EXHIBIT 10.1
EXECUTIVE UNIT PURCHASE AND EMPLOYMENT AGREEMENT
BETWEEN AMERICAN COMMERCIAL LINES HOLDINGS LLC,
CSX XXXXX CORPORATION, 399 VENTURE PARTNERS, INC. AND XXXXX XXXXXXXX III
EXECUTIVE UNIT PURCHASE AGREEMENT (this "AGREEMENT"), dated as
of June 25, 1999, by and among American Commercial Lines Holdings LLC, a
Delaware limited liability company (the "COMPANY"), CSX Xxxxx Corp., a Delaware
corporation ("CSX"), 399 Venture Partners, Inc., a Delaware corporation ("399
VENTURE"), and Xxxxx Xxxxxxxx III (the "EXECUTIVE").
The parties hereto desire to enter into an agreement that will
provide for (i) the acquisition by the Executive of 11,618.08 Junior Preferred
Units, in the aggregate, and 421.04 Class B Common Units, in the aggregate, and
(ii) the employment of the Executive by the Company, each upon the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. As used herein, the following terms shall
have the following meanings.
"ACT" means the Delaware Limited Liability Company Act,
Delaware Code, Title 6, Sections 18-101, ET. SEQ., as in effect from time to
time.
"AFFILIATE" means, as to any Person, any other Person directly
or indirectly, through one or more intermediaries, controlling, controlled by,
or under common control with such Person; PROVIDED, the term "control," as used
in this definition, shall mean with respect to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of the controlled entity (whether through ownership of
voting securities, by contract or otherwise).
"BOARD" means the Company's Board of Representatives.
"BUSINESS DAY" means any day other than a Saturday or Sunday
or a day on which commercial banks are required or authorized to close in New
York, New York.
"CAUSE" means (i) the commission of a felony or a crime by
Executive involving moral turpitude or the commission of any other act or
omission by Executive involving dishonesty, disloyalty or fraud with respect to
any member of the Company Group, (ii) conduct by Executive which brings any
member of the Company Group into substantial public disgrace or disrepute, (iii)
substantial and repeated failure by Executive to perform material duties as
reasonably directed by the Board, (iv) gross negligence or willful misconduct by
Executive with respect to any member of the Company Group, or (v) any
substantial breach of a material provision of this Agreement by Executive that
is not susceptible to remedy or cure; PROVIDED, that the Executive may not be
terminated for Cause unless there shall have been resolutions duly adopted by
the affirmative vote of not less than three-quarters of the entire Board finding
that, in the good faith opinion of the Board, the Executive had engaged in
conduct described above in clause (i), (ii), (iii), (iv), or (v) above.
"CLASS B COMMON UNIT" has the meaning assigned to such term in
the LLC Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY GROUP" means, collectively, the Company, American
Commercial Lines LLC, a Delaware limited liability company, their respective
Subsidiaries, and any successors thereto.
"EXECUTIVE UNITS" means all Junior Preferred Units and Class B
Common Units acquired by the Executive hereunder and all Junior Preferred Units
and Class B Common Units hereafter acquired by the Executive. Executive Units
will continue to be Executive Units in the hands of any holder other than the
Executive (including, without limitation, any Permitted Transferee of the
Executive), except for the Company, 399 Venture or any Transferee in an
underwritten public offering registered under the Securities Act, and except as
otherwise provided herein, each such other holder of Executive Units will
succeed to all rights and obligations attributable to the Executive as a holder
of Executive Units hereunder. Executive Units will also include Units issued
with respect to Executive Units by way of a unit split, unit dividend or other
recapitalization. Executive Units will cease to be Executive Units when
Transferred pursuant to a Public Sale.
"FAIR MARKET VALUE" of each Junior Preferred Unit or Class B
Common Unit means the average of the closing prices of the sales of such Units
on all securities exchanges on which such Units may at the time be listed, or,
if there have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such Units are not so listed, the average of the
representative bid and asked prices quoted in the Nasdaq National Market System
as of 4:00 P.M., New York time, or, if on any day such Units are not quoted in
the Nasdaq System, the average of the highest bid and lowest asked prices on
such day in the domestic over-the-counter market as reported by the National
Quotation Bureau Incorporated, or any similar successor organization, in each
such case averaged over a period of 21 days consisting of the day as of which
the Fair Market Value is being determined and the 20 consecutive Business Days
prior to such day. If at any time the Junior Preferred Units or Class B Common
Units, as the case may be, are not listed on any securities exchange or quoted
in the Nasdaq National Market System or the over-the-counter market, the Fair
Market Value shall be the fair value of such Units determined in good faith by
the Board.
