Exhibit
10.18


 


EMPLOYMENT
AGREEMENT


 


THIS 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 Susan C. Haley (hereinafter referred to as
the “Employee”).


 


WHEREAS, the Employer and Employee are desirous of entering
into an employment relationship for their mutual benefit;


 


AND WHEREAS, the Employer and the Employee have agreed that the
terms and conditions of the employment relationship shall be as set out herein;


 


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 Vice President for Human
Resources 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 Vice President for Human Resources, the Employee will report to the
Employer’s Chief Executive Officer.  The
duties and responsibilities of the Employee shall consist of those deemed by
the Employer 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 Employer or the Board.


 


1.03                                                                           Full and Faithful Service. 
The Employee will devote to the business and affairs of the Employer all
of her working time, attention and ability to carry out the duties of her
position, to the exclusion of any other employment or gainful occupation, and
will ensure that she 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 she
will, in the performance of her 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.  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 her duties
requires the highest level of integrity and the Employer’s


 


Employment Agreement for
S. Haley


 


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complete confidence in the Employee’s relationship
with other employees of the Employer and with all persons dealt with in the
course of her employment.  The Employee
shall diligently, faithfully and honestly serve the Employer during the term of
her employment hereunder and shall use her 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


 


3.01                                                                           Base Salary. 
As remuneration for her services hereunder, the Employee shall be paid a
base salary at the rate of TWO HUNDRED FIFTY THOUSAND DOLLARS (USD $250,000.00)
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 by the
Employer from time to time at the discretion of the Board of Trustees of
Americold Realty Trust (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 but
said Base Salary will not be reduced.


 


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 she 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 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 her 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-


 


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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 $1,200 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 as described in the Employer’s short
term management incentive plan as in effect from time to time. The Entitlement  will have a target amount of zero
percent (0%) of the Employee’s Base Salary at 95% of Target; a target amount of
sixty percent (60%) of the Employee’s annual Base Salary upon achievement of
the Target; and a maximum amount of ninety percent (90%) 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 her duties
hereunder, subject to and consistent with applicable policies of the
Employer.  Without limiting the
foregoing, as a condition to the reimbursement of such expenses, the Employee
shall furnish to the Employer receipts for expenses incurred.


 


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3.07                                                                           Participation in Long Term Incentive Plan. 
The Employee shall be eligible to participate in the 2010 Long Term
Incentive Plan established by the Board and in respect thereto she will receive
a grant consisting of stock options and restricted stock units in accordance
with that separate Stock Option Agreement and Restricted Stock Unit Agreement
executed by Employee and Employer. 
Additionally, Employee shall remain eligible to participate in any other
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.  These benefits are
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 $3,000.00 (US Dollars)
annually for expenses associated with a professional tax consultant for the
purposes of long term financial planning, in accordance with Employer’s written
reimbursement policy as then in effect.


 


3.09                                                                           Relocation.


 


(a)                                  Commensurate with her position as an
Executive Vice President, the Employee shall devote a significant amount of
time to performing services at the Employer’s headquarters.


 


(b)                                 In the event the Employee is subsequently
required by Employer to relocate to any other location outside of Portland,
Oregon, such relocation (unless agreed to in writing by Employee) shall
constitute a termination without case for purposes of Section 4.1(f) below.  Should Employee agree to such relocation
outside of Portland, Oregon, relocation assistance will be provided to the
Employee that will cover all reasonable expenses associated with such
relocation.  Employer shall pay to
Employee, on a pretax basis (so there is no net tax cost to Employee), in
advance where possible (and otherwise via prompt reimbursement), the sum of the
following amounts: temporary employee living expenses, including apartment
and/or other comparable costs prior to the Employee obtaining a new residence;
closing costs on any new home Employee purchases in the area to which the
Employee is required to relocate as a personal residence for himself; and costs
of packing, shipping, insuring, delivering, and unpacking Employee’s household
goods as well as storage costs for household goods until a residence is
obtained.  In addition, if Employee has
not sold his residence within 6 months after the Employee is required to
relocate, Employer shall purchase such residence for cash upon Employee’s
written election given to Employer no later than 30 days following the lapse of
such 6 month period.  The purchase price
shall be equal to the average of two independent appraisals (with one appraiser
selected by each party) of the Employee’s residence.  All costs associated with the selling of the
Employee’s residence (including both appraisals, if necessary) shall be borne
by Employer.  Employer shall arrange for
the appraisals to be completed within 30 days after receipt of the Employee’s 


 


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written election
for the purchase of the Employee’s residence pursuant to this Article 3.09.  Closing shall occur within 30 days after such
appraisals have been received.


