Exhibit 10.11


 


AMENDED AND
RESTATED


EMPLOYMENT
AGREEMENT


 


THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (the “Agreement”) is
entered into as of the      day of
                      ,
2010  by and between. AMERICOLD
LOGISTICS, LLC (hereinafter referred to as the “Employer”)
and Jozef Opdeweegh (hereinafter referred to as the “Employee”).


 


WHEREAS, the Employee
is currently employed by the Employer as Chief Executive Officer of the
Employer pursuant to an Employment Agreement entered into as of April 1,
2009 by the Employer and the Employee (the “Prior Agreement”);


 


WHEREAS, the Employer
wishes to continue to retain the services of the Employee as Executive Chairman
of the Employer, and the Employee is willing to make his services available to
the Employer, on the terms and subject to the conditions set forth herein; and


 


WHEREAS, the Employer
and the Employee desire to amend and restate the Prior Agreement as of the date
hereof;


 


NOW, THEREFORE, in
consideration of the terms, conditions, covenants and obligations herein
contained (the adequacy of which is hereby acknowledged by each of the
parties), the parties do hereby agree as follows:


 


ARTICLE 1 — SCOPE OF EMPLOYMENT


 


1.01                         Employment.  The Employer
hereby agrees to employ the Employee, and the Employee hereby accepts such
employment, in the position of Executive Chairman of the Employer, to perform
the services described herein for Employer and its parent, subsidiaries and
affiliates upon the terms and conditions set forth in this Agreement.


 


1.02                         Duties and Responsibilities. 
As Executive Chairman, the Employee will report to the Board of Trustees
of Americold Realty Trust (the “Board”).  The duties and responsibilities of the
Employee shall consist of those deemed by the Board to be necessary or
incidental to perform the functions of such aforesaid position.  The Employee shall perform such duties and
exercise such powers, in each case, from such locations where the Employer and
its affiliates carry on business or have offices.  The Employee’s duties and powers may from
time to time be changed by the Board.


 


1.03                         Full and Faithful Service. 
The Employee will devote to the business and affairs of the Employer all
of his working time, attention and ability to carry out the duties of his
position, to the exclusion of any other employment or gainful occupation, and
will ensure that he is not at any time engaged in conduct which would
constitute an actual or potential conflict with the interests of the
Employer.  The Employee agrees that he
will, in the performance of his duties, promote the interests, business and
reputation of the Employer and shall perform all such duties as are essential
or conducive to the efficient management thereof in accordance with the rules and
policies of the Employer.


 


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The Employer agrees that the Employee will be
free to hold equity interests in businesses which do not compete with the
business of the Employer.


 


1.04                         Acknowledgement. 
The Employee acknowledges that the effective performance of his duties
requires the highest level of integrity and the Employer’s complete confidence
in the Employee’s relationship with other employees of the Employer and with
all persons dealt with in the course of his employment.  The Employee shall diligently, faithfully and
honestly serve the Employer during the term of his employment hereunder and
shall use his best efforts to promote the interests of the Employer.  The Employee will not engage in any conduct
which is inconsistent with the letter and spirit of this Article 1.04.


 


ARTICLE 2 — TERM OF EMPLOYMENT


 


2.01                         Term.  The term of
employment pursuant to this Agreement shall be for an indefinite period
commencing on the execution of this Agreement, unless this Agreement is
terminated earlier by either of the parties in accordance with the provisions
set out herein.


 


ARTICLE 3— REMUNERATION


 


Certain provisions of this Article 3
are subject to the provisions of Article 8.12 below.


 


3.01                         Base Salary. 
As remuneration for his services hereunder, the Employee shall be paid a
base salary at the rate of Eight Hundred Twenty-Five Thousand (USD $825,000)
Dollars per annum (the “Base Salary”)
which shall be paid in arrears and in equal bi-weekly installments.  The Employee’s Base Salary will be reviewed
and may be increased or decreased by the Employer from time to time at the
discretion of the Board, but in any event will be reviewed not later than
January, 2011, and annually thereafter, but with no obligation on the part of
the Employer to adjust it.


 


3.02                         Vacation Pay. 
During the term of employment, the Employee will be entitled to 5 weeks
vacation per annum.  Such vacation may be
taken at such time or times as the Employee may determine, having regard to the
Employer’s business and affairs, and provided such time, in the opinion of
Employee, acting reasonably, does not materially interfere with the Employee’s
duties hereunder.  The Employee will be
permitted to carry forward any unused vacation (up to a maximum of 5 weeks, so
that no more than a maximum of 10 weeks of vacation in the aggregate may be
taken in any one calendar year) into the next calendar year.  In the event that the Employee’s employment
is terminated, the Employee shall be entitled to a pro-rated vacation leave
with pay for the portion of the calendar year that he was actively
employed.  Except as otherwise provided
in this Article 3.02, Employee’s vacation benefits will be governed by the
Employer’s vacation policy as then in effect.