"FAMILY GROUP" means, with respect to an individual Person,
such Person, such Person's spouse, siblings, and descendants (whether natural,
by marriage or adopted) and any trust or limited liability company solely for
the benefit of such Person and/or such Person's spouse, siblings, their
respective ancestors and/or descendants (whether natural, by marriage or
adopted).
"GOOD REASON" means (i) a material reduction in Executive's
Base Salary, (ii) a requirement that Executive relocate more than 50 miles from
Executive's principal place of business or (iii) a Sale of the Company.
"INDEPENDENT THIRD PARTY" means any Person who, immediately
prior to the contemplated transaction, (i) does not hold in excess of 5% of the
Junior Common Units (any Person so holding in excess of 5% of the Junior Common
Units being referred to herein as, a "5% OWNER"), (ii) is not an Affiliate of
any 5% Owner, and (iii) is not a member of the Family Group of any 5% Owner.
"INITIAL PUBLIC OFFERING" means the initial underwritten
public offering of the Company's common equity securities pursuant to a
registration statement filed under the Securities Act with the Securities and
Exchange Commission, which offering results in net cash proceeds to the Company
of at least $50,000,000.
"INVESTOR UNITHOLDER" has the meaning assigned to such term in
the LLC Agreement.
"JUNIOR COMMON UNIT" has the meaning assigned to such term in
the LLC Agreement.
"JUNIOR PREFERRED UNIT" has the meaning assigned to such term
in the LLC Agreement.
"LLC AGREEMENT" means the Amended and Restated Limited
Liability Company Agreement of the Company, dated as of June 30, 1998, by and
among the Company and the parties thereto, as in effect from time to time.
"MANAGEMENT UNITHOLDER" has the meaning assigned to such term
in the LLC Agreement.
"NMI" has the meaning assigned to such term in the LLC
Agreement.
"ORIGINAL COST" means, with respect to each Junior Preferred
Unit or Class B Common Unit, the actual amount paid per Unit by the Executive
pursuant to this Agreement or after the date hereof, as adjusted for any split,
dividend, combination, exchange, recapitalization, merger, consolidation or
other reorganization.
"OWNERSHIP RATIO" has the meaning assigned to such term in the
LLC Agreement.
"PERMANENT DISABILITY" means Executive is unable to perform,
by reason of physical or mental incapacity, Executive's duties or obligations
under this Agreement, for a period of ninety (90) consecutive days or a total
period of one hundred eighty (180) days in any three hundred sixty (360) day
period.
"PERMITTED TRANSFEREE" means, as to any Person, the "Permitted
Transferees" (as defined in the LLC Agreement) of such Person.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PUBLIC SALE" means any sale of Units, following an Initial
Public Offering, to the public pursuant to an offering registered under the
Securities Act or to the public effected through a broker, dealer or market
maker pursuant to the provisions of Rule 144 under the Securities Act.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of June 30, 1998, by and among the Company and the parties
thereto, as in effect from time to time.
"REPRESENTATIVE" has the meaning assigned to such term in the
LLC Agreement.
"SALE OF THE COMPANY" means the sale of the Company, in one
transaction or a group of related transactions, pursuant to which any
Independent Third Party or affiliated group of Independent Third Parties
acquires (whether structured by way of merger, consolidation or sale or transfer
of the Company's or its Subsidiaries' equity or assets or otherwise) (a) all of
the equity of the Company or of all or substantially all of the Company's direct
and indirect Subsidiaries or (b) all or substantially all of the Company's and
its Subsidiaries' assets, properties, or business determined on a consolidated
basis.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any similar Federal statute then in effect, and any reference to a particular
section thereof shall include a reference to the comparable section, if any, of
any such similar Federal statute, and the rules and regulations promulgated
thereunder.
"SUBSIDIARY" of any Person (with respect to such Subsidiary,
the "PARENT") means any other Person whose (a) securities having ordinary voting
power to elect a majority of its board of directors or managing or general
partners (or other persons having similar functions) or (b) other ownership
interests (including partnership and membership interests) ordinarily
constituting a majority interest in the capital, profits or cash flow of such
Person, are at the time, directly or indirectly, owned or controlled by such
parent, or by one or more other Subsidiaries of such parent, or by such parent
and one or more of its other Subsidiaries.
"399 VENTURE" has the meaning assigned to such term in the LLC
Agreement.
"TERMINATION DATE" means the date on which the Employment
Period is terminated.
"TRANSFER" means any sale, transfer, assignment, pledge, or
other disposal (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law) of any interest in any Unit, and the terms
"Transferee," "Transferor," "Transferring," and "Transferred" shall have
correlative meanings.
"UNIT" shall have the meaning assigned to such term in the LLC
Agreement.
"UNITHOLDER" shall have the meaning assigned to such term in
the LLC Agreement.
