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EXHIBIT 10.6
CHRISTOPHER A. BLACK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is dated as of February
22, 2005 (the "Effective Date"), by and between American Commercial Lines Inc.,
a Delaware corporation (the "COMPANY"), and Christopher A. Black (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 Senior Vice
President, Chief Financial Officer 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 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 one (1) other for-profit entity and
three (3) other not-for-profit or charitable entities and may pursue passive
investments; provided that
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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 $275,000 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 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 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,
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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
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.
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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.
3.9 Relocation Expenses. In accordance with the Company's
Relocation Policy, a copy of which has been provided to 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. As an exception to the Company's Relocation
Policy, the Company will allow an extension of time for temporary housing
through June 4, 2005 with an additional 30 days if needed.
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.
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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
(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 (iv) 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
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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
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 his employment






