Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Annual Report 155 891K
2: EX-3.2 Amended and Restated Bylaws 13 52K
3: EX-4.18 Credit Agreement 164 671K
4: EX-4.19 Credit Agreement 175 682K
5: EX-4.20 Indenture 129 582K
6: EX-4.21 Indenture 89 410K
7: EX-4.24 Pledge Agreement 25 93K
8: EX-4.25 Intercreditor Agreement 68 199K
9: EX-4.26 Intercreditor Agreement 82 189K
10: EX-4.27 Security Agreement 56 224K
11: EX-4.28 Security Agreement 50 193K
12: EX-4.29 Pledge Agreement 27 94K
13: EX-4.30 Security and Pledge Agreement 20 67K
14: EX-4.31 Revolving Credit and Guaranty Agreement 85 326K
15: EX-4.32 First Amendment to Revolving Credit Agreement 6 23K
16: EX-4.33 Second Amendment to Revolving Credit and Guaranty 15 48K
17: EX-4.34 Third Amendment to Revolving Credit and Guaranty 6 20K
18: EX-4.35 Fourth Amendment to Revolving Credit and Guaranty 6 23K
19: EX-4.36 First Preferred Fleet Mortgage 42 141K
20: EX-4.37 First Preferred Fleet Mortgage 42 141K
21: EX-4.38 First Preferred Fleet Mortgage 42 141K
22: EX-10.14 Separation and Termination Agreement 12 56K
23: EX-10.15 Separation and Termination Agreement 4 23K
24: EX-10.17 Release and Waiver of Employment 9 41K
25: EX-10.20 Engagement Letter 7 47K
26: EX-10.25 Tax Sharing Agreement 14 50K
27: EX-10.26 Corporate Services Reimbursement Agreement 6 31K
28: EX-10.28 Credit Agreement 157 576K
29: EX-10.29 Credit Agreement 132 576K
30: EX-10.30 Management Services and Reimbursement Agreement 24 76K
31: EX-23.1 Consent of Independent Accountants 1 11K
32: EX-31.1 Certificate of CEO 2± 15K
33: EX-31.2 Certificate of CFO 2± 15K
34: EX-32.1 Certificate of CEO 1 12K
35: EX-32.2 Certificate of CFO 1 12K
EX-10.14 — Separation and Termination Agreement
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Exhibit 10.14
SEPARATION AGREEMENT
This Separation Agreement (hereinafter the "Agreement") is made and
entered into this 12th day of August, 2003 by and between MICHAEL C. HAGAN
(hereinafter "Hagan"), and AMERICAN COMMERCIAL LINES LLC, a Delaware limited
liability company with a business address of 1701 East Market Place,
Jeffersonville, Indiana 47130, as debtor and debtor in possession, and all of
its parent, related, affiliated and subsidiary companies, and all their
predecessors, successors, employees, officers, directors, board of managers,
members, interest holders, representatives, assigns, agents, insurers and
employee benefit programs, and the trustees, administrators, fiduciaries and
insurers of such employee benefit programs (collectively, the "the Company").
RECITALS
1. As of the date hereof, Hagan is employed by the Company as President
and Chief Executive Officer and also serves as a member of the Board of Managers
of the Company.
2. Hagan has announced his intention to retire from the Company. Hagan
and the Company have agreed that Hagan's retirement date will be October 31,
2003, unless the parties mutually agree to an earlier date.
3. Hagan and the Company wish to resolve all outstanding matters
between them in a mutually acceptable way.
4. The Company has offered to provide benefits to Hagan in exchange for
Hagan's execution of this Agreement, the Releases contained herein and the
Consulting Agreement defined below.
5. Hagan desires to waive certain claims or potential claims Hagan may
have or could claim to have against the Company in order to receive these
benefits.
6. Hagan and the Company wish to enter into a consulting arrangement
pursuant to a consulting agreement (the "Consulting Agreement") to be executed
contemporaneous herewith for certain services of Hagan following his retirement.
