EXHIBIT 10.5
SECOND AMENDMENT AND SUPPLEMENT
TO TERMINATION BENEFITS AGREEMENT
This Second Amendment and Supplement to Termination Benefits
Agreement dated as of January 18, 2005 (this "Amendment and Supplement"),
further amends and supplements that certain Termination Benefits Agreement made
and entered into as of December 22, 2003 (the "Agreement") by and among 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. N. Whitlock ("Employee") and amended
pursuant to that certain First Amendment and Supplement dated as of April 30,
2004.
RECITALS
A. Employee currently serves as Senior Vice President of
Operations of ACBL, as President and Chief Operating Officer of the Company and
as a member of the Company's Board of Managers.
B. On January 10, 2005, the Board of Directors of American
Commercial Lines, Inc. ("ACL Inc."), the Company's parent, approved the American
Commercial Lines Inc. Equity Award Plan for Employees, Officers and Directors
(the "Plan"), which authorizes the award of equity interests in ACL Inc. to
employees, officers and directors of ACL Inc. and its subsidiaries.
C. ACBL and the Company and Employee desire that Employee shall
be entitled to receive awards under the Plan.
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 as of the date hereof, ACBL shall increase
Employee's base salary to Three Hundred Thousand Dollars ($300,000) 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.
2. Employee shall be entitled to be granted 28,036 shares of
common stock (the "Restricted Stock"), representing approximately one half per
cent (0.50%) of the issued and outstanding shares of common stock of ACL Inc.
("Common Stock") as of the date hereof. 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. Employee 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 Employee 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.
3. Employee shall be entitled to be granted options to purchase
28,036 shares of Common Stock (the "Options"), representing approximately one
half per cent (0.50%) of the issued and outstanding shares of Common Stock as of
the date hereof with an exercise price per share equal to the fair market value
of a share of Common Stock on the date hereof. 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 a period of ninety (90) days following termination, and shall be
subject to such other terms and conditions not inconsistent with the terms of
this Amendment and Supplement as are set forth in the Stock Option Agreement to
be executed by ACL Inc. and Employee and as determined by the Compensation
Committee of the Board of Directors of ACL Inc. Employee 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.
4. Notwithstanding any other provision in the Agreement, as
amended, this Amendment or Supplement 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 ACL Inc. 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 ACL Inc. 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 Amendment and Supplement pursuant to Sections 2 or 3 of this Amendment
and Supplement are not subject to this Section 4. This Section 4 shall survive
any expiration or termination of this Amendment and Supplement for any reason.
5. 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.
6. 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.
-2-
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. N. Whitlock
------------------------------------------ ----------------------------
Printed Name: Lisa L. Fleming W. N. 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
-3-