 


3.03                         Benefits.  The Employee
will be entitled to participate in all insurance and other benefit plans which
the Employer offers to its U.S. employees at a level


 


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commensurate with that of
similarly situated U.S. employees.  These
benefits will be governed by and provided in accordance with the applicable
plan documents, insurance policies or Employer policies then in effect.  The Employee and his family, including any
domestic partner, spouse, or children, will be provided full health coverage,
including all expenses associated with medical, dental, and vision treatment
and preventative care.  This full
reimbursement coverage includes all costs for prescriptions and over the
counter medications.  In the event that
any Employee contributions, deductibles, co-pays, or other upfront
out-of-pocket Employee payments are required under these benefit plans, the
Employer will promptly and fully reimburse the Employee for any and all such
expenses.  Such reimbursement will be
calculated on a fully grossed-up basis thereby neutralizing any applicable
state or federal taxes with the result that there are no net costs to the
Employee for these benefits.  Non-health
related medical care (such as cosmetic procedures) is excluded.


 


3.04                         Automobile.  The Employer
will provide the Employee a car allowance of $1200 USD per month, subject to
increase from time to time as published in company policy.  In addition, the Employer will pay for all
gas, oil, insurance, maintenance, repairs, and other expenses reasonably
incurred by the Employee in the operation and maintenance of the automobile, in
accordance with the Employer’s reimbursement policy as then in effect.


 


3.05                         Incentive Compensation. 
The Employee will be entitled to participate in the Employer’s short
term management incentive plan.  The
incentive payable under the short term management incentive plan (hereinafter
referred to as the “Entitlement”)
shall be determined on the basis of achievement of target EBITDA (after
corporate expenses) for the applicable fiscal year, or such other performance
measure as the Board or the Compensation Committee of the Board shall establish
in its discretion (the “Target”). Such
Target shall be set annually by the Board or the Compensation Committee of the
Board.  The Entitlement for each fiscal
year will be determined pursuant to the Employer’s short term management
incentive plan as in effect from time to time. 
The Entitlement will have a target amount of 0% of the Employee’s annual
Base Salary at 95% of Target, and a maximum amount of 200% of the Employee’s
annual Base Salary at 105% of Target. 
The Entitlement shall be paid at the same time as short term management
incentives are payable to other similarly situated employees of the Employer,
but (for each fiscal year beginning with the 2010 fiscal year) in any event no
later than March 15 following the end of the fiscal year to which the
Entitlement relates.  Any unpaid
Entitlement is deemed to be earned (and, except as otherwise provided in Article 4.02
(b), the Employee shall be entitled to receive such amount) if and only if the
Employee has been continuously employed through the last day of the fiscal year
for which the Entitlement is being determined. 
Except as otherwise set forth in this Article 3.05, the Entitlement
is subject to and governed by the terms of the short term management incentive
plan documents as in effect from time to time and may be modified or terminated
in accordance with the terms of the plan.


 


3.06                         Expenses.  The Employee
shall be reimbursed for all reasonable and direct out-of-pocket expenses
incurred in connection with the performance of his duties hereunder subject to
and consistent with applicable policies of the Employer.  Without


 


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limiting the foregoing,
as a condition to the reimbursement of such expenses, the Employee shall
furnish to the Employer receipts for expenses incurred.


 


3.07                         Participation in Long Term Incentive Plan. 
The Employee shall be eligible to participate in any long term incentive
plan established by the Board, in such amounts and at such times as the Board
or the Compensation Committee of the Board shall determine in its
discretion.  This benefit is subject to
and governed by the terms of the long term incentive plan documents and may be
modified or terminated in accordance with the terms of the plan.


 


3.08                         Tax Consultation. 
The Employee will be reimbursed for up to $3,000 USD annually for
expenses associated with an annual consultation with a tax consultant for the
purposes of long term financial planning, in accordance with Employer’s written
reimbursement policy as then in effect.


 


3.09                         Intentionally omitted.


 


3.10                         Tax Equalization. 
In the event the Employee is required to reside outside of the United
States for an extended period of time, the parties intend that Employee’s net
income tax liability with respect to compensation and benefits payable
hereunder shall be no greater than the net income tax liability the Employee
would incur if the Employee resided in and performed all services hereunder in
the United States at the Employee’s last address before any assignment to a
locale outside the United States (the “Targeted Tax Effects”).  If for any taxable year the Employee believes
that services required hereunder have caused or will cause his actual aggregate
net income tax liability (“Actual Tax Effects”)
to exceed the Targeted Tax Effects, then Employee shall notify Employer as to
why he so believes this and his computations of the differences, and Employer
shall then promptly pay to Employee (on a pre-tax basis as needed to ensure
that the Actual Tax Effects taking into account such payment will be no greater
than the Targeted Tax Effects) the amount(s) so requested no later than
the date such taxes are due or are scheduled to be due (or reimburse Employee
for such amount(s), together with interest at the prime rate of interest as
published by the Wall Street Journal, as to any amounts Employee has already
paid), provided, however, that if Employer disagrees with the reasoning or
computations submitted by Employee, then Employer and Employee shall mutually
select an accounting firm having over 50 professional CPAs (the “Designated
Firm”) to make a determination on the issue, and the determination of the
Designated Firm shall be final and binding on all matters addressed in the
notice.  It is acknowledged and
understood that as circumstances and legislation may change over time, Employee
may give notices as he reasonably deems necessary to address changing
issues.  It is also acknowledged and understood
that the determination of the Designated Firm may include an instruction for
Employer to continue making such payments periodically as to any items raised
that are likely to involve repetitive payments hereunder as such Designated
Firm may determine necessary to achieve the intent of this provision that the
Actual Tax Effects not exceed the Targeted Tax Effects.  Any tax equalization payment pursuant to this
Article 3.10 shall in any event be paid by the latest of (a) the end
of the second calendar year beginning after the calendar year in which Employee’s
U.S. federal income tax return is required to be filed (including any


