EXHIBIT 10.7
XXXX X. XXXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is dated as of February
18, 2005 (the "Effective Date"), by and between American Commercial Lines Inc.,
a Delaware corporation (the "COMPANY"), and Xxxx X. Xxxxxxx (the "EXECUTIVE").
WHEREAS, the Company wishes to continue to employ the Executive, and
the Executive wishes to continue such employment by the Company, on the terms
set forth below.
WHEREAS, the Executive acknowledges and understands that, during the
course of her employment by the Company, the Executive has 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 Senior Vice
President, Law and Administration, of the Company. The Executive shall
faithfully perform for the Company the duties of said office and shall perform
such other duties of an executive, managerial or administrative nature
consistent with those of such office as shall be specified and designated from
time to time by the Chief Executive Officer. The Executive agrees to devote her
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 her 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 one (1) other for-profit entity, and
three (3) other not-for-profit or charitable entities and may pursue passive
investments; provided that such
1
activities do not unreasonably interfere with her 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 $250,000 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 65% of her 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 14,018
shares of common stock (the "Restricted Stock"), representing approximately one
quarter per cent (0.25%) 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
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,
2
2005, the Company shall grant to the Executive options to purchase 14,018 shares
of Common Stock (the "Options"), representing approximately one quarter per cent
(0.25%) 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 the periods set forth in the Stock Option Agreement, 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.
3.6 Vacation. During the Term, the Executive shall be entitled
to vacation of not less than four (4) weeks per year.
3
3.7 Disability 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
$15,000 per month in the case of a covered disability.
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.
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 her
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:
4
(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
(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 her 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 (iv) below, (1) Executive delivers
written notice to the Company of her 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 her position indicated in Section 2 or the
assignment to Executive of duties
5
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 material terms of this Agreement; or
(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.
(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 her employment
without Good Reason. If the Executive terminates her 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, (i) the Executive shall have no right
6
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 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) one hundred percent (100%) of the aggregate amount due to the
Executive shall be paid pro rata on a monthly basis to the Executive over a
period of 12 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); provided, however, that in the event 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 Executive shall
not be entitled to a Severance Payment. The "Severance Payment" means 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 sixty-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 Executive
by the Company are and shall remain the sole property of the Company, including
in
7
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), 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 thereof) and for a period of 18 months following the termination of
the Executive's employment
8
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 hereby assigns 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 her
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
9
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, 7.2, 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 her duties or
obligations set forth in (i) Sections 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 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
10
within the geographical scope of such restrictive covenants, as to breaches of
such restrictive 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 X. Xxxxxxx
0000 X'Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
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.
11
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
12
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.
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
13
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 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.]
14
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. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
EXECUTIVE
/s/ Xxxx X. Xxxxxxx
---------------------------------------
Xxxx X. Xxxxxxx
15
