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EXHIBIT 10.2
XXXX X. XXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is dated as of January
18, 2005 (the "Effective Date"), by and between American Commercial Lines Inc.,
a Delaware corporation (the "COMPANY"), and Xxxx X. Xxxxxx (the "EXECUTIVE").
WHEREAS, the Company wishes to offer employment to the Executive,
and the Executive wishes to accept such offer, on the terms set forth below.
WHEREAS, the Executive acknowledges and understands that, during the
course of his employment by the Company, the Executive will become familiar with
certain Confidential Information (as defined below) of the Company and its
subsidiaries and affiliates which is exceptionally valuable to the Company and
vital to the success of the Company's Business (as defined below).
WHEREAS, the Company and Executive desire to protect such
Confidential Information from disclosure to third parties or use of such
information to the detriment of the Company.
Accordingly, the parties hereto agree as follows:
1. Term. The Company hereby employs the Executive, and the Executive hereby
accepts such employment for an initial term commencing as of the date hereof and
ending on the third anniversary of the Effective Date, unless sooner terminated
in accordance with the provisions of Section 4 or Section 5 (the period during
which the Executive is employed hereunder being hereinafter referred to as the
"Term"). The Term shall be subject to one-year renewals at the written election
of the Company. In the event that the Company elects to renew this Agreement,
notice shall be provided to the Executive in accordance with Section 8.4 hereof
at least ninety (90) days prior to the end of any such Term. Notwithstanding the
employment of the Executive by the Company, the Company shall be entitled to pay
the Executive from the payroll of any subsidiary of the Company.
2. Duties. During the Term the Executive shall serve as President and Chief
Executive Officer of the Company and President and Chief Executive Officer of
each of the operating companies that are subsidiaries or controlled affiliates
of the Company. The Executive shall be nominated for election to the Board of
Directors of the Company (the "Board") and shall be appointed as a member of the
board of directors or managers of each of the operating companies that are
subsidiaries or controlled affiliates of the Company. The Executive shall not be
entitled to additional compensation for serving as an officer (or similar
function) or a member of the Board or the board of directors or managers of any
subsidiary or affiliate of the Company. The Executive shall faithfully perform
for the Company the duties of said offices and shall perform such other duties
of an executive, managerial or administrative nature consistent with those of
the most senior executive officer as shall be specified and designated from time
to time
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by the Board. The Executive agrees to devote his entire business time, attention
and energies to the business and interests of the Company during the Term of
this Agreement and any extension thereof. Executive shall not engage in any
activities which will interfere with the performance of his duties with the
Company or which knowingly present a conflict of interest. During the
Executive's employment with the Company, Executive may serve on the boards of
directors of up to three (3) other entities and may pursue passive investments;
provided that such activities do not unreasonably interfere with his duties and
responsibilities hereunder or create a conflict of interest with the Company;
and further provided that, with respect to serving on the boards of directors of
entities other than charitable organizations and not-for-profit corporations,
the Executive shall obtain the prior written consent of the Board or authorized
committee thereof. The Board may delegate its authority to take any action under
this Agreement to the Compensation Committee of the Board (the "Compensation
Committee").
3. Compensation.
3.1 Salary. The Company shall pay to the Executive during the Term a
base salary at no less than the rate of $450,000 per annum (the "Base Salary"),
in accordance with the customary payroll practices of the Company applicable to
senior executives generally. The Base Salary shall be reviewed annually,
commencing with the first anniversary of the Effective Date, and may be
increased (but not decreased) to such greater amount as may be approved by the
Board (after consideration of the recommendation of the Compensation Committee)
and, upon such increase, the increased amount shall thereafter be deemed to be
the Base Salary for purposes of this Agreement.
3.2 Bonus. The Compensation Committee shall review Executive's
performance at least annually during each year of the Term and cause the Company
to award Executive a cash bonus with a target of 75% of his Base Salary which
the Compensation Committee shall reasonably determine as fairly compensating and
rewarding Executive for services rendered to the Company and/or as an incentive
for continued service to the Company. The amount of Executive's cash bonus shall
be determined upon approval by the Board (after consideration of the
recommendation of the Compensation Committee) and shall be dependent upon, among
other things, the achievement of certain performance targets mutually agreed by
the Executive and the Board (after consideration of the recommendation of the
Compensation Committee).