"VECTURA" has the meaning assigned to such term in the LLC
Agreement.
"VESTING JUNIOR COMMON UNITS" means the Class B Common Units
acquired by the Executive hereunder, any security into which such Class B Common
Units are converted or exchanged, and any Units issued in connection therewith,
as adjusted for any split, dividend, combination, exchange, recapitalization,
merger, consolidation or other reorganization. Vesting Junior Common Units will
cease to be Vesting Junior Common Units when Transferred pursuant to a Sale of
the Company. Vesting Junior Common Units will continue to be Vesting Junior
Common Units in the hands of any holder other than the Executive, including all
Permitted Transferees of the Executive (except for the Company, and 399
Venture), and except as otherwise provided herein, each such other holder of
Vesting Junior Common Units will succeed to all rights and obligations
attributable to the Executive as a holder of Executive Units hereunder.
"VESTING JUNIOR PREFERRED UNITS" means the Junior Preferred
Units acquired by the Executive hereunder, any security into which such Junior
Preferred Units are converted or exchanged, and any Units issued in connection
therewith, as adjusted for any split, dividend, combination, exchange,
recapitalization, merger, consolidation or other reorganization. Vesting Junior
Preferred Units will cease to be Vesting Junior Preferred Units when Transferred
pursuant to a Sale of the Company. Vesting Junior Preferred Units will continue
to be Vesting Junior Preferred Units in the hands of any holder other than the
Executive, including all Permitted Transferees of the Executive (except for the
Company, and 399 Venture), and except as otherwise provided herein, each such
other holder of Vesting Junior Preferred Units will succeed to all rights and
obligations attributable to the executive as a holder of Executive Units
hereunder.
2. PURCHASE AND SALE OF EXECUTIVE UNITS; REPRESENTATIONS AND
WARRANTIES OF EXECUTIVE.
(a) Upon execution of this Agreement, the Executive will
purchase, and (i) the Company will sell 0 Junior Preferred Units at a price
of $10.00 per Junior Preferred Unit and 316.82 Class B Common Units at a
price of $10.00 per Class B Common Unit (such Junior Preferred Units and
Class B Common Units, the "Company Units"), for a total purchase price of
$3,168.22 (the "Company Purchase Price"), (ii) CSX will sell 4,648.64 Junior
Preferred Units at a price of $10.00 per Junior Preferred Unit and 40.28
Class B Common Units at a price of $10.00 per Class B Common Unit (such
Junior Preferred Units and Class B Common Units, the "CSX Units"), for a
total purchase price of $46,889.21 (the "CSX Purchase Price"), and (iii) 399
Venture will sell 6,969.44 Junior Preferred Units at a price of $10.00 per
Junior Preferred Unit and 63.94 Class B Common Units at a price of $10.00 per
Class B Common Unit (such Junior Preferred Units and Class B Common Units,
the "399 Venture Units"), for a total purchase price of $70,333.85 (the "399
Venture Purchase Price" and, together with the Company Purchase Price and the
CSX Purchase Price, the "Purchase Price"). On the date hereof (the "Purchase
Date"), The Executive will deliver to the Company, individually, and as agent
for 399 Venture and CSX with respect to the 399 Venture Purchase Price and
the CSX Purchase Price, respectively, a cashier's or certified check or wire
transfer of immediately available funds in an amount equal to the Purchase
Price and, upon satisfaction of the provisions of Section 2(b) hereof, the
Company shall amend Schedule A to the LLC Agreement to reflect the admittance
of the Executive as a Member, (as defined in the LLC Agreement). As soon as
practicable following the Purchase Date, the Company shall deliver, by wire
transfer of immediately available funds, (x) the 399 Venture Purchase Price
to 399 Venture and (y) the CSX purchase Price to CSX. The Purchase Data may
be extended at the option of the Company.
(b) Upon execution of this Agreement, the Executive shall
execute and deliver a joinder to the LLC Agreement and the Registration
Rights Agreement.
(c) With respect to the Vesting Junior Preferred Units and
Vesting Junior Common Units, upon execution of this Agreement, the Executive
will make an effective election with the Internal Revenue Service
under Section 83(b) of the Code and the regulations promulgated thereunder in
the form of EXHIBIT A attached hereto.
(d) In connection with the purchase and sale of the
Executive Units hereunder, the Executive represents and warrants to the
Company that:
(i) The Executive Units to be acquired by the
Executive pursuant to this Agreement will be acquired for the Executive's own
account and not with a view to, or intention of, distribution thereof in
violation of the Securities Act, or any other applicable federal or state or
foreign securities laws, and the Executive Units will not be disposed of in
contravention of the Securities Act or any applicable federal or state or
foreign securities laws.
