Exhibit 10.17
RELEASE AND WAIVER OF EMPLOYMENT AND
SEPARATION FROM EMPLOYMENT CLAIMS
This Release and Waiver of Employment and Separation From Employment
Claims (hereinafter the "Release") is made and entered into this ___ day of
_________, 2003 by and between XXXXX X. XXXXX (hereinafter "Employee"), in favor
of AMERICAN COMMERCIAL LINES LLC, a Delaware limited liability company with a
business address of 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxxxxxxx, Xxxxxxx 00000, as
debtor and debtor in possession, and all of its parent, related, affiliated and
subsidiary companies, and all their predecessors, successors, employees,
officers, directors, board of managers, members, interest holders,
representatives, assigns, agents, insurers and employee benefit programs, and
the trustees, administrators, fiduciaries and insurers of such employee benefit
programs (collectively, the "Company").
RECITALS
(1) The Company and Employee have agreed that Employee's employment
will end on May 30, 2003, and that he will be paid through such time.
(2) The Company has offered to provide certain severance benefits,
as detailed below, to the Employee in exchange for Employee's execution of this
Release.
(3) Employee desires to waive certain claims or potential claims
Employee may have or could claim to have against the Company in order to receive
these benefits.
(4) Employee and Company wish to enter into a consulting
arrangement for certain services of Employee as outlined below.
(5) Employee and Company wish to resolve all outstanding matters
between them in a mutually acceptable way, including but not limited to the
termination of Employee's Employment Agreement with Company and Employee's
separation from employment with Company.
NOW THEREFORE, in exchange for the good and valuable consideration
provided herein, the receipt and sufficiency of which is hereby acknowledged,
Employee and Company hereby agree as follows:
(1) CONCLUSION OF EMPLOYMENT
(a) Employee's active engagement as an employee of the Company will
end on May 30, 2003 (hereinafter the "Separation Date"). Employee promises that
on or before the Separation Date, he will return all files, records, credit
cards, keys, identification, computers, computer records, cell phones, pagers,
or other Company property which is in the Employee's possession or control,
except for such items as Employee may be instructed to retain until the
conclusion of the Consulting Period as defined below. In the event that Employee
retains or receives Company property during
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the Consulting Period, Employee covenants to return all such property on or
before the conclusion of the Consulting Period.
(b) Employee agrees and acknowledges that he will not:
(i) disparage the Company in any manner.
(ii) disclose any confidential information, proprietary
information, trade secrets, or other information which
is not disseminated publicly (hereinafter collectively
"Confidential Information") which Employee learned
while employed by the Company.
(iii) solicit or help anyone solicit any employees of the
Company to cease employment with the Company.
(iv) solicit or help anyone to solicit any customers or
vendors of the Company to cease dealing with the
Company.
(v) for two (2) years following the Separation Date, accept
employment with or otherwise work or act for or on
behalf of any person or entity engaged in the
transportation of cargo by barge on the Inland Waterway
System of the United States in competition with
American Commercial Barge Line LLC; provided, however,
that nothing in this paragraph shall prohibit Employee
from acquiring an interest in or control of Global
Materials Services LLC or any of its subsidiaries.
(c) Employee agrees that he will make himself available for
consultation and will provide reasonable assistance to the Company during the
six months following the Separation Date (the "Consulting Period") in order to
ensure a smooth and orderly transition of Employee's duties and the continuance
of Company's operations without interruption or delay. Such consultation
services and reasonable assistance shall not exceed ten (10) hours per week.
(2) PAYMENTS TO EMPLOYEE
(a) Company agrees to pay Employee a lump sum Severance and
Consulting Pay Benefit of one hundred seventy thousand dollars ($170,000) and to
provide a benefits detailed below (collectively referred to as "Separation
Pay"). Separation pay shall be made only when the Release has become irrevocable
as explained below. Employee understands and acknowledges that by entering into
this Agreement, Employee forfeits his rights, if any, to any other severance
benefit under Company's normal programs or Employee's employment agreement.
(b) Payment of Separation Pay shall not commence until the
Company's first normal pay cycle following the expiration of the applicable
revocation period without a
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revocation occurring and fulfillment of the contingency of bankruptcy court
approval as set forth below. Nothing in this Release shall affect Employee's
right to or the timing of Company's payment of any earned or accrued vacation
pay.
(c) Employee understands and acknowledges that the Company will
deduct from the Separation Pay all applicable payroll and withholding taxes,
including but not limited to Social Security taxes, and all federal, state and
applicable municipal taxes, and other deductions that the Company is required by
law or has been authorized by Employee to deduct from wage payments.