3.3 Equity Awards.
(a) Restricted Stock. Pursuant to the American Commercial
Lines Inc. Equity Award Plan for Employees, Officers and Directors, adopted by
the Board on January 10, 2005, the Company shall grant to the Executive 56,076
shares of common stock (the "Restricted Stock"), representing one per cent (1%)
of the issued and outstanding shares of common stock of the Company ("Common
Stock") as of the Effective Date. The Restricted Stock shall be restricted and
non-transferable, as set forth in the Restricted Stock Award Agreement, in the
form attached hereto as Exhibit A. Executive shall be entitled only to such
rights with respect to the Restricted Stock, as are set forth in the Restricted
Stock Award Agreement. The restrictions upon the Restricted Stock shall lapse
and Executive shall acquire "ownership" of the Restricted Stock on a pro rata
basis over a period of three (3) years from the
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date of grant. Any future awards of restricted stock, if any, shall be subject
to performance-based vesting requirements.
(b) Stock Options. Pursuant to the American Commercial Lines
Inc. Equity Award Plan for Employees, Officers and Directors, adopted by the
Board on January 10, 2005, the Company shall grant to the Executive options to
purchase 56,076 shares of Common Stock (the "Options"), representing one per
cent (1%) of the issued and outstanding shares of Common Stock as of the
Effective Date with an exercise price per share equal to the fair market value
of a share of Common Stock on the Effective Date. For purposes hereof, as
determined by the bankruptcy court, upon emergence from Chapter 11 proceedings,
the "fair market value" of the Common Stock means $16.65 per share. The Options
shall be restricted and non-transferable, as set forth in the Stock Option
Agreement, in the forms attached hereto as Exhibits B-1 and B-2. To the extent
permitted by applicable law, the Options shall be incentive stock options in
each year and, with respect to any Options that are vested, shall be exercisable
for the applicable periods set forth in the Stock Option Agreement. The term of
the Options shall be for a period of ten (10) years following the date of the
grant of the Options hereunder, shall vest on a pro rata basis over a period of
three (3) years following the date of grant, shall be exercisable, to the extent
vested, for a period of twelve (12) months following termination, and shall be
subject to such other terms and conditions not inconsistent with the terms of
this Agreement as are set forth in the Stock Option Agreement to be executed by
the Company and Executive and as determined by the Compensation Committee.
Executive shall not be entitled to any rights with respect to the Common Stock
underlying the Options, including the right to vote or receive dividends or
distributions with respect to any of the Common Stock underlying the Options,
until such Options (or any portion thereof) have been exercised. Any future
awards of options, if any, shall be subject to performance-based vesting
requirements.
3.4 Return and/or Forfeiture of Performance-Based Payments or
Awards. Notwithstanding any other provision in this Agreement or in the Stock
Option Agreement or Restricted Stock Award Agreement, to the extent applicable
and in the event that pursuant to the terms or requirements of the
Xxxxxxxx-Xxxxx Act of 2002 or of any applicable laws, rules or regulations
promulgated by the Securities and Exchange Commission or any listing
requirements of any stock exchange or stock market on which any securities of
the Company trade, from time to time, and in the event any bonus payment, stock
award or other payment is based upon the satisfaction of financial performance
metrics which are subsequently reversed due to a restatement or reclassification
of financial results of the Company or any subsidiary or affiliate, then any
payments made or awards granted shall be returned and forfeited to the extent
required and as provided by applicable laws, rules, regulations or listing
requirements. The awards made as of the date of this Agreement pursuant to
Section 3.3 of this Agreement are not subject to this Section 3.4. This Section
3.4 shall survive any expiration or termination of this Agreement for any
reason.
3.5 Benefits - In General. The Executive shall be permitted during
the Term to participate in any group life, hospitalization or disability
insurance plans, health programs, pension and profit sharing plans and similar
benefits that may be available to other senior executives of the Company
generally, on the same terms as may be applicable to such other executives.
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3.6 Vacation. During the Term, the Executive shall be entitled to
vacation of not less than four (4) weeks per year.
3.7 Disability and Life Insurance Benefits. During the Term, the
Executive shall be entitled to long-term disability coverage providing benefits
(to continue for such period as is provided in the applicable disability plan or
program, as amended from time to time) equal to 60% of Base Salary up to a
maximum of $20,000 per month in the case of a covered disability (with up to
$15,000 per month payable under the applicable disability plan or program and up
to $5,000 per month payable by the Company), and term life insurance policy with
a face amount equal to $5 million, of which one-half will be payable to the
Company and one-half payable to the Executive. The Company shall use
commercially reasonable efforts to obtain such policies as soon as is reasonably
practicable following execution of this Agreement.
3.8 Expenses. The Company shall pay or reimburse the Executive for
all travel, lodging, meals, entertainment or any other similar expenses incurred
by Executive in connection with the performance of Executive's duties hereunder
upon receipt of documentation therefor in accordance with the Company's regular
reimbursement procedures and practices in effect from time to time.