(ii) No commission, fee or other remuneration is to be
paid or given, directly or indirectly, to any Person for soliciting the
Executive to purchase the Executive Units.
(iii) The Executive is an executive officer of the
Company, is sophisticated in financial matters, is able to evaluate the risks
and benefits of the investment in the Executive Units, and has determined
that such investment in the Executive Units is suitable for the Executive,
based upon the Executive's financial situation and needs, as well as the
Executive's other securities holdings.
(iv) The Executive:
(A) has not filed a registration statement which
is the subject of a currently effective registration stop order entered
pursuant to any state's securities law within the last five (5) years;
(B) has not been convicted within the last five
(5) years of any felony or misdemeanor in connection with the offer,
purchase, or sale of any security or any felony involving fraud or deceit,
including, but not limited to, forgery, embezzlement, obtaining money under
false pretenses, larceny, or conspiracy to defraud;
(C) is not currently subject to any state
administrative enforcement order or judgment entered by the state securities
administrator within the last five (5) years or is subject to any state's
administrative enforcement order or judgment in which fraud or deceit,
including, but not limited to, making untrue statements of material facts and
omitting to state material facts, was found and the order or judgment was
entered within the last five (5) years;
(D) is not subject to any state's administrative
enforcement order or judgment which prohibits, denies or revokes the use of
any exemption from registration in connection with the offer, purchase or
sale of securities; or
(E) is not currently subject to any order,
judgment or decree of any court of competent jurisdiction, entered within the
last five (5) years, temporarily or preliminarily restraining or enjoining
such party from engaging in or continuing any conduct or practice in
connection with the purchase or sale of any security or involving the making
of any false filing with the state.
(v) The Executive is able to bear the economic risk of
the Executive's investment in the Executive Units for an indefinite period of
time and the Executive understands that the Executive Units has not been
registered under the Securities Act and cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration is
available.
(vi) The Executive has had an opportunity to ask
questions and receive answers concerning the terms and conditions of the
offering of Executive Units and has had full access to such other information
concerning the Company as the Executive has requested.
(vii) The Agreement constitutes the legal, valid and
binding obligation of the Executive, enforceable in accordance with its
terms, and the execution, delivery and performance of this Agreement by the
Executive does not and will not conflict with, violate or cause a breach of
any agreement, contract or instrument to which the Executive is a party or
any judgment, order or decree to which the Executive is subject.
(e) As an inducement to the (x) the Company to issue the
Company Units to the Executive, and (y) CSX and 399 Venture to sell the CSX
Units and the 399 Venture Units, respectively, to the Executive and as a
condition thereto, the Executive acknowledges and agrees that:
(i) neither the issuance of the Executive Units to the
Executive nor any provision contained herein shall entitle the Executive to
remain in the employment of the Company and its Subsidiaries or affect the
right of the Company to terminate the Executive's employment at any time for
any reason; and
(ii) none of the Company, 399 Venture and CSX shall
have a duty or obligation to disclose to Executive, and Executive shall have
no right to be advised of, any material information regarding the Company and
its Subsidiaries at any time prior to, upon or in connection with, the
repurchase of Executive Units upon the termination of Executive's employment
with the Company and its Subsidiaries or as otherwise provided hereunder.
3. VESTING OF EXECUTIVE UNITS.
(a) Except as otherwise provided in Section 3(b) below, as
of September 1, 1999, 23.3333% of the Vesting Junior Preferred Units and
23.3333% of the Vesting Junior Common Units shall become vested if Executive
has been continuously employed by the Company as of such date. Thereafter,
except as otherwise provided in Section 3(b) below, on each calendar day-end
of the Company, so long as the Executive has been continuously employed by
the Company as of such calendar day-end, .07143% of the remaining Vesting
Junior Preferred Units and .07143% of the remaining Vesting Junior Common
Units shall become vested until the calendar day-ending June 30, 2003, such
that if Executive has been continuously employed by the Company until June
30, 2003, 100% of all Vesting Junior Preferred Units and Vesting Junior
Common Units which have not become vested shall become vested at the time of
such event.
(b) Upon the occurrence of (i) a Sale of the Company, (ii)
the termination by the Company of Executive's employment without Cause, (iii)
the voluntary resignation by Executive from employment with the Company for
Good Reason, or (iv) the termination of Executive's employment with the
Company as a result of the exercise of the Executive Option (as defined below
in Section 6(d)) all Vesting Junior Preferred Units and Vesting Junior Common
Units which have not yet become vested shall become vested at the time of
such event. Upon the occurrence of an Initial Public Offering, a number of
unvested Vesting Junior Preferred Units equal to the lesser of 20% of all
Vesting Junior Preferred Units or the number of all Unvested Junior Preferred
Units and a number of unvested Vesting Junior Common Units equal to the
lesser of 20% of all Vesting Junior Common Units or the number of all
unvested Junior Common Units shall become vested at the time of such event.