 


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 her actual aggregate
net income tax liability (“Actual Tax Effects”)
to exceed the Targeted Tax Effects, then Employee shall notify Employer as to
why she so believes this and her 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 she 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 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. 
This Agreement and the employment contemplated hereunder are terminable
at will by either the Employee or the Employer at any time, 


 


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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 her normal duties; (v) failure by Employee to perform her
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;


 


(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; provided that Employer’s required relocation of Employee outside of
Portland, Oregon 


 


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shall also
constitute a termination without Cause unless Employee has agreed to the
relocation in writing.


 


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) continued payments of Base Salary 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 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.


 


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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 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 


 


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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.


 


(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 


 


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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 her
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 she 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.


 


5.04                                                                           Protection of Inventions. 
With respect to Inventions, Employee agrees and covenants as follows:


 


(a)                                  During Employee’s employment with the
Employer and for a period of twenty-four (24) months thereafter, Employee shall
promptly report and disclose to the Employer in writing, in sufficient detail
as requested by the Employer, all Inventions;


 


(b)                                 Employee acknowledges and agrees that all
Inventions are the sole and exclusive property of the Employer;


 


(c)                                  Employee agrees to assign, and hereby
automatically assigns, without further consideration, to the Employer any and
all right, title and interest in and to all Inventions; provided, however, that
this Agreement shall not apply to any Invention: (i) for which no property
of the Employer was 


 


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used; (ii) which
was developed entirely on Employee’s own time; and (iii) which does not in
any way relate to the Employer’s Business or its actual or demonstrable
anticipated research or development;


 


(d)                                 The Employer and its successors and
assigns shall have the right to obtain and hold in its or their own name all
copyright registrations, trademark registrations, patents and any other
protection available to the Inventions;


 


(e)                                  Employee acknowledges and agrees to
perform, upon reasonable request of the Employer, both during and after
employment, all further acts as may be necessary or desirable to transfer,
perfect or defend the Employer’s ownership of Inventions, including, but not
limited to: (i) executing, acknowledging and delivering any requested
affidavits and documents of assignment and conveyance; (ii) assisting in
the preparation, prosecution, procurement, maintenance and enforcement of all
copyrights and/or patents with respect to Inventions; (iii) providing
testimony in connection with any proceeding affecting the right, title or
interest of the Employer in any Invention; and (iv) performing any other
act deemed necessary or desirable to carry out the purpose of this covenant;
and


 


(f)                                    Employee represents and warrants to the
Employer that Employee has not conceived any Invention or acquired any
ownership interest in any Invention except as disclosed in writing to
Employer.  If an Invention is not so disclosed
in writing to Employer, any Invention conceived by Employee or in which
Employee obtains an interest during her employment will conclusively be
presumed to be an Employer Invention.  If
Employee incorporates an Invention so disclosed in writing into the Employer’s
business, either with or without the Employer’s prior written consent, Employee
hereby grants to the Employer a non-exclusive, paid-up, royalty-free,
irrevocable, worldwide license (with rights to sublicense through multiple
tiers of sub-licensees) to make, have made, modify, use, sell, copy and create
derivative works of such Invention.


 


5.05                                                                           Protection of Patents. 
With respect to patents, Employee acknowledges and agrees that should
the Employer or any affiliate of the Employer elect to file an application for
patent protection, either in the United States or in any foreign country, on an
Employer Invention with which Employee was involved, Employee, both during and
after employment, will execute all necessary documents, including formal
assignments to the Employer or any affiliate of the Employer relating to such
patent applications.  Employee further
agrees to cooperate with any attorneys or other persons designated by the
Employer or any of its affiliates as may reasonably be required for the timely
prosecution of such patent applications. 
The Employer shall be responsible for all expenses incurred in the
preparation and prosecution of all patent applications filed on its or their
behalf.  Employee moreover represents and
warrants to the Employer that Employee holds or owns no patents, either
individually or jointly with others, except as disclosed to Employer in
writing.


 


11














 


ARTICLE 6 — NON-COMPETITION/NON-SOLICITATION


 


6.01                                                                           Non-Solicitation of Customers. 
Employee covenants and agrees that, during the term of Employee’s
employment with the Employer and for a period of twelve (12) months following
the termination of such employment, regardless of the reason for such
termination, the Employee will not, either directly or indirectly, in
competition with Employer’s Business, solicit, initiate contact with, entice,
or recruit for a Competing Business, attempt to solicit, initiate contact with,
entice or recruit for a Competing Business, or attempt to divert or appropriate
to a Competing Business, any actual or prospective customer of the Employer
with whom Employee had contact on behalf of the Employer.


