Exhibit 10.12


 


AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


 


AGREEMENT (this “Agreement”) made as of November 3, 2004,
between USS Vessel Management LLC, a Delaware limited liability company with an
office at 399 Thornall Street, Edison, New Jersey 08837 (the “Company”),
and Jeffrey M. Miller, residing at 1076 Cateret Road, Bridgewater, New Jersey  08807 (the “Executive”).


 


W I T N E S S E T H:


 


WHEREAS, Executive is presently the Vice President—Chartering of the
Company, United States Shipping Master LLC, a Delaware limited liability company
(“Parent”), and each subsidiary of Parent (collectively with the Company,
Parent and any entity that hereafter becomes a subsidiary of Parent or U.S.
Shipping Partners L.P., a Delaware limited partnership (the “Partnership”),
the “US Shipping Group”);


 


WHEREAS, on the date of the closing of the initial public offering of
the Partnership pursuant to its Registration Statement on Form S-1 (No.
333-118141) (such date the “Effective Date”) Parent will contribute the
operating subsidiaries constituting the US Shipping Group (other than the
Company, USS Transport LLC, USS Chemical Transport LLC and US Shipping General
Partner LLC, the sole member of the Company (the “General Partner”)) to the
Partnership;


 


WHEREAS, the Company and Executive are parties to an employment
agreement dated as of September 13, 2002 (the “Prior Agreement”);


 


WHEREAS, the Company and Executive desire to amend and restate the
terms of the Prior Agreement; and


 


WHEREAS, this Agreement shall supercede and completely replace the
Prior Agreement as of the Effective Date.


 


NOW, THEREFORE, in consideration of the premises and of the mutual
promises, representations and covenants herein contained, the parties hereto
agree as follows:


 


1.             EMPLOYMENT.


 


The Company hereby employs Executive and Executive hereby accepts such
employment, subject to the terms and conditions herein set forth.  Executive shall hold the office of Vice President—Chartering
of the Company reporting to the President of the Company.


 


2.             TERM.


 


The initial term of employment under this Agreement shall begin on the Effective
Date and shall continue until October 31 2007, subject to prior termination in
accordance with the terms hereof (the “Initial Term”).  The Initial Term shall be automatically extended
for successive additional periods of one (1) year commencing on the third anniversary
of the Effective Date and each anniversary thereof (each such period, an “Additional
Term”) unless either party shall have given written notice to the other
party of non-extension at least sixty (60) days’ prior to the end of the then
applicable Initial Term or Additional Term (the Initial Term and any Additional
Term collectively, the “Employment Term”).  Notice of non-extension by the Company shall
be deemed a termination without justifiable cause (as defined herein) at 


 





















 


the end of the then current Employment Term and notice of non-extension
by Executive shall be deemed a termination without good reason (as defined
herein) at the end of the then current Employment Term.


 


3.             COMPENSATION.


 


As compensation for the employment services to be rendered by Executive
hereunder, including all services as an officer or director of any member of
the US Shipping Group, the Company agrees to pay, or cause to be paid, to Executive,
and Executive agrees to accept, payable in equal installments in accordance
with Company practice, an initial annual salary of $257,000.  Executive’s annual salary hereunder for the
remaining years of employment shall be determined by the Board of Directors of
the General Partner (the “GP Board”) in its sole discretion; provided,
however, that in no event shall Executive’s salary in any year be reduced below
the rate for the previous year.  In
addition, Executive shall be eligible for bonuses from time to time in such
amounts as may be determined by the GP Board in its sole discretion.


 


4.             EXPENSES.


 


The Company shall pay or reimburse Executive, upon presentment of
suitable vouchers, for all reasonable business and travel expenses which may be
incurred or paid by Executive in connection with his employment hereunder in
accordance with Company policy as established from time to time by the Board of
Directors.  Executive shall comply with
such restrictions and shall keep such records as the Company may reasonably
deem necessary to meet the requirements of the Internal Revenue Code of 1986,
as amended from time to time (the “Code”), and regulations promulgated
thereunder.


 


5.             OTHER
BENEFITS.


 


Executive shall be entitled to five weeks paid vacation per year and to
participate in such benefit plans and arrangements and receive any other
benefits customarily provided by the Company to its senior management personnel
(including any profit sharing, pension, short- and long-term disability
insurance, hospital, major medical insurance and group life insurance plans in
accordance with the terms of such plans) and including stock option and/or
stock purchase plans, all as determined from time to time by the GP Board, on a
level commensurate with Executive’s seniority (the “Benefit Plans”).  The Company shall indemnify Executive to the
fullest extent permitted by Delaware law, including the advancement of legal
expenses and costs.