(c) Vesting Junior Preferred Units and Vesting Junior
Common Units which have become vested and all other Units which are currently
vested are referred to herein as "VESTED UNITS". All other shares of Vesting
Junior Preferred Units and Vesting Junior Common Units are referred to herein
as "UNVESTED XXXXX".
0. XXXXXXXXXX OPTION.
(a) In the event the Executive ceases to be employed by any
member of the Company Group (i) for Cause or (ii) as a result of the
voluntary resignation by Executive other than for Good Reason or pursuant to
the Executive Option (the "TERMINATION"), the Executive Units (whether held
by the Executive or one or more of such Person's Permitted Transferees) shall
be subject to repurchase by the Company and the Other Unitholders (as defined
in Section 4(d) below) pursuant to the terms and conditions set forth in this
Section 4 (the "REPURCHASE OPTION").
(b) For purposes of the Repurchase Option, the purchase
price for each Executive Unit shall be Original Cost for such Unit.
(c) The Board may elect to purchase any or all of the
Executive Units by delivering written notice (the "REPURCHASE NOTICE") to the
Executive within 75 days after the date of such Termination. The Repurchase
Notice shall set forth the aggregate consideration to be paid for such Units
and the time and place for the closing of the transaction. If the Executive
has Transferred any Executive Units to Permitted Transferees and the Company
exercises its Repurchase Option hereunder, the Company shall purchase any or
all Executive Units held by the Executive or such Permitted Transferee(s).
(d) If, for any reason, the Company does not elect to
purchase any Executive Units pursuant to the Repurchase Option, the
Unitholders (other than the Investor Unitholders and the Management
Unitholders) holding Units of the same class as the Executive Units (or their
respective designees) (such Persons, the "OTHER UNITHOLDERS") shall be
entitled to exercise the Repurchase Option for such Executive Units (the
"AVAILABLE UNITS") on a PRO RATA basis (based on the Ownership Ratio of each
Other Unitholder calculated solely with respect to each class of Executive
Unit to be repurchased). As soon as practicable after the Company has
determined that there will be Available Units, but in any event within 60
days after the Termination, the Company shall give written notice (the
"OPTION NOTICE") to the Other Unitholders (or their respective designees)
setting forth the number of Available Units and the purchase price for such
Available Units. The Other Unitholders (or their respective designees) may
elect to purchase any or all of the Available Units on a PRO RATA basis
(based on the Ownership Ratio of each Other Unitholder calculated solely with
respect to each class of Executive Unit to be repurchased) by giving written
notice to the Company within 10 days after the Option Notice has been given
by the Company; PROVIDED, that if any Other Unitholder elects not to purchase
its PRO RATA share of the Units to be repurchased, the remaining Other
Unitholders that have so elected may purchase their PRO RATA share of such
unpurchased Units (based on the Ownership Ratio of each remaining Other
Unitholder calculated solely with respect to each class of Executive Unit to
be repurchased). As soon as practicable, and in any event within five days
after the expiration of the 10-day period set forth above, the Company shall
notify Executive as to whether the Executive Stock is being purchased by the
Other Unitholders (or their respective designees) (the "SUPPLEMENTAL
REPURCHASE NOTICE"). At the time the Company delivers the Supplemental
Repurchase Notice to Executive, the Company shall also deliver written notice
to the Other Unitholders (or their respective designees) setting forth the
aggregate purchase price and the time and place of the closing of the
transaction. If the Executive has Transferred any Executive Stock to a
Permitted Transferee and the Other Unitholders exercise their respective
Repurchase Options hereunder, such Other Unitholders (or their respective
designees) shall purchase any or all Executive Units held by such Permitted
Transferee.
(e) The closing of the purchase of the Executive Units
pursuant to the Repurchase Option shall take place on the date designated by
the Company in the Repurchase Notice or Supplemental Repurchase Notice, which
date shall not be more than 15 days nor less than five days after the
delivery of the later of either such notice to be delivered. The Company
and/or the Other Unitholders (or their respective designees) shall pay for
the Executive Units to be purchased pursuant to the Repurchase Option by
delivery of a check or wire transfer of funds. The Company and/or the Other
Unitholders (or their respective designees) shall be entitled to receive
customary representations and warranties from the Executive regarding such
sale of Units (including representations and warranties regarding good title
to such Units, free and clear of any liens or encumbrances). Any Executive
Units not purchased pursuant to the Repurchase Option shall become Vested
Units.
(f) The right of the Company and/or the Other Unitholders
(or their respective designees) to repurchase the Executive Units pursuant to
this Section 4 shall terminate upon a Sale of the Company or a Qualified
Public Offering.
