EXHIBIT 10.4
FIRST AMENDMENT AND SUPPLEMENT
TO TERMINATION BENEFITS AGREEMENT
This First Amendment and Supplement to Termination Benefits
Agreement dated as of April 30, 2004 (this "Amendment and Supplement"), amends
and supplements that certain Termination Benefits Agreement made and entered
into as of December 22, 2003 (the "Agreement") 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. Employee currently serves as Senior Vice President of
Operations of ACBL.
B. The Company desires for Employee to serve as its President and
Chief Operating Officer, and Employee desires to serve the Company in such
positions.
C. The Company also desires Employee to serve as a member of its
Board of Managers.
D. The Company, ACBL, ACLI and Jeffboat and Employee desire to
amend and supplement the terms of the Agreement and to continue their
relationship under the Agreement as modified by the provisions of this Amendment
and Supplement.
AMENDMENT
In consideration of the foregoing, the mutual covenants herein
contained and the mutual benefits herein provided, the Company, ACBL, ACLI, and
Jeffboat, and Employee hereby agree to amend and supplement the Agreement as
follows:
1. Effective April 30, 2004, Employee shall serve as the
Company's President and Chief Operating Officer and shall not continue to serve
as Senior Vice President of Operations of ACBL. Employee's employment with ACBL
shall continue to be on an at-will basis, which means either ACBL or Employee
may terminate the employment relationship at any time for any reason.
2. Effective April 30, 2004, Employee accepts his appointment as
a member of the Board of Managers of the Company pursuant to the Unanimous
Written Consent of the Board of Managers of American Commercial Lines LLC dated
as of April 15, 2004.
3. Effective April 30, 2004, ACBL shall increase Employee's base
salary to Two Hundred Thirty-Five Thousand ($235,000) on an annualized basis.
ACBL shall have the right to review the base salary periodically to determine,
at the discretion of ACBL, whether the
base salary should be adjusted and, if so, the amount of such adjustment and
the time at which the adjustment should take effect.
4. Employee shall be entitled to participate in any incentive
bonus plan or program which the Company or ACBL may adopt or implement
specifically for Employee from time to time during Employee's service as the
Company's President and Chief Operating Officer. The initial incentive bonus
program under which Employee shall be eligible to earn an incentive bonus
totaling up to one hundred percent (100%) of Employee's base salary is as
follows:
If during the year ending December 31, 2004, the Company and its
subsidiaries achieve the consolidated EBITDA financial targets that
have been set by the Company, which EBITDA targets are set forth on
the schedule attached to this Amendment and Supplement as Schedule
4, then the Company agrees to pay Employee a lump sum bonus in the
gross amount of Two Hundred Thirty-Five Thousand Dollars ($235,000).
Employee must be employed with the Company or one of its
subsidiaries through December 31, 2004, to be eligible to earn and
receive such incentive bonus. The bonus, if earned, shall be payable
by January 31, 2005. In the event the Company and its subsidiaries
achieve certain, but not all, of the consolidated EBITDA targets,
the Company in its sole discretion may, but is not obligated to, pay
a portion of the incentive bonus to Employee. The foregoing
incentive bonus for the year ending December 31, 2004, is in lieu of
and supersedes any other incentive bonus program for Employee for
the year ending December 31, 2004.
5. Section 5(a) of the Agreement is amended in its entirety to
read as follows:
(a) without Employee's written consent, the reassignment by the
Company or an Affiliate, other than for Cause, of Employee to
any position or duties which constitute a substantial
reduction of Employee's duties or status with the Company or
an Affiliate as such duties or status existed as of
immediately prior to Employee being named the President and
Chief Operating Officer of the Company and which does not
represent a promotion from the position Employee held as of
immediately prior to Employee being named President and Chief
Operating Officer of the Company;
6. Section 5(b) of the Agreement is amended in its entirety to
read as follows:
(b) without Employee's written consent, a reduction by the Company
or an Affiliate, other than for Cause, in Employee's base
salary from the level of such base salary as of immediately
prior to Employee being named the Company's President and
Chief Operating Officer;
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7. Except as specifically amended or supplemented by this
Amendment and Supplement, all of the provisions of the Agreement shall remain
unchanged and continue in full force and effect.
8. This Amendment and Supplement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment and
Supplement as of the date first above written.
AMERICAN COMMERCIAL LINES LLC EMPLOYEE
By: /s/ Lisa L. Fleming /s/ W. Norb Whitlock
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Printed Name: Lisa L. Fleming W. Norb Whitlock
Title: Sr. Vice President Law & Administration
AMERICAN COMMERCIAL BARGE
LINE LLC
By: /s/ Lisa L. Fleming
-----------------------------------------
Printed Name: Lisa L. Fleming
Title: Sr. Vice President Law & Administration
AMERICAN COMMERCIAL LINES
INTERNATIONAL LLC
By: /s/ Lisa L. Fleming
-----------------------------------------
Printed Name: Lisa L. Fleming
Title: Sr. Vice President Law & Administration
JEFFBOAT LLC
By: /s/ Lisa L. Fleming
-----------------------------------------
Printed Name: Lisa L. Fleming
Title: Sr. Vice President Law & Administration
Schedule 4
EBITDA FINANCIAL TARGETS FOR 2004
COMPANY ANNUAL EBITDA TARGET
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American Commercial Barge Line $ 54,165,000
American Commercial Terminals $ 1,330,000
Louisiana Dock Company $ 12,834,000
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