3.9 Relocation Expenses. The Company shall reimburse the Executive
for the customary and reasonable relocation expenses that he and his family
incur in moving his residence to the Jeffersonville, Indiana area. Without
limiting the generality of the foregoing, the Company agrees that it will pay
the reasonable costs of relocating the Executive and his family from his
existing residence in Lafayette, Indiana (the "Lafayette Home") to the
Jeffersonville, Indiana area. Such costs shall include: (a) the cost of having a
nationally-recognized moving company with an existing agreement with the Company
move the household items and automobiles of the Executive and his family, such
costs to be grossed up so that the Executive pays no federal or state income
taxes for such move and storage; (b) the closing costs, including real estate
commission, transfer taxes, title searches, survey costs, and reasonable
attorneys' fees, incurred by the Executive in selling his Lafayette Home; and
(c) the closing costs, including transfer taxes, title searches, survey costs,
reasonable points (consistent with the marketplace and Company policy) for a
mortgage, inspection fees, and reasonable attorneys' fees, incurred by the
Executive in purchasing a residence in the Jeffersonville, Indiana area. Until
the sale of the Lafayette Home is consummated, but not later than December 31,
2005, the Company shall provide the Executive, at the Company's expense
(including utilities), with lodging at a hotel, apartment, townhouse, or house
mutually agreeable to the Executive and the Company, within reasonable commuting
distance of the Jeffersonville, Indiana area. Until the sale of the Lafayette
Home is consummated, the Company shall also reimburse the Executive, in
accordance with the Company's travel reimbursement policy, for the reasonable
travel expenses he incurs in commuting on weekends between the Jeffersonville,
Indiana area and his Lafayette Home so that the Executive may make periodic
visits to his wife and family and assist in the sale of the Lafayette Home. The
Company shall also reimburse the Executive's wife for the travel expenses she
incurs for up to two "house hunting" and relocation trips from the Lafayette
Home to the Jeffersonville, Indiana area. Prior to the date hereof, the
Executive shall cause an appraisal of the fair market value ("Fair Market
Value") of the Lafayette Home, reasonably acceptable to the Company, to be
conducted. In the event that the Executive sells the Lafayette Home at any time
prior to December 31, 2005, then if the sale price of the Lafayette Home is (i)
less than the Fair
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Market Value, the Company shall pay to the Executive an amount equal to the
difference between the Fair Market Value and the sale price (the "Sale
Protection Payment"); provided, however, that in no event shall the Sale
Protection Payment be greater than 10% of the Fair Market Value (the "Sale
Protection Maximum Payment"); or (ii) greater than or equal to the Fair Market
Value, then the Company shall pay to the Executive an amount equal to 50% of the
Sale Protection Maximum Payment.
4. Termination upon Death or Disability. If the Executive dies
during the Term, the obligations of the Company to or with respect to the
Executive shall terminate in their entirety except as otherwise provided under
this Section 4. If the Executive becomes eligible for disability benefits under
the Company's long-term disability plans and arrangements (or, if none apply,
would have been so eligible under the most recent plan or arrangement), the
Company shall have the right, to the extent permitted by law, to terminate the
employment of the Executive upon notice in writing to the Executive and such
termination in and of itself shall not be, nor shall it be deemed to be, a
breach of this Agreement; provided, that, the Company will have no right to
terminate the Executive's employment if, in the opinion of a qualified physician
reasonably acceptable to the Company, it is reasonably certain that the
Executive will be able to resume the Executive's duties on a regular full-time
basis within 90 days of the date the Executive receives notice of such
termination.
Upon death or other termination of employment by virtue of
disability, (i) the Executive (or the Executive's estate or beneficiaries in the
case of the death of the Executive) shall have no right to receive any
compensation or benefit hereunder on and after the Effective Date of the
termination of employment other than Base Salary and other benefits, including
payment for accrued but unused vacation (but excluding any bonuses except as
provided in the bonus plan or in clause (ii) below) earned and accrued under
this Agreement prior to the date of termination (and reimbursement under this
Agreement for expenses incurred but not paid prior to the date of termination);
(ii) all equity awards held by the Executive shall become fully vested and
exercisable; and (iii) this Agreement shall otherwise terminate upon such death
or other termination of employment and there shall be no further rights with
respect to the Executive hereunder (except as provided in Section 7.8). For the
avoidance of doubt, the Executive acknowledges and agrees that the payments set
forth in this Section 4 constitute liquidated damages for termination of his
employment during the Term upon death.
5. Other Terminations of Employment.
5.1 Termination for Cause; Termination of Employment by the
Executive Without Good Reason.