 


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extensions) for the year
to which such tax equalization payment relates; (b) the end of the second
calendar year beginning after the latest calendar year in which Employee’s
foreign tax return or payment is required to be made or filed for the year to
which such tax equalization payment relates; or (c) in the case of
expenses incurred due to a tax audit or litigation addressing the existence or
amount of a tax liability, such later date as permitted under Treasury
Regulations Section 1.409A-1(b)(8)(iii).


 


ARTICLE 4 — TERMINATION


 


4.01                         Termination. Subject to the provisions of Article 8.12
below, this Agreement and the employment contemplated hereunder are terminable
at will by either the Employee or the Employer at any time, with or without
cause.  Specifically employment may be
terminated in the following manner and in the following circumstances:


 


(a)                                  By the Employee at any time and for any
reason, by giving three (3) months
prior written notice to Employer;


 


(b)                                 By the Employer, at any time, for Cause,
in which case the employment and this Agreement shall terminate immediately upon
written notice from the Employer to the Employee (subject to the notice and
cure requirements set forth in this paragraph). 
For purposes of greater certainty, any of the following events shall
constitute “Cause” for termination: (i) Employee
commits any act of gross negligence, fraud or willful misconduct, causing harm
to the Employer; (ii) the conviction of Employee of an offense that
adversely affects the Employer; (iii) Employee intentionally obtains any
material for personal gain, profit or enrichment at the expense of the Employer
or from a transaction in which the Employee has an interest which is adverse to
the interest of the Employer, unless Employee shall have obtained the prior
written consent of the Board; (iv) Employee abuses non-prescription
medication, narcotics, or other controlled or intoxicating substances, and such
abuse materially impairs Employee’s ability to perform his normal duties; (v) failure
by Employee to perform his duties and responsibilities, including reasonable
directives from the Employer or the Board, in good faith to the best of
Employee’s ability and failure to cure such non-performance within thirty (30)
days after notice of such failure from the Employer to the Employee; or (vi) Employee
acts in a manner which is intended to be materially detrimental or damaging to
the Employer’s reputation, business operations or relations with its other
employees, customers or suppliers;


 


(c)                                  By the Employer, at any time, by notice
in writing of the Employee’s breach or non-observance of any of the terms of
this Agreement which breach is not cured by the Employee within thirty (30)
days of receipt of such notice;


 


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(d)                                 Upon the death of the Employee, in which
case the employment and this Agreement shall terminate on the date of death;


 


(e)                                  By the Employer due to the Disability of
Employee.  For purposes of this
Agreement, “Disability” shall mean the
inability of Employee to perform the duties, responsibilities and obligations
of Employee’s position for six (6) months (in the aggregate) within any
consecutive twelve (12) month period by reason of a medically determinable
physical or mental impairment, as determined in good faith by Employer; or


 


(f)                                    By the Employer at any time and for any
reason without Cause by delivery of written notice of termination to the
Employee.


 


4.02                         Payments on Termination. 
In the event that this Agreement and the employment contemplated
hereunder are terminated pursuant to Article 4.01, the Employee shall be entitled
to the payments and benefits provided in this Article 4.02 (subject to
Articles 4.03 and 4.04 below), and the Employer shall have no further
obligation to the Employee under this Agreement except as expressly provided in
this Article 4.02.


 


(a)                                  Upon termination for any reason, the
Employee shall receive any accrued and unpaid Base Salary, accrued and unpaid
Entitlement for any completed fiscal year, and accrued and unpaid
reimbursements (including tax equalization payments, if applicable) pursuant to
this Agreement, in each case as of the date of such termination, as well as any
earned or accrued benefits to which the Employee may be entitled under any
benefit plan maintained by the Employer.


 


(b)                                 Solely in the event of termination by the
Employer without Cause pursuant to Article 4.01(f), and subject to the
requirements of Article 4.04, the Employee shall be entitled to the
following: (i) the sum of One Million Five Hundred Thousand Dollars
($1,500,000), in the aggregate, payable in monthly equal monthly installments
for a period of twelve (12) months after the date of the notice of termination;
(ii) continued full participation in the Employer’s benefit programs
(including full reimbursement for all health, dental, and vision expenses, but
excluding participation in the Employer’s short or long term disability plans)
for a period of twelve (12) months; (iii) continuation of automobile
allowance as well as automobile operating expense reimbursement pursuant to Article 3.04
for a period of twelve (12) months after the date of termination; and (iv) if
Employee is terminated other than on December 31st in any year, a
payment equal to the Entitlement Employee would otherwise have received for
such year but for the termination (based on the Employer’s achievement of
target EBITDA or other applicable target) multiplied by a fraction, the
numerator of which is the number of months in the fiscal year for which
Employee was employed (including any month in which 11 or more days are worked)
and the denominator of which is 12, which shall be paid at


 


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such time as the Entitlement would otherwise have been
payable under this Agreement.