NOW THEREFORE, in exchange for the good and valuable consideration
provided herein, the receipt and sufficiency of which is hereby acknowledged,
Hagan and the Company hereby agree as follows:
(1) CONCLUSION OF EMPLOYMENT
Hagan's active engagement as an employee of the Company will end on
October 31, 2003, or such earlier date as the parties may mutually agree
(hereinafter the "Retirement Date"). Hagan promises that on or before the
Retirement Date, he will return all files, records, credit cards, keys,
identification, computers, computer records, cell phones, pagers, or other
Company property which is in Hagan's possession or
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control, except for such items as Hagan may be instructed to retain until the
conclusion of the Consulting Period as defined below. In the event that Hagan
retains or receives the Company property during the Consulting Period, Hagan
covenants to return all such property on or before the conclusion of the
Consulting Period.
(2) NON-DISPARAGEMENT, NON-SOLICITATION, NON-COMPETITION, CONSULTING AND
PUBLIC DISCLOSURE
(a) Non-Disparagement and Non-Solicitation by Hagan. Beginning on the
date hereof, Hagan agrees and acknowledges that he will not:
(i) disparage the Company in any manner;
(ii) disclose any confidential information, proprietary
information, trade secrets, or other information which is not
disseminated publicly (hereinafter collectively "Confidential
Information") which Hagan learned while employed by the Company;
(iii) through the end of the Non-Compete Period (as defined below)
solicit or help anyone solicit any employees of the Company to cease
employment with the Company; or
(iv) through the end of the Non-Compete Period (as defined below)
solicit or help anyone to solicit any customers or vendors of the
Company to cease dealing with the Company.
(b) Non-Disparagement by the Company. Beginning on the date hereof, the
Company agrees and acknowledges that it shall not disparage Hagan in manner, and
shall not directly or indirectly, publicly or privately, make, publish or
solicit or encourage others to make, publish or solicit any disparaging
statements, comments, announcements or remarks concerning Hagan.
(c) Non-Competition by Hagan. From the Retirement Date through June 30,
2004 (the "Non-compete Period"), Hagan shall not accept employment with or
otherwise work or act for or on behalf of any person or entity engaged in the
transportation of cargo by barge on the Inland Waterway System of the United
States in competition with American Commercial Barge Line LLC
(3) COMPENSATION AND BENEFITS
(a) Base Salary. From the date hereof, through and including the
Retirement Date, the Company shall continue to pay Hagan his Base Salary,
pursuant to the terms of the employment agreement between Hagan and the Company
dated as of May 29, 2002 (the "Hagan Employment Agreement"), including all
earned or accrued vacation pay.
(b) Compensation. In consideration of the Claims to be released by
Hagan, the agreements of Hagan set forth herein (including, but not limited to
the Non-Competition
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Agreement, and the Consulting Services to be provided by Hagan, as set forth
below, the Company shall pay to Hagan: (i) an initial payment (the "Initial
Payment") of $275,000.00 in cash, within three (3) business days after the
Release (as defined below) becomes irrevocable; and (ii) a consulting fee (the
"Consulting Fee"), of $25,000 per month, payable to Hagan (or to his estate if
he should die during the Consulting Period) in advance on or before the first
business day of each month. Pursuant to Section 16, hereof, the Company shall
use its best efforts to ensure that the Initial Payment and the Consulting Fees
are granted administrative priority status pursuant to Section 503(b) of the
Bankruptcy Code.
(c) Welfare Plans and Benefits Programs. Beginning on the commencement
date of the Consulting Period, Hagan shall continue to participate in the
Company's group medical and dental insurance plans for two (2) years, at a cost
to Hagan that is no greater than the cost of such benefit programs to active
employees. During this period, if Hagan becomes eligible to receive medical or
dental benefits from any benefit plan (a "Primary Coverage Plan") maintained by
any other person, then the benefits offered by the Company's plans shall become
secondary to the benefits offered under the Primary Coverage Plan. Following the
expiration of these benefits, Hagan shall have the right to any continued
coverage required by federal law under the Consolidated Omnibus Budget
Reconciliation Act ("COBRA") and will receive an appropriate COBRA notice
setting forth Hagan's rights and obligations. Nothing in this paragraph shall
alter the Company's reserved right to change or discontinue any benefit plan at
any time.