 


6.02                                                                           Non-Solicitation of Suppliers. 
Employee covenants and agrees that, during the term of Employee’s
employment with the Employer and for a period of twelve (12) months following
the termination of such employment, regardless of the reason for such
termination, the Employee will not, either directly or indirectly, in
competition with the Employer’s Business, solicit, initiate contact with,
entice, or recruit for a Competing Business, attempt to solicit, initiate
contact with, entice or recruit for a Competing Business, or attempt to divert
or appropriate to a Competing Business, any actual or prospective supplier of
the Employer with whom Employee had contact on behalf of the Employer.


 


6.03                                                                           Non-Solicitation of Employees. 
Employee covenants and agrees that, during the term of Employee’s
employment with the Employer and for a period of twelve (12) months following
the termination of such employment, regardless of the reason for such
termination, the Employee will not, either directly or indirectly, hire or
attempt to hire, solicit or attempt to solicit, or induce or attempt to induce,
any employee of the Employer to leave her employment with Employer.


 


6.04                                                                           Non-Competition. 
Employee covenants and agrees that, during the term of Employee’s
employment with the Employer and for a period of twelve (12) months following
the termination of such employment, regardless of the reason for such
termination, Employee shall not, within the Territory and on behalf of a
Competing Business, either directly or indirectly (whether through affiliates,
subsidiaries or otherwise), perform any duties that are the same or similar to
those that she performed for the Employer.


 


6.05                                                                           Reasonableness. 
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).


 


6.06                                                                           Severability and Reformation. 
The parties to this Agreement further agree that if any limitation or
provision contained in these covenants is determined to be void or
unenforceable, whether in whole or in part, it shall not be deemed to affect or
impair 


 


12

















 


the validity of any other covenant or provision
hereof.  Moreover, the parties agree that
the arbitration tribunal may reasonably alter the language within any of the
covenants set forth in Articles 5 and 6 herein so as to give maximum effect to
the covenants as initially written. Furthermore, to the maximum extent allowed
under the law of the State of Delaware and other applicable law, the parties
agree that the post-employment covenant periods in Articles 5 and 6 shall toll
during any breach so that the covenant period begins to run from the date of
the tribunal’s opinion instead of from the date of termination of Employee’s
employment.


 


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 to injunctive relief, in addition and without prejudice to any other
remedy that Employer may have at law.


 


7.02                                                                           Mandatory and Binding Arbitration. 
Any dispute that in any way relates to this Agreement, including,
without limitation, any request for injunctive or declaratory relief sought by
any of the parties to this Agreement (whether pursuant to Articles 5 or 6, or
otherwise), shall be submitted to mandatory and binding arbitration before the
American Arbitration Association (“AAA”), in
accordance with the then current Employment Arbitration Rules and
Mediation Procedures established by the AAA (or any successor organization), at
the AAA’s regional office for the State of Delaware, the state in which the
Employer is organized, unless otherwise required by law.  The arbitrator shall be selected by
permitting the Employer and Employee to strike one name each from a panel of
three names obtained from the AAA from its panel of Employment Dispute
Arbitrators.  The person whose name is
remaining shall be the arbitrator.  The
arbitrator shall determine the extent of discovery, if any, that is needed to
resolve the dispute after hearing the positions of each party regarding the
need for discovery.  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 shall be required to afford
the parties the opportunity to file dispositive motions, including, without
limitation, summary judgment motions and consider those motions in accordance
with the laws of the State of Delaware (or in accordance with federal law, if
Delaware law is pre-empted by federal law). 
The arbitrator also shall be required to issue a reasoned opinion.


 


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 


 


13

















 


made a part hereof. 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.


 


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 Executive Chairman 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 her 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 


 


14

















 


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
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 


 


15

















 


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.


 


8.10                                                                           Governing Law. This Agreement is governed
by the laws of the State of Delaware and applicable federal law without regard
to principles of conflicts of law.


 


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:


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Susan C. Haley

  	
   

  



 


16

















 


ATTACHMENT
A


 


FORM OF
RELEASE OF CLAIMS


 


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


 


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 suspect exist in my
favor), including but not limited to: (a) all claims 


 


i

















 


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 proceeding before the Equal Employment Opportunity
Commission, the 


 


ii

















 


Department of
Labor or the state equivalent 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:

  	
   

  	
   

  	
   

  
	
   

  	
  Susan C. Haley

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  AmeriCold Logistics, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


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