 


4.03                         Deductions on Termination. 
The Employee authorizes the Employer to deduct from any payment due to
the Employee on termination, amounts owed to the Employer by the Employee by
reason of purchases, advances, loans, unauthorized expense claims, or other
obligations; provided, however, that such deduction shall be permitted only to the
extent that Employer determines in good faith that such deduction would not
cause a violation of Section 409A (as defined in Article 8.07) and to
the extent otherwise permitted by applicable law.


 


4.04                         Release of Claims. 
If any of the events referred to in Article 4.01 occur, this
Agreement and the employment of the Employee shall be wholly terminated except
in respect of the Employee’s rights under Article 4.02, the Employee’s
covenants and obligations pursuant to Articles 4.04, 5 and 6 and the Employer’s
rights pursuant to Articles 4.03 and 7, which shall survive such termination
and continue in full force and effect. 
In order to obtain and as a condition of receiving the severance and
other benefits set forth in Article 4.02(b) due upon or as a result of termination (excluding benefits
to which the Employee is entitled by law pursuant to COBRA), the Employee must
sign within twenty-one (21) days following the date of such termination (or
such longer period as required to be provided by law), and must not revoke, a
general release of all claims in the form attached hereto as Attachment A in
favor of the Employer, its parent, its subsidiaries, affiliates, current and
former directors, officers, employees, attorneys and agents, or benefit plans
or administrators of any and all claims to maximum extent allowable by
law.  Any such severance and other
benefits that would otherwise be due and payable to the Employee prior to
signing of the release and lapse of the applicable revocation period (other
than continued participation in the Employer’s benefit plans pursuant to clause
(ii) of Article 4.02(b)) shall be accumulated and paid no later than
ten (10) days following the lapse of such revocation period.


 


4.05                         Reasonableness. 
The parties hereto acknowledge and agree that there are no implied
rights whatsoever with respect to the termination of this Agreement and the
employment contemplated hereunder.


 


ARTICLE 5 — CONFIDENTIALITY


 


5.01                         Definitions. 
For the specific purpose of the covenants contained in Articles 5 and 6
and for all other purposes under this Agreement, certain terms are defined as
follows:


 


(a)                                  Confidential Information.  “Confidential
Information” shall include, without limitation, all technical and non-technical
data, compilations, programs and methods, techniques, drawings, processes,
financial data, actual and prospective customer lists, customer route books and
materials, documents containing names and addresses of current or former
customers


 


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that includes their past or present buying patterns or
habits, sales reports, service reports, price lists and discount lists, methods
and/or procedures regarding pricing, product cost and profit strategies or
structures, product formulae, methods and/or procedures related to sales or
services, methods and/or procedures of operation, special training of sales
representatives, continuous market updates and merchandising strategies
relating to the Employer and the Employer’s Business, which is communicated to,
supplied to or observed by Employee, either directly or indirectly, at any time
during the employment relationship, whether or not received from the Employer
or from any actual or potential customer, client or supplier of the Employer,
or from any person with a business relationship, whether contractual or
otherwise, with the Employer.  The term “Confidential
Information” shall not include any information that the Employee can prove: (i) was
known or independently developed by Employee prior to the time of receipt from
the Employer, as long as such information was not acquired, either directly or
indirectly, from the Employer; (ii) is or becomes publicly known through
no direct or indirect act, fault or omission of Employee; (iii) is or
becomes part of the public domain through no direct or indirect act, fault or
omission of Employee; or (iv) was received by Employee from a third party
having the legal right to transmit the same without restriction as to use and
disclosure and such receipt was not in connection with any business
relationship or prospective business relationship with the Employer; provided,
however, that a combination of features shall not be deemed to be within the
foregoing exceptions merely because individual features are in the public domain
or otherwise within such exceptions, as previously described, unless the
combination itself is in the public domain or otherwise entirely within any one
such exception.


 


(b)                                 Competing Business.  “Competing
Business” shall mean any person or entity that engages in a business that is
the same or substantially similar to the Employer’s Business, and only that
portion of the business that is in competition with the Employer’s Business.


 


(c)                                  Employer’s Business.  “Employer’s
Business” shall mean serving as a third-party provider of supply chain
solutions for the consumer packaged goods industry and providing
temperature-controlled food distribution services.


 


(d)                                 Inventions.  “Inventions”
shall mean any and all developments, discoveries, concepts, methods, processes,
designs, inventions, ideas or improvements, whether or not patentable, which
are conceived, made, implemented or reduced to practice by Employee, whether
alone or acting with others, during Employee’s employment with the Employer
that are developed on the Employer’s time or with the utilization, either
directly or indirectly, of the Employer’s equipment, supplies, facilities,
resources, Confidential Information or Trade Secrets.


 


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(e)                                  Territory.  “Territory”
shall mean the geographic scope of Employee’s responsibilities on behalf of the
Employer.


 


(f)                                    Trade Secrets.  “Trade
Secrets” shall mean information not generally known about the Employer’s
business which is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy or confidentiality and from which the
Employer derives economic value from the fact that the information is not
generally known to other persons who can obtain economic value from its
disclosure or use, and shall include any and all Confidential Information which
may be protected as a trade secret under any applicable law, even if not
specifically designated as such.  Unless
told otherwise by the Employer or the Board, Employee shall treat all
Confidential Information as Trade Secrets. 
Moreover, this definition of Trade Secrets shall not negate any more
expansive definition of Trade Secrets provided by applicable law.