(d) Qualified Benefit Plans. As of the date hereof, Hagan is a
participant in the American Commercial Lines LLC Pension Plan (the "ACL Pension
Plan") and the American Commercial Lines LLC 401(k) Plan (the "ACL 401(k) Plan"
and, together with the ACL Pension Plan, the "Qualified Benefit Plans"). Hagan's
participation in the Qualified Benefit Plans shall in all respects continue to
be governed by the specific terms of the Qualified Benefit Plans.
(e) Non-Qualified Benefit Plans. As of the date hereof, Hagan is a
participant in the following non-qualified benefit plans offered by the Company
(collectively the "Non-Qualified Benefit Plans"): (i) American Commercial Lines
LLC Amended and Restated Salary Continuation Plan; (ii) Supplemental Savings
Plan for Eligible Executives of American Commercial Lines LLC; and (iii) Special
Retirement Plan of American Commercial Lines LLC. Notwithstanding the specific
terms of the Non-Qualified Benefit Plans, Hagan's participation in the
Non-Qualified Benefit Plans shall terminate on the Retirement Date, and any
claims Hagan may have for payment of funds pursuant to the Non-Qualified Benefit
Plans shall be treated in accordance with Section 5 hereof.
(4) CONSULTING SERVICES
(a) Consulting Period. As used herein, the term "Consulting Period"
shall mean the period of time beginning one day after the Retirement Date and
continuing through, and including June 30, 2004.
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(b) Consulting Services. During the Consulting Period, Hagan shall
provide, at the request of the Company's Chief Executive Officer, on an
as-needed basis, not to exceed 50 hours per month the services (the "Consulting
Services") specified below and in the Consulting Agreement:
(i) meetings with customers and vendors on behalf of the Company;
(ii) working with senior management of the Company on strategic
planning;
(iii) working with senior management of the Company and the
Company's advisors with respect to asset dispositions, if any,
that the Company may choose to pursue;
(iv) working with senior management of the Company and the
Company's advisors to develop a plan or reorganization in
connection with the Company's Chapter 11 Case;
(v) assisting the Company's executive management during any
transition period following the Retirement Date; and
(vi) such other senior management level tasks as the Company may
reasonably request.
(5) HAGAN RELEASE
In exchange for, and subject to the receipt of, the consideration set
forth herein, Hagan shall grant to the Company the following releases
(collectively the "Releases"):
(a) General Release. In consideration of the payments and benefits
received hereunder, Hagan agrees to release and waive all claims he may have
against the Company. Hagan's release includes all claims that are related to (i)
Hagan's employment with the Company; (ii) the voluntary or involuntary
separation from that employment; (iii) the design or administration of any
employee benefit program; (iv) any rights Hagan has to severance or similar
benefits under any program, policy or procedure of the Company other than the
payments recited in Section 3 of this Agreement; (v) any rights Hagan may have
to the continued receipt of benefits, other than as recited in Section 3 of this
Agreement; and (vi) any other claims or demands Hagan may have which arise under
any contract or law or on any other basis, including, but not limited to, claims
or demands under any severance plan or the Hagan Employment Agreement,
Restricted Stock Agreement, Stock Option Agreement, or any other agreement. This
release does not give up Hagan's rights to continued health insurance under
COBRA as set forth above.