(d) During the Consulting Period, Employee shall be available on an
as-needed basis to provide information to assist company with its transition to
a new Chief Financial Officer. During the Consulting Period, Employee shall be
considered an Independent Contractor and agrees to execute the Company's
standard Independent Contractor Agreement prior to the start of the Consulting
Period.
(3) BENEFITS
(a) Employee may elect to continue to participate in the Company's
group medical, dental and vision insurance plans for up to eighteen months,
pursuant to his right to continued coverage required by federal law under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") and will receive an
appropriate COBRA notice setting forth Employee's rights and obligations..
During this period, if Employee becomes eligible to receive medical or dental
benefits from any benefit plan (a "Primary Coverage Plan") maintained by any
other person, then the benefits offered by the Company's plans shall become
secondary to the benefits offered under the Primary Coverage Plan. Nothing in
this paragraph shall alter the Company's reserved right to change or discontinue
any benefit plan at any time.
(4) COMPLETE RELEASE
(a) In consideration of the payments and benefits received
hereunder, Employee agrees to release and waive all claims he may have against
the Company. Employee's release includes all claims that are related to (i)
Employee's employment with the Company; (ii) the voluntary or involuntary
separation from that employment; (iii) the design or administration of any
employee benefit program; (iv) any rights Employee has to severance or similar
benefits under any program, policy or procedure of the Company other than the
payments recited in Section 2 or 3 of this Release; (v) any rights Employee may
have to the continued receipt of benefits, other than as recited in Sections 2
and 3 of this Release; and (vi) any other claims or demands Employee may have
which arise under any contract or law or on any other basis, including, but not
limited to, claims or demands under any severance plan or Employee's Employment
Agreement, or any other agreement. This release does not give up Employee's
rights to continued health insurance under COBRA as set forth above.
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(b) Employee also releases any rights or claims he may have under
the Americans with Disabilities Act, which prohibits employers from
discriminating against any qualified individual with a disability; Age
Discrimination in Employment Act, which prohibits age discrimination in
employment; Title VII of the Civil Rights Act of 1964, which prohibits
discrimination in employment based on race, color, national origin, religion or
sex; the Equal Pay Act, which prohibits paying men and women unequal pay for
equal work; Older Workers' Benefit Protection Act, which prohibits
discrimination in employee benefits; state laws, which prohibit discrimination
in employment based on, inter alia, race, color, religion, age, national origin,
handicap, sex, or ancestry; any other federal, state or local laws or
regulations prohibiting employment discrimination, restricting an employer's
right to terminate employees, or otherwise regulating employment; any claims for
wrongful discharge and all claims for alleged physical or personal injury, or
emotional distress; any claims under the Worker Adjustment and Retraining Act or
any similar law, which requires, among other things, that advance notice be
given of certain work force reductions; and all claims under the Employee
Retirement Income Security Act, such as claims relating to pension or health
plan benefits. This release covers both claims that Employee knows about and
those he may not know about. Employee expressly waives all rights affordwolffed
him by any statute that limits the effect of a release with respect to unknown
claims to the maximum extent such statutes permit such waiver. This release and
waiver by the Employee is on behalf of the Employee and his spouse (if any) and
child or children (if any), heirs, beneficiaries, devisees, executors,
administrators, attorneys, personal representatives, successors and assigns.
(5) NON-ADMISSION OF LIABILITY
Employee understands and agrees that the Company's willingness to make
payments and pay benefits to him under the Release is not an admission of
liability, or obligation to provide such consideration in the absence of
Employee signing this Release.
(6) RELEASE OF AGE DISCRIMINATION CLAIMS; PERIODS FOR REVIEW AND
RECONSIDERATION
(a) Release of Age Discrimination Claims. Employee understands and
agrees that this document includes a release of claims arising under the Age
Discrimination in Employment Act or comparable state law including but not
limited to all claims relating to Employee's separation from employment with
Company. Employee understands and acknowledges that he has been given a period
of twenty-one (21) days to review and consider this Release. Employee further
understands and acknowledges that he may use as much or all of this 21 day
period as Employee wishes before signing, and that Employee has done so.
(i) Employee again understands and acknowledges that Employee is
receiving the Separation Pay from the Company, in part, in
exchange for the release of age discrimination claims
potentially arising under the Age Discrimination in Employment
Act or comparable state law. Employee
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further understands and acknowledges that the part of the
Separation Pay given to Employee by the Company in exchange for
the release of age discrimination claims potentially arising
under the Age Discrimination in Employment Act or comparable
state law is more than the Company is required to pay under its
normal policies and procedures.