(a) For purposes of this Agreement, "Cause" shall mean that
the Executive has:
(i) been convicted of, or plead nolo contendere
to, a felony or crime involving moral turpitude or an
indictment for any felony or misdemeanor involving moral
turpitude, if such indictment is not discharged or otherwise
resolved within 18 months; or
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(ii) committed an act of personal dishonesty or
fraud involving personal profit in connection with the
Executive's employment by the Company; or
(iii) committed a material breach of any material
covenant, provision, term, condition, understanding or
undertaking set forth in this Agreement, including, without
limitation, the provisions contained in Sections 7.1, 7.2, 7.3
or 7.4 hereof; or
(iv) committed an act which the Board has found to
have involved willful misconduct or gross negligence on the
part of the Executive; or
(v) failed or refused to substantially perform the
lawful duties of his employment in any material respect; or
(vi) failed to comply with the lawful material
written rules and material policies of the Company in any
material respect, as determined by the Board of Directors;
provided, however, that no termination under clause (iii), (iv), (v) or
(vi) above shall be effective unless Executive shall have first received
written notice describing in reasonable detail the basis for the
termination and within fifteen (15) days following delivery of such notice
Executive shall have failed to cure such alleged behavior constituting
"cause"; provided, further, that this notice requirement prior to
termination shall be applicable only if such behavior or breach is capable
of being cured.
(b) "Good Reason" shall mean the resignation of the Executive
from employment with the Company following the occurrence of one or more of the
events set forth in clauses (i) through (iv) below without the prior written
consent of the Executive, provided that, in connection with any event or events
specified in clauses (i) through (v) below, (1) Executive delivers written
notice to the Company of his intention to resign from employment due to one or
more of such events, which notice specifies in reasonable detail the
circumstances claimed to provide the basis for such resignation, and (2) such
event or events are not cured by the Company within fifteen (15) days following
delivery of such written notice:
(i) any reduction in Executive's annual rate of
Base Salary;
(ii) any removal by the Company of Executive from
his position indicated in Section 2 or the assignment to
Executive of duties and responsibilities materially
inconsistent and adverse with the duties indicated in Section
2, except in connection with termination of Executive's
employment for Cause or disability (pursuant to Section 4
hereof);
(iii) the Company's failure to comply with any of
the
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material terms of this Agreement;
(iv) the occurrence of a Change in Control
pursuant to which the Company or any successor company, as the
case may be, does not agree, as of the date of such Change in
Control, to assume this Agreement; or
(v) if the Executive is not presented to the
stockholders of the Company as a candidate for election to the
Board or is removed from the Board other than for cause.
(c) The Company may terminate the Executive's employment
hereunder for Cause and such termination in and of itself shall not be, nor
shall it be deemed to be, a breach of this Agreement. If the Company terminates
the Executive for Cause, (i) the Executive shall have no right to receive any
compensation or benefit hereunder on and after the Effective Date of the
Termination of employment other than Base Salary and other benefits, including
payment for accrued but unused vacation (but excluding any bonus) earned and
accrued under this Agreement prior to the Effective Date of the Termination of
employment (and reimbursement under this Agreement for expenses incurred but not
paid prior to the Effective Date of the Termination of employment); and (ii)
this Agreement shall otherwise terminate upon such termination of employment and
the Executive shall have no further rights hereunder (except as provided in
Section 7.8). For purposes of this Section 5.1(c), the "Effective Date of the
Termination" shall mean the date on which a notice of termination is given or
any later date (within thirty (30) days after the giving of such notice) set
forth in such notice of termination.
(d) The Executive may terminate his employment without Good
Reason. If the Executive terminates his employment with the Company without Good
Reason: (i) the Executive shall have no right to receive any compensation or
benefit hereunder on and after the Effective Date of the Termination of
employment other than Base Salary and other benefits, including payment for
accrued but unused vacation (but excluding any bonus) earned and accrued under
this Agreement prior to the Effective Date of the Termination of employment (and
reimbursement under this Agreement for expenses incurred but not paid prior to
the Effective Date of the Termination of employment); and (ii) this Agreement
shall otherwise terminate upon such termination of employment and the Executive
shall have no further rights hereunder (except as provided in Section 7.8). For
purposes of this Section 5.1(d), the "Effective Date of the Termination" shall
mean the date on which a notice of termination is given or any later date
(within thirty (30) days after the giving of such notice) agreed to by the
Company, set forth in such notice of termination.