(b) Federal and State Law Release. Hagan also releases any rights or
claims he may have under the Americans with Disabilities Act, which prohibits
employers from discriminating against any qualified individual with a
disability; Age Discrimination in
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Employment Act, which prohibits age discrimination in employment; Title VII of
the Civil Rights Act of 1964, which prohibits discrimination in employment based
on race, color, national origin, religion or sex; the Equal Pay Act, which
prohibits paying men and women unequal pay for equal work; Older Workers'
Benefit Protection Act, which prohibits discrimination in employee benefits;
state laws, which prohibit discrimination in employment based on, inter alia,
race, color, religion, age, national origin, handicap, sex, or ancestry; any
other federal, state or local laws or regulations prohibiting employment
discrimination, restricting an employer's right to terminate employees, or
otherwise regulating employment; any claims for wrongful discharge and all
claims for alleged physical or personal injury, or emotional distress; any
claims under the Worker Adjustment and Retraining Act or any similar law, which
requires, among other things, that advance notice be given of certain work force
reductions; and all claims under the Employee Retirement Income Security Act,
such as claims relating to pension or health plan benefits. This release covers
both claims that Hagan knows about and those he may not know about. Hagan
expressly waives all rights afforded him by any statute that limits the effect
of a release with respect to unknown claims to the maximum extent such statutes
permit such waiver. This release and waiver by Hagan is on behalf of Hagan and
his spouse (if any) and child or children (if any), heirs, beneficiaries,
devisees, executors, administrators, attorneys, personal representatives,
successors and assigns.
(c) Release of Non-Qualified Benefit Plan Claims. Without limiting the
generality of the foregoing, Hagan shall also release all claims he has to
payment of funds from (i) the Non-Qualified Benefit Plans, (ii) the Severance
Payments set forth in Section 9 of the Hagan Employment Agreement, and (iii) the
Key Employee Retention Agreement implemented by the Company as a part of its
Chapter 11 Case.
(6) NON-ADMISSION OF LIABILITY
Hagan understands and agrees that the Company's willingness to make
payments and pay benefits to him under this Agreement is not an admission of
liability, or obligation to provide such consideration in the absence of Hagan
signing this Agreement.
(7) RELEASE OF AGE DISCRIMINATION CLAIMS; PERIODS FOR REVIEW AND
RECONSIDERATION
(a) Release of Age Discrimination Claims. Hagan understands and agrees
that this document includes a release of claims arising under the Age
Discrimination in Employment Act or comparable state law including but not
limited to all claims relating to Hagan's separation from employment with the
Company. Hagan understands and acknowledges that he has been given a period of
twenty-one (21) days to review and consider this Agreement. Hagan further
understands and acknowledges that he may use as much or all of this 21 day
period as Hagan wishes before signing, and that Hagan has done so.
(i) Hagan again understands and acknowledges that Hagan is receiving
additional consideration from the Company, in part, in exchange for
the
Page 5 of 12
release of age discrimination claims potentially arising under the
Age Discrimination in Employment Act or comparable state law. Hagan
further understands and acknowledges that the additional
consideration given to Hagan by the Company in exchange for the
release of age discrimination claims potentially arising under the
Age Discrimination in Employment Act or comparable state law is more
than the Company is required to pay under its normal policies and
procedures.
(b) Encouragement to Consult with Attorney. Hagan understands and
acknowledges that he is hereby advised to consult with an attorney prior to
executing this Agreement. By signing below, Hagan warrants that he has had the
opportunity to consult with an attorney prior to any execution of this
Agreement, and to be fully and fairly advised by that legal counsel as to the
terms of the Release set forth in this Agreement.
(c) Periods for Review and Reconsideration. Hagan understands that he
has seven (7) days after signing this Agreement to revoke it by notice in
writing delivered to AMERICAN COMMERCIAL LINES LLC; ATTN: Lisa L. Fleming -
Revocation of Severance Release; 1701 Market Street, Jeffersonville, Indiana
47131-0610. The Releases set forth in this Agreement shall be binding,
effective, and enforceable upon the expiration of this seven-day revocation
period without such revocation being received, but not before such time. Hagan
understands and agrees that the Initial Payment will not be paid prior to the
expiration of this seven-day revocation period. In the event Hagan revokes this
Agreement during the revocation period, the Company reserves the right to
suspend the continuation of any wage or benefit as provided in Section 3 of this
Agreement. Should the Company do so, Hagan will receive a COBRA Notice setting
forth the effect of such cessation on Hagan's right to continued health care
coverage.
(8) NO FUTURE LAWSUITS, NON-RELEASE OF FUTURE CLAIMS
(a) No Future Lawsuits. By signing this Agreement, Hagan promises never
to file or pursue a claim, lawsuit or any other complaint or charge asserting
any of the claims, lawsuits, complaints or charges that are released in this
Agreement.