(g) Notwithstanding anything to the contrary contained in
this Agreement, all repurchases of Executive Units by the Company shall be
subject to applicable restrictions contained in the Act and in the debt and
equity financing agreements of the Company and its Subsidiaries.
5. RESTRICTIONS ON TRANSFER.
(a) GENERAL. All Transfers of Executive Units shall be
subject to the provisions of Article VIII of the LLC Agreement.
(b) LEGEND. The certificates representing the Executive
Units will bear the legend set forth in Section 8.4 of the LLC Agreement.
6. EMPLOYMENT.
(a) The Company agrees to employ Executive, and Executive
hereby accepts employment with the Company, and such other members of the
Company Group as the Board shall determine, upon the terms and conditions set
forth in this Agreement for the period beginning on the date hereof and
ending as provide din Section 6(d) (the "EMPLOYMENT PERIOD").
(b) POSITION AND DUTIES.
(i) Commencing on the date hereof and continuing
during the Employment Period, Executive shall serve as Chairman of the Board
and shall report to the Chief Executive Officer of the Company. Executive
shall have such duties, responsibilities and authority as specified from time
to time by the Chief Executive Officer of the Company, subject in each
instance to the supervision and direction of the Board.
(ii) Executive shall devote his efforts and his
full business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and
affairs of the Company Group; PROVIDED, that Executive shall be permitted to
perform and fulfill his duties and responsibilities as the Chief Executive
Officer of Vectura, and as a director of companies that do not compete with
the Business. Executive shall perform his duties and responsibilities to the
Company to the best of the Executive's abilities in a diligent, trustworthy,
businesslike and efficient manner.
(c) BASE SALARY AND BENEFITS.
(i) BASE SALARY. During the Employment Period,
Executive's total base salary shall be $269,500.00 per annum or such greater
amount as the Board shall determine from time to time in its sole discretion
(the "BASE SALARY"), which Base Salary shall be payable in regular
installments in accordance with the Company's general payroll practices and
shall be subject to customary withholding.
(ii) BONUS. During the Employment Period,
Executive shall be eligible to participate in the bonus arrangements
established by the Board for the executives of the Company Group (the "BONUS
PLAN"), which participation shall be determined by the Board pursuant to its
customary review and approval process.
(iii) BENEFITS. During the Employment Period,
Executive shall be eligible to participate in all of the benefit and other
perquisite plans as are made available by the Company to executive level
employees of the Company (collectively, "BENEFITS"). The Company shall
maintain, at a cost not to exceed $15,000 per annum, a $1,000,000 term life
insurance policy for Executive with benefits payable under such policy to
Executive through the termination of the Employment Period.
(iv) VACATION. Executive shall be entitled to
eight (8) weeks paid vacation annually.
(d) TERM.
(i) The Employment Period shall end on the fifth
(5th) anniversary of June 30, 1998, subject to earlier terminations (i) by
reason of Executive's death or Permanent Disability, (ii) by resolution of a
majority of the Representatives of the Board, with or without Cause, (iii) by
reason of Executive's resignation for Good Reason, or (iv) upon Executive's
voluntary resignation; PROVIDED, that from September 1, 1999 to and including
September 30, 1999, Executive shall have the right to elect to terminate the
Employment Period by delivering written irrevocable notice signed by the
Executive to the Company of such intention (the "EXECUTIVE OPTION").
(ii) If the Employment Period is terminated (i) by
the Board without Cause, (ii) by the Executive for Good Reason, or (iii) as a
result of the exercise of the Executive Option, the Executive shall be
entitled to receive an amount (the "SEVERANCE AMOUNT") equal to $2,000,000
less the amount of Base Salary and any amounts paid pursuant to the Bonus
Plan paid by the Company to the Executive in cash from June 30, 1998 to and
including the Termination Date.
(iii) Executive agrees that Executive shall be
entitled to receive the Severance Amount if and only if Executive has not
materially breached (as determined in good faith by the Board) as of the
Termination Date, the provisions of Sections 7 and 8 hereof and does not
breach the provisions of such Sections at any time during the period for
which payments of the Severance Amount are to be made or provided; PROVIDED,
that the Company's obligation to make such payments will be terminated upon
the occurrence and during the continuance of any such breach during such
period; PROVIDED, FURTHER, that the Company will resume making such payments
to Executive during such severance period at such time as the Board
determines in good faith that any such breach has ceased or otherwise been
cured.
(iv) Any payments of the Severance Amount shall be
made in equal quarterly installments (net of any withholding taxes) from the
Termination Date to and including June 30, 2003, it being understood that
such payments shall continue to be made to the Executive's estate (or
beneficiaries or successors thereto) in the event of Executive's death prior
to June 30, 2003, and, as of the date of the final such payment, none of the
Company or any other member of the Company Group shall have any further
obligation to Executive pursuant to this Section 6 except as provided by
applicable law.