 


6.             DUTIES.


 


(a)           Executive
shall perform such reasonable duties and functions as the President of the
Company may lawfully assign to him, such duties being commensurate with the
duties customarily performed by a vice president responsible for chartering/obtaining
users of space on vessels, and Executive shall comply in the performance of his
duties with the policies of the Chief Executive Officer, the Board of Directors
of the Company (the “Company Board”) and the GP Board, and be subject to
the direction of the Chief Executive Officer, President, the Company Board and
the GP Board.  Executive shall also
serve, without additional compensation, as Vice President—Chartering of the
General Partner, Parent, the Partnership and each subsidiary of the Partnership
and the General Partner.  At the request
of the GP Board, Executive shall serve as an executive officer, director and
manager of any other member of the US Shipping Group without additional
compensation and, in the performance of such duties, Executive shall comply
with the policies of the board of directors or board of managers of each such entity.


 


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(b)           During the
Employment Term, Executive shall devote a majority of his time and attention,
reasonable vacation time and absences for sickness excepted, to the business of
the Company, as necessary to fulfill his duties.  Executive shall perform the duties assigned
to him with fidelity and to the best of his ability.  Notwithstanding anything herein to the
contrary, Executive may engage in other activities so long as such activities
do not unreasonably interfere with Executive’s performance of his duties
hereunder and do not violate Section 9 hereof. 
The Company recognizes that Executive will be devoting a significant
minority of his time to the activities set forth on Schedule A attached
hereto and will be compensated independently for same.


 


(c)           Nothing
contained in this Section 6 or elsewhere in this Agreement shall be construed
to prevent Executive from investing or trading in non-competing investments as
he sees fit for his own account, including real estate, stocks, bonds,
securities, commodities or other forms of investments.  Specifically, the Company acknowledges that
(i) the Executive has disclosed ownership interests in and management
responsibilities for the entities and assets listed on Schedule A
attached hereto and (ii) neither such ownership interests nor management
responsibilities as they exist as of the date hereof shall, subject to the
first two sentences of Section 6(b), violate this Section 6 or the other
provisions of this Agreement.


 


7.             TERMINATION
OF EMPLOYMENT; EFFECT OF TERMINATION.


 


(a)           Executive’s
employment hereunder shall terminate upon the first to occur of the following:


 


(i)            upon thirty (30)
days’ prior written notice to Executive upon the determination by the GP Board
that Executive’s performance of his duties has not been fully satisfactory for
any reason which would not constitute “justifiable cause” (as hereinafter
defined);


 


(ii)           upon three (3) days’
prior written notice to Executive upon the determination by the GP Board that
there is justifiable cause for such termination;


 


(iii)          automatically and
without notice upon the death of Executive;


 


(iv)          in accordance with the
terms of subsection (d) hereof upon the “disability” (as hereinafter defined)
of Executive;


 


(v)           upon written notice by
the Executive to the Company of a termination for good reason (as hereinafter defined)
within ninety (90) days after the event that constitutes good reason; or


 


(vi)          upon 30 days’ prior
written notice by Executive to the Company of the Executive’s voluntary
termination of employment without good reason.


 


(b)           For the
purposes of this Agreement, the term:


 


(i)            “disability”
shall mean the inability of Executive, due to illness, accident or any other
physical or mental incapacity, substantially to perform the material functions
of his duties for a period of six (6) consecutive months or for a total of
eight (8) months (whether or not consecutive) in any twelve (12) month period
during the term of this Agreement, as reasonably determined by the GP Board, in
good faith, after examination of Executive by an independent physician
reasonably acceptable to Executive.