(b) Non-Release of Future Claims. This Agreement does not waive or
release any rights or claims that Hagan may have under the Age Discrimination in
Employment Act which may arise after the later of the date Hagan signs this
Agreement, the Retirement Date, or the expiration of the Consulting Period.
(9) REPAYMENT OF BENEFITS BASED ON SUBSEQUENT ASSERTION OF CLAIM;
INDEMNIFICATION FOR COSTS INCURRED BY THE COMPANY; NO LIMITATION ON COVENANT
NOT TO SUE
(a) Repayment of Benefits Based on Subsequent Assertion of Claim. Hagan
understands and agrees that he may not pursue any claim, lawsuit, or other
charge or complaint released by the literal terms of this Agreement. Hagan
further understands and agrees that if he should breach this covenant not to
sue, and if a Court should, for any
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reason, find his release of claims, as set forth in this Agreement, void,
voidable, imperfect, or incomplete in any respect, he may be liable for the
repayment of some or all of the compensation and benefits received hereunder,
including but not limited to the value of any other benefits Hagan received
pursuant to the terms of this Agreement. Statutes of limitations will run on all
claims without regard to Hagan's execution of this Agreement. In addition, if
Hagan breaches his covenant not to sue, as set forth in Section 8, Hagan shall
forfeit all right to future benefits, if any.
(b) Indemnification for Costs Incurred by the Company. Hagan
acknowledges and agrees that if he breaks his covenant not to sue or promise not
to assert claims against the Company in the future, by filing a claim, lawsuit
or other complaint against the Company or any other entity released under the
terms of this Agreement, and a Court finds Hagan's actions to be in breach of
the terms of this Agreement, Hagan will pay the Company's costs and reasonable
attorneys' fees in defending such claim, lawsuit, or other complaint.
(c) No Limitation on Covenant Not to Sue. Nothing in this Section shall
be construed to limit Hagan's covenant not to sue or promise not to assert
claims, as set forth above.
(10) GOVERNING LAW
Except for matters subject to the jurisdiction of the Bankruptcy Court or
subject to the Bankruptcy Code, this Agreement shall be governed and construed
in all respects in accordance with the laws of the State of Indiana without
regard to the conflict of laws rules contained therein. Any litigation arising
from the employment relationship or any termination of employment, shall be
brought in state or federal Court sitting in Clark County or Floyd County,
Indiana respectively.
(11) SEVERABILITY AND CONSEQUENCES OF INVALID TERMS
Except as otherwise specified herein, if any portion of this Agreement is
found void or unenforceable for any reason by any Court, the Court should
enforce all portions of this Agreement to the maximum extent which would have
been enforceable in the original Agreement. If such portion cannot be modified
to be enforceable, the unenforceable portion will be severed from the remaining
portions of this Agreement, which shall otherwise remain in full force and
effect.
(12) RELEASE OF HAGAN, INDEMNITY, INSURANCE
(a) Hagan Released Claims. In agreeing to grant the Releases contained
herein, the Company and Hagan hereby expressly acknowledge that Hagan is
relinquishing good and valuable rights to receive payments pursuant to the terms
and conditions of (i) the Hagan Employment Agreement, (ii) the Key Employee
Retention Program, and (iii) the Non-Qualified Benefit Plans. The Company and
Hagan further acknowledge that the Releases constitute good and valuable
consideration for the
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compensation and benefits that Hagan will receive pursuant to the terms of this
Agreement.
(b) Chapter 11 Release. In consideration of the Releases, the Company
shall use its best efforts to cause Hagan to be released by the Company, the
Company's creditors, and any other third party, all in connection with the
consummation of the Company's Chapter 11 plan of reorganization to the same
extent, and by the same releasing parties, if any, that current officers in good
standing are released in such Chapter 11 plan of reorganization (such a release
is referred to herein as a "Chapter 11 Release"). Hagan acknowledges that
neither the form nor timing of a Chapter 11 Release has been determined and that
the Company's ability to grant such releases is subject to the approval of the
Bankruptcy Court. Hagan further acknowledges that any such Chapter 11 Release
shall not limit or otherwise impair or affect any liability of Hagan for any
breach of the representations and warranties set forth in this Agreement.