(b) Encouragement to Consult with Attorney. Employee understands
and acknowledges that he is hereby advised to consult with an attorney prior to
executing the Release. By signing below, Employee warrants that he has had the
opportunity to consult with an attorney prior to any execution of this Release,
and to be fully and fairly advised by that legal counsel as to the terms of the
Release.
(c) Periods for Review and Reconsideration. Employee understands
that he has seven (7) days after signing this Release to revoke it by notice in
writing delivered to AMERICAN COMMERCIAL LINES LLC; ATTN: Xxxx X. Xxxxxxx -
Revocation of Severance Release; 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx
00000-0000. This Release shall be binding, effective, and enforceable upon the
expiration of this seven-day revocation period without such revocation being
received, but not before such time. Employee understands and agrees that the
Separation Pay will not be paid prior to the expiration of this seven-day
revocation period. In the event Employee revokes this Agreement during the
revocation period, Company reserves the right to suspend the continuation of any
wage or benefit as provided in Section 2 or 3 of this Release. Should Company do
so, Employee will receive a COBRA Notice setting forth the effect of such
cessation on Employee's right to continued health care coverage.
(7) NO FUTURE LAWSUITS
By signing this Release, Employee promises never to file or pursue a
claim, lawsuit or any other complaint or charge asserting any of the claims,
lawsuits, complaints or charges that are released in this Release.
(8) NON-RELEASE OF FUTURE CLAIMS
This Release does not waive or release any rights or claims that
Employee may have under the Age Discrimination in Employment Act which may arise
after the later of the date Employee signs this Release, the Separation Date, or
the expiration of the Consulting Period.
(9) REPAYMENT OF BENEFITS BASED ON SUBSEQUENT ASSERTION OF CLAIM;
INDEMNIFICATION FOR COSTS INCURRED BY COMPANY; NO LIMITATION ON
COVENANT NOT TO XXX
(a) Repayment of Benefits Based on Subsequent Assertion of Claim.
Employee understands and agrees that Employee may not pursue any claim, lawsuit,
or other charge or complaint released by the literal terms of this Release.
Employee further
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understands and agrees that if Employee should breach this covenant not to xxx,
and if a Court should, for any reason, find Employee's release of claims, as set
forth in this Release, void, voidable, imperfect, or incomplete in any respect,
Employee may be liable for the repayment of some or all of the Separation Pay
including but not limited to the value of any other benefits Employee received
pursuant to the terms of this Release. Statutes of limitations will run on all
claims without regard to Employee's execution of this Release. In addition, if
Employee breaches his covenant not to xxx, as set forth in Section 7, Employee
shall forfeit all right to future benefits, if any.
(b) Indemnification for Costs Incurred by Company. Employee
acknowledges and agrees that if Employee breaks his covenant not to xxx or
promise not to assert claims against the Company in the future, by filing a
claim, lawsuit or other complaint against the Company or any other entity
released under the terms of this Release, and a Court finds Employee's actions
to be in breach of the terms of this Release, the Employee will pay the
Company's costs and reasonable attorneys' fees in defending such claim, lawsuit,
or other complaint.
(c) No Limitation on Covenant Not to Xxx. Nothing in this Section
shall be construed to limit Employee's covenant not to xxx or promise not to
assert claims, as set forth above.
(10) GOVERNING LAW
This Agreement shall be governed and construed in all respects in
accordance with the laws of the State of Indiana without regard to the conflict
of laws rules contained therein. Any litigation arising from the employment
relationship or any termination of employment, shall be brought in state or
federal Court sitting in Xxxxx County or Xxxxx County, Indiana respectively.
(11) SEVERABILITY AND CONSEQUENCES OF INVALID TERMS
Except as otherwise specified herein, if any portion of this Release is
found void or unenforceable for any reason by any Court, the Court should
enforce all portions of this Release to the maximum extent which would have been
enforceable in the original Release. If such portion cannot be modified to be
enforceable, the unenforceable portion will be severed from the remaining
portions of this Release, which shall otherwise remain in full force and effect
(12) RELEASE OF EMPLOYEE
The Company shall use its best efforts to cause Employee to be released
in connection with the consummation of the Company's Chapter 11 plan of
reorganization to the same extent, if any, that current officers in good
standing are released in such Chapter 11 plan of reorganization. Employee
acknowledges that neither the form nor timing of such releases has been
determined and that the Company's ability to grant such releases is subject to
bankruptcy court approval. Employee further acknowledges that
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any such release shall not limit or otherwise impair or affect any liability of
Employee for any breach of the representations and warranties set forth in this
Agreement.
