Exhibit 10.22
Xx. Xxxxxx Xxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Dear Xxx:
This letter sets forth the mutual understandings and agreements between you and
American Commercial Lines, LLC ("ACL") on the terms and conditions upon which
you will continue your employment as Vice President, Vessel Management for
American Commercial Barge Line. It shall supersede any prior oral or written
understandings and agreements between you and ACL.
1. COMPENSATON- (a) Your current annual base salary will continue in
effect with the opportunity for adjustment pursuant to ACL's regular
salary adjustment program. (b) You will continue to be eligible for a
performance bonus from ACL, as determined by management and the Board
of Representatives and as amended periodically.
2. ASSIGNMENT- (a) You will devote your whole time, energy, and attention
to the performance of the duties of Vice-President, Vessel Management
or successor assignments made by ACL.
3. CONFIDENTIAL INFORMATION- (a) You understand that you will have access
to sensitive and proprietary business information of ACL, including,
but not limited to, financial information, marketing and sales
strategies, business plans, prices, rates, price and rate calculations,
costs, customer information, operational information, feasibility
studies, detailed business plans, plans relating to expansion or
acquisitions, business projections, and other compilations, memoranda,
analyses and documents which relate to ACL's business, all of which ACL
maintains in strict confidence and does not divulge to third parties in
the ordinary course of its business (such information, whether or not
specifically enumerated here, is hereinafter referred to as
("Confidential Information.").
(b) You recognize and acknowledge the sensitivity and competitive value
of the Confidential Information, and the damage that could result to
ACL from the disclosure thereof to third parties. Accordingly, you
agree that all Confidential Information provided by ACL shall be
received rn confidence and that a confidential relationship shall arise
between the parties by virtue of such disclosure. You hereby agree that
you shall maintain all Confidential Information in strict confidence
and not disclose the Confidential Information, in any manner
whatsoever, in whole or in part, without limitation, to any third
party. You shall maintain the confidentiality of the Confidential
Information in this manner at all times during the term of this
Agreement, and for a period of five (5) years after the expiration or
other termination of this Agreement, for any reason whatsoever.
4. NON-COMPETE- (a) In consideration of the additional benefits granted to
you by ACL pursuant to the terms of this Agreement, you specifically
agree that, following any expiration or other termination of this
Agreement, you will not accept any employment, directly or indirectly,
whether as an employee, officer, director, consultant or independent
contractor, with any direct or indirect competitor of ACL and its
parents, affiliates or subsidiaries, operating in any of the
geographical areas (floating vessels are not considered geographic
areas) in which ACL and its parents, affiliates or subsidiaries
conducts operations at the time of such expiration or other termination
of this Agreement for a period of one year following such expiration or
other termination of this Agreement. (b) You agree that the time,
scope, geographic area and other provisions of the agreement not to
compete set forth in this Agreement have been specifically negotiated
by the parties, and that the time, scope, geographic area and other
provisions are reasonable and acceptable to you.
5. IERMINATION- (a) If ACL terminates your employment for any reason other
than for "Cause," as defined in this paragraph, you shall be entitled
to receive the Severance Benefit described in this Agreement; provided
that the payment of any Severance Benefit shall be expressly subject to
all of the terms and conditions of this Agreement, including but not
limited to the Confidential Information provisions set forth herein and
the Non-Competition provisions set forth in paragraph 4. As a further
condition of receiving a Severance Benefit, you will be required to
execute a broad, general release, in a form provided by ACL that
absolutely extinguishes all past or present claims against ACL and its
parents, affiliates, subsidiaries, officers, directors, and employees,
including any claims arising out of employment, this Agreement and your
separation from employment. No Severance Benefit will be paid unless or
until you fully execute the release in the form provided by ACL.