(c) Continuing Indemnity Obligation. Subject to applicable bankruptcy
law, to the extent that any suit is brought against Hagan by any party, for acts
or occurrences taking place during, and allegedly arising out of, Hagan's
employment by the Company that would have given rise to an obligation of the
Company to defend, indemnify or hold Hagan harmless, pursuant to its
organizational documents or any agreement or undertaking to which the Company is
a party if Hagan were an active employee, officer or director, then the Company
shall defend, indemnify and hold Hagan harmless to the fullest extent permitted
by such organizational document, agreement or undertaking.
(d) Directors & Officers Liability Coverage. The Company hereby
represents and warrants that, as of the date hereof it has in full force and
effect an Officers and Directors Liability Policy (the "D&O Policy") which
covers Hagan in his capacity as an officer and/or director of the Company. As
additional consideration for the Releases set forth herein, which has been
specifically bargained for, the Company hereby agrees that it will:
(i) provide Hagan with a copy of an insurance certificate evidencing the
D&O Policy;
(ii) following the date hereof, provide Hagan with a copy of any material
correspondence relating to the D&O Policy, including, but not
limited to, any notice of cancellation or nonrenewal of the D&O
Policy;
(iii) not take any action to limit or impair Hagan's access to such D&O
Policy;
(iv) upon any cancellation or nonrenewal of the D&O Policy, exercise its
right to extend the claim period for a one-year "discovery period"
and pay such premiums required thereunder; and
(v) to the extent any claim is made against Hagan that would entitle him
to coverage under the D&O Policy (as the same may be
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extended or renewed, or during any discovery period coverage), give
Hagan direct access to the coverage provide by the D&O Policy, and
pay any deductible required by the D&O Policy.
(13) COOPERATION
In addition to providing Consulting Services as described herein,
following the Retirement Date, Hagan agrees to cooperate with the Company upon
reasonable request of the Board of Directors of the Company (the "Board") or its
designee, and to be reasonably available to the Company with respect to matters
arising out of Hagan's services to the Company. To the extent permitted by law,
Hagan agrees (i) not to voluntarily assist or otherwise cooperate voluntarily
with any non-government person or entity in any claim against the Company and
(ii) to notify the Company in writing immediately upon learning that he is to be
or is likely to be compelled to provide testimony, documents or any form of
assistance in any claim against the Company. Notwithstanding any other provision
of this Section, Hagan shall give truthful testimony in any investigations,
proceedings or legal actions relating to the Company.
(14) REPRESENTATIONS AND WARRANTIES
(a) Hagan Representations and Warranties. Hagan represents and warrants
to the Company that:
(i) He has not, with respect to any transaction or state of facts
existing prior to the Retirement Date, filed any claims, complaints, charges or
lawsuits against the Company with any governmental agency, court or tribunal.
(ii) He has disclosed all necessary information to the Board in
connection with the satisfaction of his duties owed to the Company.
(iii) He is not aware of (i) any material claims that could be brought
by the Company or any of its subsidiaries or affiliates against any person or
entity (including, without limitation, himself), (ii) any material claims that
could be brought by any person or entity (including, without limitation,
himself) against the Company; or (iii) any information that could give rise to
such claim(s), that have not been disclosed to the Board or a committee of the
Board.
(iv) His execution, delivery and performance of this Agreement does not
and shall not conflict with, or result in the breach of or a violation of, any
other agreement, instrument, order, judgment or decree to which he is a party or
by which he is bound.
The Hagan Representations and Warranties set forth in this Section
shall survive any release of Hagan in connection with the consummation of the
Company's Chapter 11 plan of reorganization and shall remain in full force and
effect until the expiration of any applicable limitations period.
(b) Company Representations and Warranties. The Company hereby
represents and warrants to Hagan that:
Page 9 of 12
(i) Subject to Section 16 hereof, the Company has received the
requisite corporate authority to execute and deliver this Agreement, and perform
its obligations hereunder.
