RELEASE AND WAIVER OF EMPLOYMENT
AND
TERMINATION OF EMPLOYMENT CLAIMS
This Release and
Waiver of Employment and Termination of Employment Claims
(hereinafter the “Release”) is made and entered into by
Martin K. Pepper (hereinafter the “Employee”),
in favor of American Commercial Barge Line LLC , a Delaware
limited liability company with a business address of 1701 East
Market Street, Jeffersonville, Indiana 47131 and all parent,
related, affiliated and subsidiary companies, and all their
predecessors, successors, employees, officers, directors, interest
holders, representatives, assigns, agents, insurers and employee
benefit programs and the trustees, administrators, fiduciaries and
insurers of such benefit programs (collectively, the
“Company”).
1. The Company
has advised the Employee that the Employee’s active
employment with the Company ends on November 16,
2005.
2. Employee has
certain information required by the Older Workers’ Benefit
Protection Act, including a list by job title and age of the
employees eligible for severance and employees who are being
retained by Company. Employee has also received a copy of the
Company’s Policies and Procedures regarding
severance.
3. Employee has
reviewed this Release and these materials and desires to waive
certain claims or potential claims Employee may have against the
Company and certain other entities in order to receive benefits
under the terms of the Company’s Policies and
Procedures.
4. The Company
and the Employee desire to fully and finally settle all issues and
disputes between them, including but not limited to, the
Company’s decision to terminate Employee’s employment
with the Company.
NOW
THEREFORE , in exchange for the good and valuable consideration
provided herein, the receipt and sufficiency of which is hereby
acknowledged, Employee and Company hereby agree as
follows:
1.
Conclusion of Employment
(a) Employee’s
active employment with the Company will end on November 16,
2005 (hereinafter the “Separation Date”). The
Employee’s service as an officer and/or a member of the Board
of Managers or Board of Directors of any entity affiliated with the
Company will also end on November 16, 2005. The Employee promises
that within seven days after the Separation Date, the Employee
returned or will return to the Company all files, records, credit
cards, keys, computers or any other Company property which is in
the Employee’s possession or control.
Release and Waiver of Employment and
Termination of Employment Claims
Page 1 of 7
(b) The
Employee covenants and agrees not to disparage the Company in any
manner and not to disclose any confidential information, trade
secrets, proprietary information or other business information
which is not disseminated publicly which the Employee learned while
employed by the Company. The Employee further covenants and agrees,
for a period of eighteen (18) months not to solicit any
employees of the Company to cease their employment with the
Company, nor to offer a job to or hire any employee from the
Company. The Employee covenants and agrees not to solicit or help
anyone to solicit any customers of the Company to cease dealing
with the Company. Additionally, the Employee covenants and agrees
not to interfere in or with any pending or contemplated business
transaction, arrangement, contract or other agreement with any
vendor, customer, business partner or associate of the Company and
about which the Employee had knowledge, whether direct or indirect,
or responsibility while employed.
(c) Employee
understands and acknowledges that this Release and the
corresponding severance benefits are being offered under the terms
of a Letter dated November 16, 2005, which offer remains open
for 45 days as explained herein.
(a) The
Company agrees to pay the Employee, because of the Employee’s
separation from employment, an amount equal to fifty-two
(52) week(s) of Employee’s current base salary
(hereinafter “Severance Pay”). Such Severance Pay shall
issued in bi-monthly equal installments on the same dates as the
Company’s general, salaried payroll payments are made, once
the Release has become irrevocable as explained below.
(b) As
additional consideration, specifically for the release of age
discrimination claims potentially arising under the Age
Discrimination in Employment Act, Company will pay Employee an
amount equal to one week of Employee’s current base salary
(this amount is referred to herein as “Additional
Consideration”). The Additional Consideration is in addition
to Separation Pay payable to Employee pursuant to Section 2(a) of
this Release and any other benefits being provided under the terms
of this Release (Severance Pay and Additional Consideration are
sometimes referred to collectively as “Separation
Pay”). The Additional Consideration shall be remitted in the
first installment payment of Employee’s Separation
Pay.
(c) In
consideration of the non-competition, no solicitation and
non-interference provisions contained herein, the Company also
agrees to pay the Employee a sum equal to the 100% of the 2005
Annual Incentive Plan bonus amount which would have been payable to
Employee in the first quarter 2006 (the “bonus
payment”). The bonus payment will be due and payable as and
when approved by the Compensation Committee of the Board of
Directors of the Company in the first quarter of 2006.
(d) Payment
of benefits conditioned on the signature of this Release by the
Employee will commence with the next regular payroll date after the
date that this Release becomes irrevocable under Section 5 of
this Release.
Release and Waiver of Employment and
Termination of Employment Claims
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(e) Employee
understands and acknowledges that the Company will deduct from
Separation Pay withholding taxes and other deductions that the
Company is required by law to deduct from payments to
employees.
(f) Employee
understands and acknowledges that the Severance Pay and other
consideration given by the Company to the Employee in exchange for
this Release, is more than the Company is required to pay under its
normal policies and procedures.
(g) Employee
further understands and acknowledges that the Additional
Consideration given by the Company in exchange for the release of
age discrimination claims potentially arising under the Age
Discrimination in Employment Act, is in addition to what the
Company is required to pay under the terms of its Policies and
Procedures.
(h) Employee
further understands and acknowledges that the bonus payment given
by the Company in exchange for the non-competition, no solicitation
and non-interference provisions contained herein, is more than the
Company is required to pay under its normal policies and procedures
and is in addition to what the Company is required to pay under the
terms of its Policies and Procedures.
After the
Separation Date, Employee may elect to continue to participate in
the Company’s group medical plan under the continuation
coverage rules of the Consolidated Omnibus Budget Reconciliation
Act (“COBRA”). During the first two months after the
Separation Date, if electing COBRA coverage, Employee will be
responsible for paying the standard employee portion of the monthly
premium payment, and the Company will pay its normal contribution
for otherwise similarly-situated current employees. Thereafter,
Employee, if electing COBRA coverage, will be responsible for
paying the full monthly COBRA premium. Employee will receive a
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