5.2 Termination Without Cause; Termination for Good Reason. The
Company may terminate the Executive's employment at any time without Cause, for
any reason or no reason and the Executive may terminate his employment with the
Company at any time for Good Reason. If the Company or the Executive terminates
the Executive's employment and such termination is not described in Section 4 or
Section 5.1, or the Company does not elect to renew the Term of this Agreement,
(i) the Executive shall have no right to receive any compensation or benefit
hereunder on and after the Effective Date of the Termination of
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employment other than Base Salary and other benefits, including payment for
accrued but unused vacation (but excluding any bonuses except as provided in
clause (ii) below) earned and accrued under this Agreement prior to the
Effective Date of the Termination of employment (and reimbursement under this
Agreement for expenses incurred prior to the Effective Date of the Termination
of employment); (ii) the Executive shall receive a cash payment equal to the
Severance Payment payable, at the election of the Executive, as follows: (X)
fifty percent (50%) of the aggregate amount due to the Executive shall be paid
to the Executive on the Effective Date of Termination and the remaining fifty
percent (50%) of the aggregate amount due to the Executive shall be paid pro
rata on a monthly basis to the Executive over a period of 18 months in equal pro
rata amounts in accordance with the Company's regular payment periods, or (Y) in
one lump sum cash payment on the Effective Date of Termination equal to 75% of
the Severance Payment amount; (iii) all equity awards held by the Executive
shall become fully vested and exercisable; and (iv) this Agreement shall
otherwise terminate upon such termination of employment and the Executive shall
have no further rights hereunder (except as provided in Section 7.8). The
"Severance Payment" means one and one half (1 1/2) times the sum of: (i) the
Executive's Base Salary in effect on the day of termination and (ii) the
Executive's Average Annual Bonus; provided, however, that in the event of that
the Company elects not to renew this Agreement at the end of the Term and
following any renewal of this Agreement and for all periods thereafter, the
"Severance Payment" shall mean the sum of: (i) the Executive's Base Salary in
effect on the day of termination and (ii) the Executive's Average Annual Bonus.
The Executive's "Average Annual Bonus" means the average bonus actually paid to
the Executive with respect to the prior two (2) calendar years or if no bonus
has been paid in either of the prior two (2) calendar years, Average Annual
Bonus shall mean seventy five percent (75%) of Executive's Base Salary. The
Severance Payment shall be increased to three (3) times the sum of: (i) the
Executive's Base Salary in effect on the day of termination and (ii) the
Executive's Average Annual Bonus if such termination occurs after a Change in
Control. For purposes of this Section 5.2, the "Effective Date of the
Termination" shall mean the date on which a notice of termination is given or
any later date (within thirty (30) days after the giving of such notice) agreed
to by the Company, set forth in such notice of termination.
5.3 Nature of Payments. Notwithstanding anything to the contrary
herein, all payments provided to the Executive pursuant to this Section 5 shall
be contingent upon the Executive's execution and delivery of a general release
and waiver, substantially in the form of Exhibit C attached hereto.
5.4 Treatment of Options and Restricted Stock. Upon termination of
the Executive's employment with the Company pursuant to Section 5.1 hereof,
Executive shall forfeit all rights and interests to any unvested Options,
unvested shares of Restricted Stock or other unvested equity awards, then held
by the Executive and (a) in the event of term a termination pursuant to Section
5.1(c) all vested Options shall terminate one (1) day following such termination
and (b) in the event of a termination pursuant to Section 5.1(d), all vested
Options shall terminate sixty (60) days following such termination.
6. Return of Documents; Rights to Products. All advertising, sales,
manufacturers' and other materials or articles or information, including,
without limitation, data processing reports, computer programs, software,
customer information and records, business records, price lists or information,
samples, or any other materials or data of any kind furnished to the
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Executive by the Company are and shall remain the sole property of the Company,
including in each case all copies thereof in any medium, including computer
tapes and other forms of information storage. If the Company requests the return
of such materials (whether or not containing confidential information) at any
time during or at or after the termination of the Executive's employment,
Executive shall promptly deliver such materials and all copies of such materials
to the Company.
7. Noncompetition; Nonsolicitation; Confidential Information, etc. The
Executive hereby acknowledges that, during and solely as a result of Executive's
employment by the Company, the Executive will have access to confidential
information and business and professional contacts. In consideration therefor,
the Executive hereby agrees to be bound by and acknowledges the reasonableness
of the following covenants, which are specifically relied upon by the Company in
entering into this Agreement. Executive acknowledges and agrees that each of the
individual provisions of this Section 7 constitutes a separate and distinct
obligation of the Executive to the Company, individually enforceable against the
Executive.
7.1 Covenant Not to Compete. During the Term (or any extension
thereof) and for a period of 18 months following the termination of the
Executive's employment by the Company, the Executive shall not, without the
consent of the Board, in any form or any manner, directly or indirectly, on the
Executive's own behalf or in combination with others, become engaged in (as an
individual, partner, stockholder, director, officer, principal, agent,
independent contractor, employee, trustee, lender of money or in any other
relation or capacity whatsoever, except as a holder of securities of a
corporation whose securities are publicly traded and which is subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended, and
then only to the extent of owning not more than two percent (2%) of the issued
and outstanding securities of such corporation or other entity) or provide
services to any business which renders services or sells products, or proposes
to render services or sell products, that compete with the Business of the
Company or any of its subsidiaries within the United States and any foreign
country in which the Company or any of its subsidiaries conducts any aspect of
the Business during the term of this Agreement. For purposes of this Agreement,
the term "Business" shall mean inland marine transportation, ancillary services
and marine vessel construction and repair in the United States and Venezuela.