(ii) This Agreement has been executed by a duly authorized officer of
the Company and, subject to Section 16 hereof, constitutes the valid, binding
and legal obligation of the Company, enforceable against the Company pursuant to
the terms hereof.
(iii) The execution, delivery and performance of this Agreement by the
Company will not violate any term or provision of article of incorporation or
organization, by-law or other organizational document of the Company.
(iv) The execution, delivery and performance of this Agreement by the
Company does not and shall not conflict with, or result in the breach of or a
violation of, any other material agreement, instrument, order, judgment or
decree to which the Company is a party or by which the Company is bound.
(v) Except for the approval of the Bankruptcy Court, as set forth in
Section 16 hereof, the Company is not required to obtain any other consent,
approval or authorization as a condition to the effectiveness of, or its
performance of, this Agreement.
(15) ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Company and Hagan
pertaining to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and understandings in connection
therewith, including but not limited to any Employment Agreement or Stock
Agreement. There are no oral or written promises affecting this Agreement.
(16) COURT APPROVAL CONTINGENCY
The Company and Hagan acknowledge and agree that this Agreement is being
entered into by the Company as a debtor and debtor in possession as the result
of the Company's filing a voluntary petition for relief under Chapter 11 of the
Bankruptcy Code on or about January 31, 2003 (as used herein, the "Chapter 11
Case"), in the United States Bankruptcy Court for the Southern District of
Indiana (the "Bankruptcy Court") under case number 03-90305 9 (BHL) (jointly
administered). The parties further agree as follows:
(a) this Agreement and all of the parties' obligations hereunder are
subject to the approval of the Bankruptcy Court after notice and a hearing. If
the Bankruptcy court does not approve this Agreement, this Agreement shall be
void in its entirety, and no party shall have any rights or obligations
hereunder;
(b) that, within 15 days following the execution of this Agreement by
Hagan and the Company, the Company shall submit a motion (the "Motion") to the
Bankruptcy
Page 10 of 12
Court seeking approval of this Agreement. The Motion shall specifically request
that the payment to Hagan of the Initial Payment, the Consulting Fees, and any
other payments that may be required pursuant to the terms of this Agreement be
Allowed (as that term is used in the Bankruptcy Code) as an administrative
expense against the Company pursuant to Section 503(b) of the Bankruptcy Code.
The Motion shall be noticed pursuant to the provisions of Sections 363(b), 365
and 503(b) of the Bankruptcy Code and Bankruptcy Rule 9019;
(c) the Company shall use its best efforts (i) to obtain, prior to
filing the Motion, from the Official Unsecured Creditors Committee appointed in
this case, consent to the Motion, this Agreement and the transactions
contemplated herein; and (ii) to the extent there are any objections to the
Motion, resolve the objections prior to any hearing on the Motion; and
(d) shall provide to Hagan and his counsel, if any, prior to filing the
Motion, a copy of the Motion and the proposed order (the "Approval Order"),
seeking approval of this Agreement. Both the Motion and the Approval Order shall
be in a form and in substance satisfactory to by Hagan or his counsel, if any.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF KNOWN AND
UNKNOWN CLAIMS.
BY SIGNING BELOW, I ACKNOWLEDGE THAT I HAVE READ THIS RELEASE, THAT I
UNDERSTAND IT; AND THAT I AM ENTERING INTO IT VOLUNTARILY.
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IN WITNESS WHEREOF, and intending to be legally bound, Hagan and the
Company have each executed this Agreement, after a due reading of the whole.
MICHAEL C. HAGAN
------------------------------------
Dated:
-----------------------------
AMERICAN COMMERCIAL LINES LLC, as a
debtor and debtor in possession
By:
--------------------------------
Title:
Dated:
-----------------------------
Checks and subsequent correspondence should be sent to (fill in address):
------------------------------------
------------------------------------
------------------------------------
Please note that checks and subsequent correspondence may be sent via certified
mail, return receipt requested.
Page 12 of 12
Dates Referenced Herein and Documents Incorporated by Reference
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