 


5.02                         Non-Disclosure of Confidential
Information and Trade Secrets.  Employee
recognizes the interest of Employer in maintaining the confidential nature of
its Confidential Information and Trade Secrets. 
Accordingly, Employee covenants and agrees that Employee will not, at
any time, other than in the performance of Employee’s duties for the Employer,
both during and after Employee’s employment with the Employer, communicate or
disclose to any person or entity, or use for Employee’s benefit, or for the
benefit of any other person or entity, including any Competing Business, either
directly or indirectly, any of the Employer’s Trade Secrets and/or Confidential
Information.  Notwithstanding the
foregoing, the prohibition in the preceding sentence regarding the disclosure
or use of Confidential Information other than Trade Secrets shall end thirty-six
(36) months after the termination, for any reason, of Employee’s employment
with the Employer.  For the avoidance of
doubt, the disclosure or use of Trade Secrets by Employee is prohibited for the
life of Employee, or until the Trade Secret information becomes publicly
available through no direct or indirect fault or act of Employee.


 


5.03                         Property and Documents. 
The Employee acknowledges, understands and agrees that all memoranda,
notes, records, charts, formulae, data, software, source code, object code,
client lists, price lists, marketing plans, financial information and other
documents made, received, held or used by the Employee during the course of his
employment shall be the property of the Employer and shall be delivered by the
Employee to the Employer upon request at any time during the course of
employment or on termination of employment as hereinbefore provided.  With respect to all Confidential Information,
Trade Secrets and other documents of the Employer held by the Employee, the
Employee acknowledges that he is in a position of trust and subject to a
fiduciary duty to use the information only in the interests of the Employer and
its business.


 


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ARTICLE 6 — NON-COMPETITION/NON-SOLICITATION


 


6.01                                                                           Non-Competition/Non-Solicitation. 
The Employee acknowledges that by reason of his employment with the
Employer, he will or may develop a close working relationship with the Employer’s
suppliers and customers, gain a knowledge of the Employer’s methods of
operation and acquire and be exposed to confidential materials and information,
all of which would cause irreparable harm and injury to the Employer if made
available to a competitor or used for competitive purposes.  Accordingly, the Employee agrees that:


 


(a)                                  The Employee shall not, for any reason,
directly or indirectly, either during the term of this Agreement or for a
period of twelve (12) months following the termination of this Agreement,
regardless of how that termination should occur, hire any employees of the
Employer or induce or attempt to induce, or solicit or attempt to solicit, any
of the employees of the Employer to leave their employment;


 


(b)                                 The Employee shall not, for any reason,
directly or indirectly, without the prior written consent of the Employer,
either during the term of this Agreement or for a period of twelve (12) months
following the termination of this Agreement, regardless of how that termination
should occur, solicit or otherwise contact any customer which was serviced or
solicited by the Employer and with which the Employee had contact during his
employment with the Employer, for the purpose of selling any products or
services to that customer, or for purposes of soliciting orders for any
products or services from that customer or supplier, where such products or
services are the same as or substantially similar to or in any way competitive
with the products or services sold by the Employer at the time of termination
of this Agreement;


 


(c)                                  The Employee shall not, for any reason,
directly or indirectly, without the prior written consent of the Employer,
either during the term of this Agreement or for a period of twelve (12) months
following the termination of this Agreement, regardless of how that termination
should occur, solicit or otherwise contact any supplier of the Employer with
which the Employee had contact on behalf of the Employer for a competing
business; and


 


(d)                                 The Employee shall not, for any reason,
directly or indirectly, without the prior written consent of the Employer,
either during the term of this Agreement or for a period of twelve (12) months
following the termination of this Agreement, regardless of how that termination
should occur, become involved or engaged as an employee, partner, joint
venture, principal, consultant, agent, distributor, representative, shareholder
(except to the extent of less than 5% ownership interest of the outstanding
shares of a publicly held corporation), director, officer, independent
contractor, or in any other capacity whatsoever with any person, firm,
association, organization, syndicate, company, partnership, proprietorship,
corporation or other legal entity, engaged in any activities which are
competitive with


 


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or similar to the products or services of the
Employer, where such activities are carried out, in whole or in part, within
the territories in which the Employee served or solicited suppliers or
customers during the term of this Agreement to the extent that such territories
include suppliers or customers of the Employer at the time of termination of
this Agreement.  The Employee further
agrees that he will not compete with the Employer in any business which is in any
respect competitively similar to any business engaged in by the Employer in the
territories in which the Employer serviced or solicited suppliers or customers
to the extent that such territory includes suppliers or customers of the
Employer at the time of termination of this Agreement.


 


6.02                                                                           Reasonableness and Severability. 
The parties to this Agreement acknowledge and agree that the scope of
the covenants contained in Articles 5 and 6 are, in all respects, and
particularly in respect of area, time and subject matter no more than what is
reasonably required to protect Employer’s legitimate business interests
(including but not limited to Employer’s interests in Confidential Information
and/or Trade Secrets, Employer’s customer and supplier relationships and
Employer’s goodwill).  The parties to
this Agreement further agree that if any limitation or provision contained in
these covenants is determined to be void or unenforceable in whole or in part,
it shall not be deemed to affect or impair the validity of any other covenant
or provision hereof.


