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EXHIBIT 10.3
TERMINATION BENEFITS AGREEMENT
This Termination Benefits Agreement ("Agreement") is made
and
entered into by and between American Commercial Lines LLC (the
"Company") and
its affiliates American Commercial Barge Line LLC ("ACBL"),
American Commercial
Lines International LLC ("ACLI"), and Jeffboat LLC ("Jeffboat"),
and W. Norb
Whitlock ("Employee").
RECITALS
A. The Company, ACBL, ACLI and Jeffboat are seeking to
reorganize
under chapter 11 of the United States Bankruptcy Code, and the
chapter 11 cases
with respect to the Company and certain of its direct and
indirect subsidiaries,
including ACBL, ACLI and Jeffboat, are pending in the United
States Bankruptcy
Court for the Southern District of Indiana, New Albany Division
(the "Court"),
and administratively consolidated as Case No. 03-90305-BHL-11
(the "Chapter 11
Case"). ACBL, ACLI and Jeffboat will be referred to hereafter
collectively as
the "Affiliates" and each of them individually as an
"Affiliate". All direct and
indirect parents of the Company or an Affiliate and/or all
subsidiaries, wholly
or partially owned by the Company or an Affiliate, are referred
to as
"affiliates" and each of such entities individually is referred
to as an
"affiliate".
B. The Company and the Affiliates believe that Employee will
continue to make valuable contributions to the productivity of
the Company and
one or more of the Affiliates and to maintaining and maximizing
the value of the
Company and one or more of the Affiliates.
C. The Company and the Affiliates desire to encourage Employee
to
continue to make such contributions and not to seek or accept
employment
elsewhere.
D. Prior to January 31, 2003 (the "Petition Date"), Employee
became
a participant in the American Commercial Lines LLC Salary
Continuation Plan (the
"SCP"), a non-qualified retirement benefit plan. Such
participation was
memorialized in a Salary Continuation Plan Agreement dated July
1, 1998 (the
"SCP Agreement") between the Company and Employee. As a
participant in the SCP,
upon the occurrence of certain events, Employee is entitled to
receive a benefit
payment (the "SCP Benefit") according to the terms and
conditions of the SCP and
the SCP Agreement. In the Chapter 11 Case, Debtors sought and
obtained the
Court's approval to pay sums as they became due under the
SCP.
E. The Company and the Affiliates desire to make a SCP
Benefit
payment to Employee under the SCP upon the occurrence of certain
conditions set
forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the
mutual
covenants herein contained and the mutual benefits herein
provided, the Company
and the Affiliates, jointly and severally, and Employee hereby
agree as follows:
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1. This Agreement shall not become effective unless the
following
conditions are satisfied: (a) the Company's Board of Managers
adopts a
resolution authorizing the Company and the Affiliates to enter
into this
Agreement; and (b) the Court in the Chapter 11 Case enters an
order authorizing
the Company and the Affiliates to enter into this Agreement.
Provided the
foregoing conditions are satisfied, this Agreement shall be
effective as of the
date on which the last condition above is satisfied (the
"Effective Date").
2. This Agreement shall be valid from the Effective Date
through
December 31, 2006, unless this Agreement is terminated earlier
by virtue of the
severance of Employee's employment for any reason prior to such
date.
3. For purposes of this Agreement, a "Change in Control" of
the
Company or an Affiliate means and shall be deemed to have
occurred upon the
occurrence of any one or more of the following:
(a) consummation of a sale or other disposition of all or
substantially all of the assets of the Company or an Affiliate,
other than
such a sale or other disposition to the Company, one of the
Affiliates, an
affiliate or one or more Existing Creditors (as defined below)
of the
Company or an Affiliate;
(b) acquisition by any individual, entity or group of
beneficial
ownership of more than fifty percent (50%) of the outstanding
membership
or equity interests of the Company or an Affiliate, except such
an
acquisition by the Company, one of the Affiliates, an affiliate
or one or
more Existing Creditors of the Company or an Affiliate; or
(c) consummation of a plan of merger or consolidation involving
the
Company or an Affiliate pursuant to which after the merger
or
consolidation more than fifty percent (50%) of the equity
interests of the
surviving entity is owned or controlled by a person or entity
other than
the Company, one of the Affiliates, an affiliate existing prior
to such
merger or consolidation or one or more Existing Creditors of the
Company
or an Affiliate.
For purposes of (a) through (c) above, "Existing Creditors"
means
persons who (1) hold one or more claims (as defined in 11 U.S.C.
Section 101(5))
against the Company or one or more of the Affiliates as of the
Effective Date,
and (2) have not, prior to consummation of a transaction that
would constitute a
"Change in Control," executed a confidentiality agreement with
the Company to
perform due diligence in connection with the marketing effort
commenced on
behalf of the Company and the Affiliates by American Marine
Advisors, Inc.