7.2 Covenant Not to Solicit Employees. During the Term (or any
extension thereof) and for a period of 18 months following the termination of
the Executive's employment by the Company, the Executive agrees and covenants
that he shall not, for any reason, directly or indirectly, solicit or endeavor
to entice away from the Company and its subsidiaries and affiliates (whether for
the Executive's own benefit or on behalf of another person or entity), or
facilitate the solicitation or enticement of, any executive or management
employee of the Company and its subsidiaries and affiliates to work for the
Executive, any affiliate of the Executive or any competitor of the Company and
its subsidiaries and affiliates, nor shall the Executive otherwise attempt to
interfere (to the Company's detriment) in the relationship between the Company
or any of its subsidiaries or affiliates and any such employees; provided,
however, that a general solicitation that does not specifically identify the
Executive or covered employees shall not be deemed to violate this Section 7.2.
7.3 Covenant Not to Solicit Customers. During the Term (or any
extension
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thereof) and for a period of 18 months following the termination of the
Executive's employment by the Company, the Executive agrees and covenants that
he shall not, directly or indirectly, in any form or manner, contact, solicit,
or facilitate the contacting or solicitation of, any Customer of the Company and
its subsidiaries and affiliates for the purpose of competing with the Business.
For purposes of this Agreement, the term "Customer" shall mean and refer to each
person or entity that has a contract with or is actively being solicited by the
Company and its subsidiaries and affiliates with respect to the Business during
the period of Executive's employment hereunder.
7.4 Covenant of Confidentiality. At any time during the term of
Executive's employment with the Company (pursuant to this Agreement or
otherwise), and for a period of five (5) years after the termination of
Executive's employment with the Company for any reason, Executive shall not,
except in furtherance of the Business of the Company and its subsidiaries and
affiliates or otherwise with the prior authorization of the Company, in any form
or manner, directly or indirectly, divulge, disclose or communicate to any
person, entity, firm, corporation or any other third party (other than in the
course of Executive's employment hereunder), or utilize for Executive's personal
benefit or for the benefit of any competitor of the Company and its subsidiaries
and affiliates any Confidential Information. The Company and the Executive
acknowledge and agree that such Confidential Information is extremely valuable
to the Company and shall be deemed to be a "trade secret." In the event that any
part of the Confidential Information becomes generally known to the public
through legitimate origins (other than by the breach of this Agreement by the
Executive or by misappropriation), or is required to be disclosed by legal,
administrative or judicial process (provided that the Executive has provided to
the Company reasonable prior notice of such request and the Company has had a
reasonable opportunity, at its expense, to dispute, defend or limit such request
for the Confidential Information), that part of the Confidential Information
shall no longer be deemed Confidential Information for purposes of this
Agreement, but the Executive shall continue to be bound by the terms of this
Agreement as to all other Confidential Information.
7.5 Return of Property. Upon termination of this Agreement for any
reason, the Executive shall promptly deliver to the Company all correspondence,
drawings, blueprints, manuals, letters, notes, notebooks, reports, programs,
plans, proposals, financial documents or any other documents, including all
copies in any form or media, concerning the Company's Customers, marketing
strategies, products or processes which contain any Confidential Information.
7.6 Assignment of Inventions. The Executive shall assign to the
Company all rights, title and interests in any trade secrets and other products
or other inventions relating to the Company's business developed by him alone or
in conjunction with others at any time while employed by the Company.
7.7 Equitable Remedies. In the event that Executive breaches any of
the terms or conditions set forth in this Section 7, Executive stipulates that
such breach will result in immediate and irreparable harm to the business and
goodwill of the Company and that damages, if any, and remedies at law for such
breach would be inadequate. The Company shall therefore be entitled to apply for
and receive from any court of competent jurisdiction an injunction to restrain
any violation of this Agreement and such further relief as the court may deem
just and
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proper.
7.8 Continuing Obligation. Upon termination of this Agreement for
any reason during the Term of Employment, or upon expiration of this Agreement
pursuant to Section 1 hereof, the obligations, duties and liabilities of
Executive pursuant to Sections 3.4, 7.1, 7.2, 7.3, 7.4, 7.5 and 7.9 of this
Agreement are continuing, and for the periods set forth in such provisions
hereof are absolute and unconditional, and shall survive and remain in full
force and effect as provided in each such Section. Notwithstanding anything else
contained in this Agreement to the contrary, the parties hereto agree that in
the event Executive breaches any of the terms contained in Sections 7.1, 7.2,
7.3 and 7.4 of this Agreement, the obligation of the Company to pay any Base
Salary or bonus under this Agreement (or pursuant to any Severance Payment set
forth in Section 5 of this Agreement) shall terminate as of the date of such
breach by the Executive.
