such other manner as may be provided under
applicable laws or court rules in such courts.
21. ENFORCEMENT COSTS. If any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provisions of this Agreement, the ultimately successful or prevailing party
shall be entitled to recover reasonable attorneys' fees, costs and other
expenses, even if not taxable as court costs (including, without limitation, all
such fees, costs and expenses incident to appeals), incurred in that action,
arbitration or other proceeding, in addition to any other relief to which such
party may be entitled.
-8-
22. REMEDIES CUMULATIVE. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity, whether by statute,
rule or otherwise. No single or partial exercise by any party of any right,
power or remedy hereunder shall preclude any other or further exercise thereof.
23. GOVERNING LAW. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Delaware without regard to principles of
conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
/S/ DONALD D. REDFEARN RAILAMERICA, INC.
-------------------------
Donald D. Redfearn
Secretary
By: /s/ CHARLES SWINBURN
----------------------------------------
Charles Swinburn, Chairman Audit and
Compensation Committee
/s/ GARY O. MARINO
----------------------------------------
/s/ DOROTHY SINGER Gary O. Marino
-------------------------
Witness
/s/ VIVIAN TRAPNELL
-------------------------
Witness
-9-
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10-K405’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 1/1/03 | | 1 |
| | 12/31/02 | | 1 | | | | | 10-K |
| | 1/1/02 | | 2 |
| Filed on: | | 4/2/01 |
| | 1/1/01 | | 1 | | 2 |
| For Period End: | | 12/31/00 | | 1 |
| | 1/1/00 | | 1 | | 2 |
| List all Filings |
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