 


ARTICLE 7 — PARTIES’ RECOURSE


 


7.01                                                                           Injunctive Relief. 
The Employee acknowledges and agrees that in the event of any violation
of the covenants provided for in Articles 5 and 6, the Employer shall be
entitled as a matter of course to injunctive relief in addition and without
prejudice to any other remedy the Employer may have at law.  In the event of breach of the Agreement by
the Company, Employee is entitled to recover all applicable damages, including
costs, attorney fees, and interest.


 


ARTICLE 8 — GENERAL


 


8.01                                                                           Entire Agreement. 
This Agreement and the terms hereof shall constitute the entire
agreement between the parties hereto with respect to all of the matters herein
and its execution has not been induced by, nor do either of the parties hereto
rely upon or regard as material any representations or writings whatsoever not
incorporated herein and made a part hereof. 
The Prior Agreement and any other previous agreements, written or oral,
express or implied, between the Employer and the Employee relating to the
employment of the Employee by the Employer are terminated and cancelled, and
the Employee and the Employer release and forever discharge each other of and
from all manners of action, causes of action, claims and demands whatsoever
under or in respect of the Prior Agreement or any other such previous
agreement.


 


8.02                                                                           Amendments.  This
Agreement shall not be amended, altered or qualified except by a memorandum in
writing signed by both of the parties hereto.


 


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8.03                                                                           Notice.  Any notice
required or desired to be delivered under this Agreement shall be in writing
and shall be delivered personally, by courier service, by registered mail,
return receipt requested or electronically and shall be effective upon dispatch
to the party to whom such notice shall be directed provided notice to the
Employer is properly addressed to the CEO and the Executive Vice-President of
Human Resources.  Notice to Employee at
the last known address provided to the Employer by Employee is adequate.  Either party may, by notice given in
accordance with the foregoing, change his or its address for the purposes of
this Agreement.


 


8.04                                                                           Further Assurances. 
The parties hereto and each of them hereby consents and agrees to do
such things, attend such meetings and to execute such further documents and
assurances as may be deemed necessary or advisable from time to time in order
to carry out the terms and conditions of this Agreement in accordance with its
true intent.


 


8.05                                                                           Waivers.  No waiver of
any breach of default of any of the provisions hereof shall be effective unless
in writing and signed by the party to be charged with such waiver.  No waiver shall be deemed a continuing waiver
or waiver in respect of any subsequent breach or default, either of a similar
or different nature, unless expressly so stated in writing.


 


8.06                                                                           Severability. 
If any provision of this Agreement is determined to be illegal or
unenforceable, in whole or in part, such illegal or unenforceable provision or
part thereof, shall be severable from this Agreement and shall not affect the
remaining provisions hereof.


 


8.07                                                                           Compliance with Section 409A.


 


(a)                                  The payments and benefits under this
Agreement are intended to comply with, or 
be exempt from, the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) and the
Treasury Regulations and other applicable guidance thereunder (collectively, “Section 409A”) and this Agreement shall be interpreted
in accordance with such intent.  Each
payment or installment under this Agreement shall be considered a separate
payment for purposes of Section 409A.


 


(b)                                 Notwithstanding anything in this
Agreement to the contrary, the following rules shall apply to any portion
of any payment or benefit payable under this Agreement as a result of
termination of Employee’s employment that is not exempted from Section 409A
(“409A Severance Compensation”):


 


(i)                                     If the termination of Employee’s
employment does not qualify as a “separation from service” within the meaning
of Treasury Regulations Section 1.409A-1(h) from the Employer’s
Controlled Group, then 409A Severance Compensation will not commence until a “separation
from service” occurs.  For this purpose,
the “Employer’s Controlled Group” means (A) Employer,
(B) any corporation which is a member of a controlled group of


 


12

















 


corporations (as defined in Section 414(b) of
the Code) which includes Employer and (C) any trade or business (whether
or not incorporated) which is under common control (as defined in Section 414(c) of
the Code) with Employer.


 


(ii)                                  If at the time of Employee’s separation
from service, Employee is a “specified employee” as defined in Section 409A,
as determined in good faith by Employer, then any payments of 409A Severance
Compensation that would otherwise be due and payable within the six (6) month
period following Employee’s separation from service shall be accumulated and
paid on the first business day after the end of such six (6) month period
or, if earlier, the date of Employee’s death, and the remaining 409A Severance
Compensation shall be paid on the date otherwise provided in this Agreement.