Notwithstanding these occurrences, a sale, gift or other
transfer of
equity interests in the Debtors that does not provide a material
benefit to the
estates in the Chapter 11 Case will not be deemed a change in
control.
4. The Company shall provide Employee with the SCP Benefit as
set
forth in Section 8 of this Agreement upon any termination of
Employee's
employment by the Company or an Affiliate directly and
demonstrably resulting
from a Change in Control, provided said
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termination occurs no later than nine (9) months following a
Change in Control.
Notwithstanding the forgoing, the SCP Benefit shall not be paid
if Employee's
employment is terminated for "Cause." For purposes of this
Agreement, "Cause"
means the occurrence of any one or more of the following
events:
(i) Employee's gross or habitual neglect of Employee's
employment duties and
responsibilities; (ii) Employee's conviction for a felony or of
any crime
involving moral turpitude; (iii) Employee's engaging in any
illegal conduct or
willful misconduct in the performance of Employee's employment
duties for the
Company, the Affiliates or the affiliates; (iv) Employee's
engaging in any
fraudulent or dishonest conduct in Employee's dealings with, or
on behalf of,
the Company, the Affiliates or the affiliates; (v) Employee's
breach of
Employee's obligations under this Agreement or a material breach
of any
employment agreement with the Company, the Affiliates or the
affiliates; (vi)
Employee's gross negligence in the performance of Employee's
employment duties
for the Company, the Affiliates or the affiliates; (vii)
Employee's "misconduct"
as that term is defined for purposes of unemployment
compensation entitlement
under Indiana law.
5. The Company shall also provide Employee with the SCP Benefit
as
set forth in Section 8 of this Agreement upon any voluntary
resignation by
Employee between the Effective Date and nine (9) months
immediately after a
Change in Control if, directly and demonstrably resulting from a
Change in
Control, any one of the following events occurs during that time
period:
(a) without Employee's written consent, the reassignment of
Employee
to any position or duties which constitute a substantial
reduction of
Employee's duties or status with the Company or an Affiliate
immediately
prior to the Change in Control and which does not represent a
promotion
from Employee's position, duties or responsibilities immediately
prior to
the Change in Control other than for Cause;
(b) without Employee's written consent, a reduction by the
Company
or an Affiliate in Employee's base salary from the level of such
base
salary immediately prior to the Change in Control other than for
Cause;
(c) without Employee's written consent, a material adverse
change in
pension and welfare benefits other than for Cause; provided,
however, that
a material adverse change in welfare benefits provided to
retirees shall
not trigger any potential obligations of the Company under this
Section 5;
or
(d) without Employee's written consent, the Company's or an
Affiliate's requiring Employee to be based anywhere other than
the
Jeffersonville, Indiana/Louisville, Kentucky metropolitan area
(defined as
a 40 mile radius area from the Company's current headquarters at
1701 East
Market Street, Jeffersonville, Indiana) other than for Cause,
except for
required travel on the business of the Company or an Affiliate
in
accordance with the Company's past management practices.
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6. The Company shall also provide Employee with the SCP Benefit
as
set forth in Section 8 of this Agreement in the event Employee
remains employed
through December 31, 2006.
7. In the event Employee resigns or retires prior to December
31,
2006 for any reason other than those set forth in Sections 4 or
5 of this
Agreement, Employee shall forfeit the SCP Benefit set forth in
Section 8 of this
Agreement.
8. Subject to the conditions and exceptions set forth in
Sections 4,
5, 6 and 7 hereof, the Employee shall receive the SCP Benefit in
a lump sum
within fourteen (14) days after (x) the date of the qualifying
termination or
resignation, or (y) the date of Employee's retirement, if
Employee is employed
as of December 31, 2006; provided, however, that the payment
described in
subsection (y) of this Section 8 shall be fully earned and
vested on December
31, 2006. The value of the SCP Benefit shall be reduced by the
full amount that
such value, when added to all other payments or benefits of any
kind to the
Employee constitutes an "excess parachute payment" within the
meaning of Section
280G of the Internal Revenue Code of 1986, as amended. Employee
acknowledges and
agrees that satisfaction of the benefit offered in this Section
8 shall be
deemed to constitute a full settlement and discharge of any and
all obligations
of the Company to Employee arising out of Employee's employment
with the Company
and the termination thereof, except for any vested rights
Employee may then have
under any insurance, pension, supplemental pension, thrift,
employee stock
ownership, or stock option plans sponsored or made available by
the Company.
Employee further acknowledges and agrees that as a condition to
receiving any
benefit under this Section 8, Employee will execute and deliver
to the Company a
Release Agreement in form and substance reasonably satisfactory
to the Company
pursuant to which Employee releases and waives any and all
claims against the
Company, the Affili
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