7.9 Post-Termination Violations of this Agreement. In the event, and
at the moment, that Executive violates any of his duties or obligations set
forth in (i) Sections 7.1, 7.2, 7.3 or 7.4 of this Agreement that continue after
any termination that occurs during the Term of employment for any reason, or
(ii) Sections 7.2, 7.3 or 7.4 of this Agreement that continue after any
termination that occurs after the expiration of the Term of employment, and
notwithstanding any other provision in this Agreement, the Stock Option
Agreement or the Restricted Stock Award Agreement to the contrary, (x) Executive
shall immediately forfeit any right to exercise any unexercised Options that
previously vested pursuant to the terms of this Agreement or the Stock Option
Agreement, (y) any unvested options, shares of restricted stock or other equity
awards (including any unvested Options or shares of Restricted Stock) will
immediately be cancelled and forfeited and (z) all Severance Payments shall
immediately cease and be forfeited.
8. Other Provisions.
8.1 Severability. The Executive acknowledges and agrees that the
Executive has had an opportunity to seek advice of counsel in connection with
this Agreement. If any phrase, clause or provision of this Agreement is declared
invalid or unenforceable by a court of competent jurisdiction, such phrase,
clause or provision shall be deemed severed from this Agreement, but will not
affect any other provisions of this Agreement, which shall otherwise remain in
full force and effect. If any restriction or limitation in this Agreement is
deemed to be unreasonable, onerous and unduly restrictive by a court of
competent jurisdiction, it shall not be stricken in its entirety and held
totally void and unenforceable, but shall remain effective to the maximum extent
permitted by such court.
8.2 Enforceability; Jurisdictions. The Company and the Executive
intend to and hereby confer jurisdiction to enforce the restrictive covenants
set forth in Section 7 upon the courts of any jurisdiction within the
geographical scope of the such restrictive covenants. If the courts of any one
or more of such jurisdictions hold such restrictive covenants wholly
unenforceable by reason of breadth of scope or otherwise it is the intention of
the Company and the Executive that such determination not bar or in any way
affect the Company's right, or the right of any of its affiliates, to the relief
provided above in the courts of any other jurisdiction within the geographical
scope of such restrictive covenants, as to breaches of such restrictive
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covenants in such other respective jurisdictions, such restrictive covenants as
they relate to each jurisdiction's being, for this purpose, severable, diverse
and independent covenants.
8.3 Attorneys' Fees. In the event of any legal proceeding relating
to this Agreement or any term or provision thereof, the losing party shall be
responsible to pay or reimburse the prevailing party for all reasonable
attorneys' fees incurred by the prevailing party in connection with such
proceeding.
8.4 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered (i) two
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, (ii) when received if it is sent by facsimile
communication during normal business hours on a business day or one business day
after it is sent by facsimile and received if sent other than during business
hours on a business day, (iii) one business day after it is sent via a reputable
overnight courier service, charges prepaid, or (iv) when received if it is
delivered by hand, in each case to the intended recipient as set forth below:
(i) If to the Company, to:
American Commercial Lines LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, Xxxxxxx 00000
Attention: Senior Vice President Law & Administration
Facsimile: (000) 000-0000
(ii) If to the Executive, to:
Xxxx Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxx Xxxxxxxxx, Xxxxxxx 00000
Xxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
Any such person may by notice given in accordance with this Section to the other
parties hereto designate another address or person for receipt by such person of
notices hereunder.
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8.5 Entire Agreement. This Agreement, together with the exhibits
hereto, contains the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements, written or oral, with
the Company or its subsidiaries (or any predecessor of either). The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. This Agreement may not be
modified or amended other than by an agreement in writing. Notwithstanding the
foregoing, nothing herein shall limit the application of any generally
applicable Company policy, practice, plan or the terms of any manual or handbook
applicable to the Company's employees generally.
8.6 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the parties or, in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege
nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other such
right, power or privilege.
8.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF INDIANA WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
8.8 Assignment. This Agreement, and the Executive's rights and
obligations hereunder, may not be assigned by the Executive; any purported
assignment by the Executive in violation hereof shall be null and void. In the
event of any sale, transfer or other disposition of all or substantially all of
the Company's assets or business, whether by merger, consolidation or otherwise,
the Company may assign this Agreement and its rights hereunder.
8.9 Withholding. The Company shall be entitled to withhold from any
payments or deemed payments any amount of withholding required by law. No other
taxes, fees, impositions, duties or other charges or offsets of any kind shall
be deducted or withheld from amounts payable hereunder, unless otherwise
required by law or with the written consent of the Executive.