 


(c)                                  With respect to any reimbursements of any
eligible expenses, or any provision of in-kind benefits to Employee, under this
Agreement that are not excludable from Employee’s income for federal income tax
purposes, such reimbursements or in-kind benefits shall be subject to the
following conditions: (i) the reimbursement of an eligible expense shall
be made on the date on which it normally would be made pursuant to Employer’s
reimbursement policies, but in any event no later than the last day of the
calendar year following the year in which the expense was incurred; (ii) the
expenses eligible for reimbursement or the amount of in-kind benefits provided
in one calendar year shall not affect the expenses eligible for reimbursement
or the amount of in-kind benefits provided in any other taxable year, except
for any medical reimbursement arrangement providing for the reimbursement of
expenses described in Section 105(b) of the Code; and (iii) the
right to any such reimbursements or in-kind benefits shall not be subject to
liquidation or exchange for another benefit. 
Any tax gross-up payments will be paid on the date on which they
normally would be paid pursuant to this Agreement and Employer’s reimbursement
policies, but in any event no later than the last day of the calendar year
following the year in which Employee remits the related taxes or, in the case
of expenses incurred due to a tax audit or litigation addressing the existence
or amount of a tax liability, such later date as permitted under Treasury
Regulations Section 1.409A-3(i)(1)(v).


 


8.08                                                                           Headings.  The insertion
of headings in the division of this Agreement into paragraphs and subparagraphs
is for convenience of reference only and shall not affect the interpretation
hereof.


 


8.09                                                                           Successors and Assigns. 
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, legal personal
representatives, successors and permitted assigns.


 


13

















 


8.10                                                                           Governing Law; Arbitration. 
This Agreement is governed by the laws of the State of Delaware and
applicable federal law without regard to principles of conflicts of law.  Any dispute arising out of the interpretation
or application of this Agreement shall be submitted to binding arbitration,
except for the available remedies described in Articles 5  and 6 of this
Agreement.  The arbitrator’s fees and
expenses shall be shared and paid equally by the parties.  The arbitrator shall be selected and shall
preside pursuant to the then current Employment Arbitration Rules and
Mediation Procedures of the American Arbitration Association (or any successor
organization).  Any arbitration hearing
shall be held at a location in the State of Delaware, the state in which the
Employer is organized, unless otherwise required by law or unless otherwise
mutually agreed upon by the parties.  The
arbitrator shall be bound to apply the laws of the State of Delaware, unless
pre-empted by federal law, to resolve any dispute without regard for any
conflict of law principles, as Employee acknowledges that the Employer is
organized under the laws of the State of Delaware and operates on a national
and international scope.  The arbitrator’s
award will be final and binding.  A
judgment of circuit court or other court of competent jurisdiction may be
rendered on the award.


 


8.11                                                                           No Derogation. 
Nothing herein derogates from any rights the Employee may have under
applicable law except as set forth in this Article 8.11.  The parties agree that the rights,
entitlements, and benefits set out in this Agreement to be paid to the Employee
are in full satisfaction of all rights of the Employee under the laws of the
State of Delaware and the United States of America, and any rights or
entitlements the Employee may otherwise have as a result of the termination of
his employment whether against the Employer or any of Employer’s affiliates.


 


8.12                                                                           Application of Certain Provisions. 
Notwithstanding anything to the contrary, Articles 3.04 (Car Allowance),
3.08 (Tax Consultation), 3.10 (Tax Neutralization) and 4.02(b) (Termination)
shall apply only after such time as either (i) the Employer ceases to be
controlled by the Yucaipa Companies or any funds managed by the Yucaipa
Companies or (ii) the securities of the Employer have been the subject of
a public offering.  Until such time, the
Employer may terminate the employment of the Employee pursuant to Article 4.01(f) on
not less than 60 days prior written notice in which event only Article 4.02(a)
thereof shall apply.


 


[Signature page immediately
follows.]


 


14

















 


IN WITNESS WHEREOF, this
Agreement is executed by the parties hereto as of the day and year first
written above.


 


	
   

  	
  EMPLOYER:

  
	
   

  	
   

  
	
   

  	
   

  	
  AmeriCold
  Logistics, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jozef
  Opdeweegh

  
						



 


15

















 


ATTACHMENT A


 


FORM OF RELEASE OF CLAIMS


 


This
agreement (the “Release Agreement”) is entered
into between AmeriCold Logistics, LLC (the “Company”) and
Jozef Opdeweegh.


 


1.                                       I understand
and acknowledge that I have had sufficient time to review this Release
Agreement and to decide whether to enter into it.  I also understand that I could have at least
twenty-one (21) days to make this decision if I so desired.  I also understand that I have seven (7) days
after I sign this Release Agreement to change my mind and revoke in writing the
Release Agreement.


 


2.                                       I acknowledge
that the Company has advised me in writing that I should consult an attorney
prior to signing this Release Agreement.


 


3.                                       I understand
that by signing this Release Agreement, in addition to releasing any and all
claims against the Company, I am specifically releasing any and all rights and
claims up to the date of my signature which I have for alleged age
discrimination under the Age Discrimination in Employment Act of 1967, as
amended (the “ADEA”), against the Company, its
directors, officers, employees and others released in this Release Agreement.


 


4.                                       I acknowledge
that, following my execution of this Release Agreement if I do not revoke it,
the Company will pay me the amounts described in Article 4.02(b) of the
Amended and Restated Employment Agreement between me and the Company effective
as of
                      ,
2010 (the “Employment Agreement”), subject to the
terms and conditions of the Employment Agreement.  These payments (excluding any benefits to
which I am entitled by law pursuant to COBRA) are in consideration of the
execution of this Release Agreement and the performance of the terms and conditions
contained herein.  I acknowledge that I
have no entitlement to such payments (excluding any benefits to which I am
entitled by law pursuant to COBRA) except as compensation for the performance
of the terms and conditions set forth herein. 
I acknowledge that I am entitled to no salary, wages, commissions,
options, benefits, insurance or other compensation from the Company, or its
parent or subsidiary corporations, except as specifically set forth herein and
in Article 4.02 of the Employment Agreement.