(b) As used anywhere in this Agreement, "Cause" means the willful
engaging by you in any illegal conduct, or misconduct which is
injurious to ACL or ACL's commercial or business interests. For
purposes of this Agreement, no act or failure to act shall be
considered uwillful", unless it is done, or omitted to be done, by you
in bad faith or without reasonable belief that the action or omission
was in the best interests of ACL, its parent or affiliated companies.
(c) If ACL terminates your employment hereunder for Cause, then you
shall not be entitled to receive any Severance Benefit. (d) If you
terminate your employment hereunder for any reason other than for the
reasons in paragraph 7 (a) or 7 (b), you shall not be entitled to
receive any Severance Benefit.
6. BREACH OF AGREEMENT- (a) If you violate the terms of this Agreement
by either (i) divulging Confidential Information; or (ii) accepting
employment with a direct or indirect competitor of ACL and its parents,
affiliates or subsidiaries, then
you shall forfeit all right to receive a Severance Benefit hereunder.
In the event that you have already received a Severance Benefit at the
time an aforementioned breach of this Agreement occurs, then you shall
immediately, upon receipt of written demand from ACL, repay to ACL the
entire Severance Benefit paid to you or on your behalf to any other
party.
(b) In addition to the remedies set forth above, you understand and
agree the maintenance of Confidential Information, and the agreement
Not to Compete are necessary to protect ACL's business, and that any
violation of this Agreement would result in irreparable harm to ACL. In
the event of such a breach, ACL shall be entitled to injunctive relief,
in addition to any other legal or equitable remedies available to ACL
at law.
7. SEVERANCE BENEFIT- (a) If, during the period April, 2000 through
April 30, 2002, you do not receive bonuses cumulatively in gross
amounts equaling $75,000.00, you may submit your resignation by May 15,
2002, effective as of August 31, 2002, and receive the Severance
Benefit in accordance with this paragraph; provided you execute a
General Release. In the event you do not submit your resignation by May
15, 2002, as a result of ACL's failure to pay said bonuses, or if you
receive bonuses of at least $75000 as of April 30, 20002, you shall not
be eligible for the Severance Benefit if you resign, except as
described in paragraph 7 (b) below. (b) If during the period April,
2000 through April 30, 2003, you do not receive bonuses cumulatively in
gross amounts equaling $150,000.00, you may submit your resignation by
May 15, 2003, effective as of August 31, 2003, and receive the
Severance Benefit in accordance with this paragraph 7; provided you
execute a General Release. (c) The Severance Benefit referred to in
this Agreement is defined as $134, 785.00. (d) The Severance Benefit
may be taken as a lump sum or as equal monthly payments for one year by
dividing the Severance Benefit ($134,785.00) by twelve (12). (e) Any
such payments (lump or monthly) shall be less al applicable federal,
state, local and foreign taxes. The election as to payment must be
stated in the General Release and may not be subsequently changed. (f)
If you elect to receive the Severance Benefit in monthly payments, you
shall also be entitled to continue participating in the medical, dental
and life insurance plans which are in effect for active employees
during the period of the monthly payments. You will be required to make
the same contributions to these plans as active employees and ACL
reserves the right to amend or terminate any of these plans during the
period you are participating in them. If you elect payment as a lump
sum, you will not be eligible to continue participation in these plans.
(g) If you die having begun receipt of Severance Benefits, but prior to
receiving all amounts due from the Severance Benefit, any remaining
Severance Benefits due and owing will be paid in a lump-sum to your
estate or designated beneficiary. .
8. MODIFICATION- Any modification of this Agreement or additional
obligation assumed by either party in connection with this Agreement
shall be binding only if evidenced in writing signed by each party or
any authorized representative of each party.
9. SURVIVAL- All rights and obligations of the parties created by this
Employment Agreement, including, but not limited tOt your agreement to
maintain Confidential Information, your agreement not to accept
employment with a direct or indirect competitor of ACL, shall survive
the expiration or other termination of this Agreement.
Yours truly,
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
ACCEPTED AND AGREED:
/S/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Aug 11, 2000
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Date
