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EXHIBIT 10.9
KARL D. KINTZELE
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is dated as of
March
22, 2005 (the "Effective Date"), by and between American Commercial
Lines Inc.,
a Delaware corporation (the "Company"), and Karl D. Kintzele (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 the 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 Vice President
Internal Audit 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 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. The 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, the 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
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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 $200,000 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 the
Executive's
performance at least annually during each year of the Term and
cause the Company
to award the Executive a cash bonus with a target of 55% of his
Base Salary
which the Compensation Committee shall reasonably determine as
fairly
compensating and rewarding the Executive for services rendered to
the Company
and/or as an incentive for continued service to the Company. The
amount of the
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 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
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 form attached hereto as Exhibit A. 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 period following termination that is specified 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 the Executive
and as
determined by the Compensation Committee. The 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
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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, to the extent applicable and in the event that
pursuant to the
terms or requirements of the Sarbanes-Oxley 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.
3.7 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 the Executive in connection with the performance of the
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. In accordance with the Company's
Relocation
Policy, a copy of which has been provided to the Executive, the
Company shall
reimburse the Executive for the customary and reasonable relocation
expenses
that he and his family incur in moving their residence to the
Jeffersonville,
Indiana area.
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
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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
(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
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(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 the 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
the
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) the 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 the Executive's annual rate of Base
Salary;
(ii) any removal by the Company of the Executive from
his position indicated in Section 2 or the assignment to the
Executive of duties and responsibilities materially
inconsistent and adverse with the duties indicated in Section
2, except in connection with termination of the 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;
(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.
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(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 th