8.10 No Duty to Mitigate. The Executive shall not be required to
mitigate damages or the amount of any payment provided for under this Agreement
by seeking other employment or otherwise, nor will any payments hereunder be
subject to offset in the event that the Executive does not mitigate.
8.11 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors, permitted
assigns, heirs, executors and legal representatives.
8.12 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one and
the same instrument. Each counterpart may consist of two copies hereof each
signed by one of the parties hereto.
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8.13 Existing Agreements. Executive hereby represents and warrants
that, in entering into this Agreement, he is not in violation of any contract or
agreement, whether written or oral, with any other person, firm, partnership,
company or other entity to which he is a party or by which he is bound and will
not violate or interfere with the rights of any other person, firm, partnership,
company or other entity. In the event that such a violation or interference does
occur, or is alleged to occur, notwithstanding the representation and warranty
made hereunder, the Executive shall indemnify the Company from and against any
and all manner of expenses and liabilities incurred by the Company or any of its
affiliates in connection with such violation or interference or alleged
violation or interference.
8.14 Headings. The headings in this Agreement are for reference only
and shall not affect the interpretation of this Agreement.
8.15 Certain Definitions. For purposes of this Agreement:
(a) an "affiliate" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person, and includes
subsidiaries. Notwithstanding the foregoing, the persons listed on Exhibit C, as
such Exhibit C is updated from time to time by the mutual agreement of the
parties, shall not be affiliates of the Company.
(b) A "business day" means the period from 9:00 am to 5:00 pm
on any weekday that is not a banking holiday in Indianapolis, Indiana.
(c) "Confidential Information" means, but is not limited to,
any technical or non-technical data, formulae, patterns, compilations, programs,
devices, methods, techniques, drawings, designs, processes, procedures,
improvements, models or manuals of Company and its subsidiaries and affiliates
or which are licensed by any of the Company and its subsidiaries and affiliates,
any financial data or lists of actual or potential customers or suppliers
(including contacts thereat) of the Company and its subsidiaries and affiliates,
and any information regarding the contracts, marketing and sales plans, which is
not generally known to the public through legitimate origins of the Company and
its subsidiaries and affiliates.
(d) A "subsidiary" of any person means another person, an
amount of the voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its board of
directors or other governing body (or, if there are no such voting interests or
no board of directors or other governing body, 50% or more of the equity
interests of which) is owned directly or indirectly by such first person.
(e) "Change in Control" shall mean the occurrence of any of
the following events, each of which shall be determined independently of the
others:
(i) any "Person" (as defined herein), other than a
holder of at least 10% of the outstanding voting power of the Company as of the
date of this Agreement, becomes a "beneficial owner" (as such term is used in
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of a majority of the stock of the Company entitled to vote
in the election of directors of the Company. For purposes of this
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definition, the term "Person" is used as such term is used Sections 13(d) and
14(d) of the Exchange Act;
(ii) the individuals who are "Continuing Directors" (as
hereinafter defined) of the Company cease to constitute a majority of the
members of the Board. For purposes of this definition, "Continuing Directors"
shall mean the members of the Board on the date of execution of this Agreement,
provided that any person becoming a member of the Board subsequent to such date
whose election or nomination for election was supported by at least a majority
of the directors who then comprised the Continuing Directors shall be considered
to be a Continuing Director;
(iii) the stockholders of the Company adopt and
consummate a plan of complete or substantial liquidation or an agreement
providing for the distribution of all or substantially all of the assets of the
Company;
(iv) the Company is a party to a merger, consolidation,
other form of business combination or a sale of all or substantially all of its
assets, with an unaffiliated third party, unless the business of the Company
following consummation of such merger, consolidation or other business
combination is continued following any such transaction by a resulting entity
(which may be, but need not be, the Company) and the stockholders of the Company
immediately prior to such transaction hold, directly or indirectly, at least a
majority of the voting power of the resulting entity; provided, however, that a
merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) or a merger, consolidation, other form of business
combination in which the Company or successor entity is controlled by Continuing
Directors shall not constitute a Change in Control; or
(v) there is a Change in Control of the Company of a
nature that is reported in response to item 5.01 of Current Report on Form 8-K
or any similar item, schedule or form under the Exchange Act, as in effect at
the time of the change, whether or not the Company, is then subject to such
reporting requirements;
provided, however, that for purposes of this Agreement a Change in Control shall
not be deemed to occur if the Person or Persons deemed to have acquired control
is or are a holder of at least 10% of the outstanding voting power of the
Company as of the date of this Agreement.
[The rest of this page is left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have signed their names as of
the day and year first above written.
AMERICAN COMMERCIAL LINES INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
EXECUTIVE
/s/ Xxxx X. Xxxxxx
---------------------------------
XXXX X. XXXXXX
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