(13) COOPERATION
In addition to providing consulting services as described herein,
following the Separation Date, Employee agrees to cooperate with the Company
upon reasonable request of the board of Directors of the Company (the "Board")
or its designee, and to be reasonably available to the Company with respect to
matters arising out of Employee's services to the Company. To the extent
permitted by law, Employee agrees (i) not to voluntarily assist or otherwise
cooperate voluntarily with any non-government person or entity in any claim
against the Company and (ii) to notify the Company in writing immediately upon
learning that he is to be or is likely to be compelled to provide testimony,
documents or any form of assistance in any claim against the Company.
Notwithstanding any other provision of this Section, Employee shall give
truthful testimony in any investigations, proceedings or legal actions relating
to the Company.
(14) EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
Employee represents and warrants to the Company that:
(a) He has not, with respect to any transaction or state of facts
existing prior to the Separation Date, filed any claims, complaints, charges or
lawsuits against Company with any governmental agency, court or tribunal.
(b) He has disclosed all necessary information to the Board in
connection with the satisfaction of his duties owed to the Company.
(c) He is not aware of (i) any material claims that could be
brought by the Company or any of its subsidiaries or affiliates against any
person or entity (including, without limitation, himself), (ii) any material
claims that could be brought by any person or entity (including, without
limitation, himself) against the Company; or (iii) any information that could
give rise to such claim(s), that have not been disclosed to the Board or a
committee of the Board.
(d) His execution, delivery and performance of this Agreement does
not and shall not conflict with, or result in the breach of or a violation of,
any other agreement, instrument, order, judgment or decree to which he is a
party or by which he is bound.
The representations and warranties set forth in this Section shall
survive any release of Employee in connection with the consummation of the
Company's Chapter 11 plan of reorganization and shall remain in full force and
effect until the expiration of any applicable limitations period.
(15) ENTIRE AGREEMENT
This Release contains the entire agreement between Company and Employee
pertaining to the subject matter hereof and supersedes all prior and
contemporaneous oral
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and written agreements and understandings in connection therewith, including but
not limited to any Employment Agreement or Stock Agreement. There are no oral or
written promises affecting this Release.
(16) COURT APPROVAL CONTINGENCY
The Company and Employee acknowledge and agree that this Agreement is
being entered into between Employee and the Company as a debtor and debtor in
possession as the result of the Company's filing a voluntary petition for relief
under Chapter 11 of the Bankruptcy Code on or about January 31, 2003, in the
United States Bankruptcy Court for the Southern District of Indiana (the
"Bankruptcy Court") under case number 03-90305 9 (BHL) (jointly administered).
The parties further agree as follows:
(a) This Agreement and all of Company's obligations hereunder are
subject to the approval of the Bankruptcy Court after notice and a hearing, and
if the Bankruptcy court does not approve this Agreement, this Agreement shall be
void in its entirety, and no party shall have any rights or obligations
hereunder;
(b) The Company shall, within 15 days, submit a motion (the
"Motion") to the Bankruptcy Court seeking approval of this Agreement. The Motion
shall specifically request that the payment to Employee of Separation Pay be
Allowed (as that term is used in the Bankruptcy Code) as an administrative
expense against the Company pursuant to 11 U.S.C. Section 503(b). The Motion
shall be noticed pursuant to the provisions of 11 U.S.C. Section 365 and
Bankruptcy Rule 9019; and
(c) The Motion seeking approval of this Agreement and the proposed
order approving this Agreement shall be in a form and in substance reasonably
approved by Employee or his counsel, if any.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF KNOWN
AND UNKNOWN CLAIMS.
BY SIGNING BELOW, I ACKNOWLEDGE THAT I HAVE READ THIS RELEASE, THAT I
UNDERSTAND IT; AND THAT I AM ENTERING INTO IT VOLUNTARILY.
IN WITNESS WHEREOF, and intending to be legally bound, Employee has
executed this Release after a due reading of the whole.
WITNESS XXXXX X. XXXXX (THE "EMPLOYEE")
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Dated:
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Checks and subsequent correspondence should be sent to (fill in address):
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Please note that checks and subsequent correspondence may be sent via certified
mail, return receipt requested.
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