 


5.                                       Scope of
Release.


 


a.               Release. To the
broadest extent permitted by law, I hereby release and discharge the Company
and its parent, affiliates, and subsidiary corporations, officers, servants,
employees, attorneys, insurers, successors and assigns from any and all claims,
demands, obligations, liabilities, actions, costs, debts and causes of action
of every nature, known or unknown, which have existed or now exist (including,
to the extent permitted by law, claims and causes of action which I do not know
of or


 


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suspect exist in my favor), including but not limited to: (a) all
claims arising out of or in any way related to my employment with the Company
or the termination of that employment; (b) all claims related to my
compensation or benefits from the Company, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance pay, payments
under any retirement plan or other compensation plan or arrangement maintained
by the Company, fringe benefits, stock, stock options or any other ownership
interest in the Company; (c) all claims for breach of contract, wrongful
termination, breach of the implied covenant of good faith and fair dealing, and
any other common law cause of action arising in contract; (d) all tort
claims, including claims for fraud, defamation, emotional distress, discharge
in violation of public policy, and any other common law tort; and (e) all
federal, state and local statutory claims, including but not limited to claims
for discrimination, harassment, retaliation, attorneys’ fees or other claims
arising under the ADEA, the federal Civil Rights Act of 1964 (as amended), the
Americans with Disabilities Act, the Older Workers Benefit Protection Act (as
amended) (“OWBPA”), and the Family and Medical
Leave Act.


 


b.              ADEA Waiver.  I acknowledge that with this document I have
been advised in writing to consult with an attorney prior to executing this
waiver of ADEA claims and that I have been given twenty-one (21) days from the
date of this Release Agreement in which to consider entering into the waiver of
the ADEA claims, if any.  If I decide to
sign before the expiration of twenty-one (21) days, I acknowledge that I am
doing so knowingly and voluntarily.  In
addition, I acknowledge that with this Release Agreement I have been informed
that I may revoke a signed waiver of the ADEA claims for up to seven (7) days
after executing this Release Agreement. 
I understand that, to be effective, my revocation must be in writing, signed,
dated and delivered to Human Resources at the Company no later than seven (7) days
from the date on which I sign this Release Agreement.  If the seventh (7th) day falls on a weekend or holiday, I understand my
revocation must be delivered the next business day.  Finally, I understand that this Release
Agreement will be effective as of the date following the rescission period,
unless I exercise my right to rescind during the rescission period.


 


c.               Excluded Claims.  Notwithstanding the above, with this Release
Agreement, the Company acknowledges that I do not release any of the following
rights or claims: (a) any rights or claims for indemnification I may have
pursuant to any written indemnification agreement with the Company to which I
am a party, pursuant to the charter, bylaws or operating agreements of the
Company, or under applicable law; (b) any rights which cannot be waived as
a matter of law; and (c) any claims arising from the breach of this
Release Agreement.  In addition, the
Company further acknowledges that nothing in this Release Agreement prevents me
from filing, cooperating with or participating in any 


 


ii

















 


proceeding before the Equal Employment Opportunity Commission, the
Department of Labor or the state equivalents thereto, except that I hereby
waive my right to any monetary benefits in connection with any such claim,
charge or proceeding.


 


6.                                       By executing
this Release Agreement, I acknowledge that I have read the document and have
had the opportunity to receive independent legal advice with respect to
executing this Release Agreement and that I expressly waive the rights and
benefits I otherwise might have under Delaware statute or common law
doctrine.  In other words, there may be
additional facts or claims which I do not know about on the date I sign this
Release Agreement.  By signing this
Release Agreement, I understand and agree that I am giving up my right to bring
any known or unknown claim against the Company.


 


7.                                       I acknowledge
that the purpose of this Release Agreement is to resolve all potential disputes
between me and the Company.  To the
extent that any alleged claim is not or cannot be released under current law,
the payments provided by the Company in this Release Agreement shall be an
offset against any such unreleased claim, if any, provided, however, that such
offset shall be permitted only to the extent that the Company determines in
good faith that such offset would not cause a violation of Section 409A of
the Internal Revenue Code of 1986, as amended, and to the extent otherwise
permitted by applicable law.


 


8.                                       I understand
that neither this Release Agreement nor anything in it shall be considered as
any admission by the Company of any preexisting obligation or improper conduct
whatsoever.  I understand that the
Company denies any such obligations or improper conduct.


 


9.                                       I have read
this Release Agreement and understand its contents.  I am signing this Release Agreement
voluntarily.


 


10.                                 I acknowledge
that the making, execution and delivery of this Release Agreement has been
induced by no promises, representations, statements, warranties or agreements
other than those expressed herein.  I
understand it supersedes all prior discussion and agreements between me and the
Company, whether oral or in writing.


 


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
  Jozef Opdeweegh

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  AmeriCold Logistics, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
							



 


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