(e) EXECUTIVE HEREBY AGREES THAT NO SEVERANCE COMPENSATION
OF ANY KIND, NATURE OR AMOUNT SHALL BE PAYABLE TO EXECUTIVE IN CONNECTION
WITH ANY TERMINATION OF THE EMPLOYMENT PERIOD, EXCEPT AS EXPRESSLY SET FORTH
IN THIS SECTION 6, AND EXECUTIVE HEREBY IRREVOCABLY WAIVES ANY CLAIM FOR ANY
OTHER SEVERANCE COMPENSATION.
(f) Except as required by applicable law, all of
Executive's rights to Benefits and any amounts payable pursuant to the Bonus
Plan (if any) accruing after the Termination Date shall cease upon the
Termination Date.
7. INVENTIONS AND PATENTS. Executive agrees that all
inventions, innovations, improvements, developments, methods, designs,
analyses, drawings, reports, and all similar or related information which
relates to the Company's or any of its Subsidiaries' actual or anticipated
business, research and development or existing or future products or services
and which are conceived, developed or made by Executive prior to the date
hereof while employed by the company or any of its Subsidiaries
(collectively, the "WORK PRODUCT") belong to the Company or such Subsidiary.
Executive will promptly disclose such Work Product to the Board and perform
all actions reasonably requested by the Board (whether during or after
Executive's employment period) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
8. NON-COMPETE, NON-SOLICITATION.
(a) As an inducement to the Company to enter into this
Agreement and issue the Executive Units hereunder, the Executive agrees that,
during (A) the period of Executive's employment with the Company, and (B)
thereafter, so long as the Company is complying with its payment obligations
to the Executive hereunder
or under any severance arrangements, for a period equal to the period that
Executive is receiving severance compensation from the Company Group pursuant
to the terms and conditions of Section 6 hereof (the "NONCOMPETE PERIOD"),
Executive shall not directly or indirectly own, manage, control, participate
in, consult with, render services for, or in any manner engage in, any
business competing directly or indirectly with the business as now conducted
or as conducted as of the date of Termination Date, within any metropolitan
area in which the Company or any of its Subsidiaries engages or has
definitive plans to engage in such business as of the date of Termination
Date; PROVIDED, that the Executive shall not be precluded from purchasing or
holding publicly-traded securities of any such entity so long as the
Executive shall hold less than 2% of the outstanding units of any such class
of securities and has no active participation in the business of such entity.
(b) During the Noncompete Period, the Executive shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee of the Company or any other member of the Company Group to leave
the employ of the Company or such other member of the Company Group, (ii)
hire any person who was an employee of the Company or any other member of the
Company Group at any time during Executive's employment with the Company or
any other member of the Company Group or (iii) induce or attempt to induce
any customer, supplier, licensee, franchisor or other business relation of
the Company to cease doing business with the Company or such other member of
the Company Group.
(c) The provisions of this Section 8 shall survive any
termination of this Agreement.
(d) If, at the time of enforcement of this Section 7, a
court of competent jurisdiction shall hold that the duration, scope or area
restrictions stated herein are unreasonable under circumstances then
existing, the parties hereto agree that the maximum duration, scope or area
reasonable under such circumstances shall be substituted for the stated
duration, scope or area and that such court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and area
permitted by law.
(e) The Executive acknowledges that such Executive may have
access to certain confidential, non-public and proprietary information (the
"CONFIDENTIAL INFORMATION"), concerning the Company and its Subsidiaries and
their respective officers, directors, shareholders, employees, agents and
representatives and agrees that: (i) unless pursuant to prior written consent
by the Company, the Executive shall not disclose any Confidential Information
or the provisions of this Agreement or knowledge of this Agreement's
existence to any Person for any purpose whatsoever unless compelled by court
order or subpoena; (ii) the Executive shall treat as confidential all
Confidential Information and shall take reasonable precautions to prevent
unauthorized access to the Confidential Information; (iii) the Executive
shall not use the Confidential Information in any way detrimental to the
Company or any of its Subsidiaries and shall use the Confidential Information
for the exclusive purpose of effecting his duties of employment with the
Company; and (iv) the Executive agrees that the Confidential Information
obtained during his employment with the Company shall remain the exclusive
property of the Company and its Subsidiaries, and the Executive shall
promptly return to the Company all material which incorporates, or is derived
from, all such Confidential Information immediately following the Termination
Date. The Executive shall be responsible for any breach of the terms of this
Section 8(e) by any holder of the Executive Units issued to the Executive
hereunder. It is hereby agreed that Confidential Information does not include
information generally available and known to the public or obtained from a
source not bound by a confidentiality agreement with the Company.
9. NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally, mailed by certified or registered mail, return receipt requested
and postage prepaid, or sent via a nationally recognized overnight courier,
or sent via facsimile to the recipient with a confirmation of receipt and
accompanied by a certified or registered mailing. Such notices, demands and
other communications will be sent to the address indicated below:
TO THE COMPANY:
American Commercial Lines Holdings LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, Xxxxxxx 00000
Attention: President
Telecopy No.: (000) 000-0000
WITH A COPY (WHICH SHALL NOT CONSTITUTE NOTICE TO
THE COMPANY):
399 Venture Partners, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx, Xx.
Telecopy No.: (000) 000-0000
AND
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
TO THE EXECUTIVE:
c/o Vectura Group, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx III
Telecopy No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
10. MISCELLANEOUS.
(a) TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or
attempted Transfer of any Executive Units in violation of any provision of
this Agreement shall be null and void, and the Company shall not record such
Transfer on its books or treat any purported transferee of such Executive
Units as the owner of such securities for any purpose.
(b) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability
will not affect any other provision or any other jurisdiction, but this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision had never been contained
herein.
(c) COMPLETE AGREEMENT. This Agreement, the LLC Agreement,
and the Registration Rights Agreement embody the complete agreement and
understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any
way.
(d) WAIVER OF JURY TRIAL. The parties to this Agreement
each hereby waives, to the fullest extent permitted by law, any right to
trial by jury of any claim, demand, action, or cause of action (i) arising
under this Agreement or (ii) in any way connected with or related or
incidental to the dealings of the parties hereto in respect of this Agreement
or any of the transactions related hereto, in each case whether now existing
or hereafter arising, and whether in contract, tort, equity, or otherwise.
The parties to this Agreement each hereby agrees and consents that any such
claim, demand, action, or cause of action shall be decided by court trial
without a jury and that the parties to this Agreement may file an original
counterpart of a copy of this Agreement with any court as written evidence of
the consent of the parties hereto to the waiver of their right to trial by
jury.
(e) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which when executed and delivered shall be an
original, and all of which when executed shall constitute one and the same
instrument.
(f) SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Executive, the Company, and their respective successors and assigns
(including subsequent holders of Executive Units); PROVIDED, that the rights
and obligations of the Executive under this Agreement shall not be assignable
except in connection with a permitted transfer of Executive Units hereunder.
(g) GOVERNING LAW. THE LAWS OF THE STATE OF DELAWARE AND
THE ACT WILL GOVERN ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE
COMPANY AND ITS UNITHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS HERETO WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(h) REMEDIES. Each of the parties to this Agreement will be
entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including reasonable attorney's fees) caused by any breach
of any provision of this Agreement and to exercise all other rights existing
in its favor. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this Agreement
and that any party may in its sole discretion apply to any court of law or
equity of competent jurisdiction (without posting any bond or deposit) for
specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
(i) AMENDMENT AND WAIVER. The provisions of this Agreement
(except for the provisions of Section 2 hereof) may be amended and waived
only with the prior written consent of the Company and the Executive;
provided, that the provisions of Section 2 hereof may be amended and waived
only with the prior written consent of each party hereto.
(j) TIMING. Time shall be of the essence in the performance
of the obligations, covenants and agreements contained in this Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Executive Unit Purchase and Employment Agreement as of the date first written
above.
AMERICAN COMMERCIAL 399 VENTURE PARTNERS, INC.
LINES HOLDINGS LLC
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------- --------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: President & CEO Title: Vice President
CSX XXXXX CORP.
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxx Xxxxxxxx III
-------------------------- --------------------------
Name: Xxxxx X. Xxxxx Xxxxx Xxxxxxxx III
Title: Vice President
CONSENT OF SPOUSE
The undersigned spouse of the Executive named in the attached
Agreement (the "SPOUSE") has read and understands the terms of the Agreement
and has had an opportunity to discuss it with individuals of the Spouse's
choice. The undersigned Spouse understands that even if the securities
referred to in the Agreement are considered to be a part of the "marital
property" belonging to the Spouse and the Executive, the Agreement restricts
the transfer or distribution of those securities to anyone other than the
Executive, a "PERMITTED TRANSFEREE" as such term is defined in the LLC
Agreement (as defined in the attached Agreement), the company which issued
the securities and certain other persons. The undersigned Spouse agrees to
these restrictions and waives any rights (other than to the economic value of
such securities) the undersigned might otherwise have in those shares as
specifically identifiable property.
/s/ Suse X. Xxxxxxxx
-----------------------------------------
(Signature)
Suse X. Xxxxxxxx
-----------------------------------------
(Print Name)