 


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(ii)           “change of
control” shall mean (A) the occurrence of any transaction the result of
which is that any person (other than Parent, any entity controlled by Sterling
Investment Partners L.P. or its affiliates, or any entity in which Executive is
an executive officer and/or equity holder that is formed for the purpose of
effecting the transaction that would constitute a change of control and that,
prior to effecting such transaction, does not have any equity securities that are
publicly traded) acquires more than 50% of the outstanding equity of, or
otherwise obtains the right to appoint a majority of, the directors (or
equivalent) of (x) the General Partner or (y) Parent or (B) the sale of all or
substantially all the assets of the General Partner or Parent to any person
other than an affiliate of Parent, any entity controlled by Sterling Investment
Partners L.P. or its affiliates or any entity in which Executive is an
executive officer and/or equity holder that is formed for the purpose of
effecting the transaction that would constitute a change of control and that,
prior to effecting such transaction, does not have any equity securities that
are publicly traded);


 


(iii)          “good reason”
shall mean (i) any material diminution of Executive’s duties, (ii) any change
in Executive’s reporting relationship that removes the Executive from reporting
directly to the President of the Company, (iii) any change in Executive’s or
another person’s duties that provides such other person with substantially all
the duties then being performed by Executive, or (iv) requiring Executive to be
physically present during a substantial portion of the working hours he is
required to devote to the Company at a location that is not within a 50 mile
radius of Metro Park, New Jersey, in each case that has not been remedied
within thirty days after written notice from Executive to the GP Board; and


 


(iv)          “justifiable
cause” shall mean:  (i) Executive’s
repeated failure or refusal to attempt to perform his duties pursuant to, or
Executive’s breach of, this Agreement where such conduct or breach shall not
have ceased or been remedied within 15 days following written warning from the
Company; (ii) Executive’s performance of any act or his failure to act, for
which if Executive were prosecuted and convicted, a crime or offense involving
money or property of the US Shipping Group, or which would constitute a felony
in the jurisdiction involved, would have occurred; (iii) Executive’s
performance of any act or his failure to act which constitutes, in the
reasonable good faith determination of the GP Board, dishonesty, fraud or a
breach of a fiduciary trust, including without limitation misappropriation of
funds; (iv) any intentional unauthorized disclosure by Executive to any person,
firm or corporation other than the members of the US Shipping Group and their
respective directors, managers, officers and employees, of any confidential
information or trade secret of the US Shipping Group; (v) any attempt by
Executive to secure any personal profit (other than through his ownership of units
of Parent or the Partnership and his profits interest in the General Partner)
in connection with the business of the US Shipping Group (for example, without
limitation, using US Shipping Group assets to pursue other interests, diverting
any business opportunity belonging to US Shipping Group to himself or to a
third party, insider trading or taking bribes or kickbacks); (vi) Executive’s
engagement in a fraudulent act to the material damage of the US Shipping Group;
(vii) Executive’s engagement in conduct or activities materially damaging to
the property, business or reputation of the US Shipping Group, as determined in
reasonable good faith by the Board of Directors; (viii) Executive’s illegal use
of controlled substances; (ix) any act or omission by Executive involving
malfeasance or gross negligence in the performance of Executive’s duties to the
material detriment of the US Shipping Group, as determined in reasonable good
faith by the GP Board; or (x) the entry of any order of a court that remains in
effect and is not discharged for a period of at least sixty (60) days, which
enjoins or otherwise limits or restricts the performance by Executive under
this Agreement, relating to any contract, agreement or commitment made by or
applicable to Executive in favor of any former employer or any other person.  Upon termination of Executive’s employment
for justifiable cause, Executive shall not be 


 


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entitled to receive
any amounts or benefits hereunder other than such portion of Executive’s annual
salary and reimbursement of expenses pursuant to Section 4 hereof as has been
accrued through the date of his termination of employment.


 


(c)           If
Executive should die during the term of his employment hereunder, this
Agreement shall terminate immediately. 
In such event, the estate of Executive shall thereupon be entitled to
receive such portion of Executive’s annual salary and reimbursement of expenses
pursuant to Section 4 as has been accrued through the date of his death.  Executive shall also be entitled to any
amounts or benefits payable under the terms of the Benefit Plans.


 


(d)           Upon
a finding by the GP Board of Executive’s disability in accordance with Section
7(b) hereof, the Company shall have the right to terminate Executive’s
employment.  Notwithstanding any
inability to perform his duties, Executive shall be entitled to receive his
compensation (including bonus, if any) pursuant to Section 3 and reimbursement
of expenses pursuant to Section 4 as provided herein until he begins to receive
long-term disability insurance benefits under the policy provided by the
Company pursuant to Section 5 hereof.  In
the event that payments received from such long-term disability insurance
policy do not equal the Executive’s rate of salary at the time of the
disability, then for a period of 12 months following termination the Company
shall continue to pay to Executive the difference between the policy benefit
and such rate of salary, subject to any applicable tax withholding.  Any termination pursuant to this subsection
(e) shall be effective on the later of (i) the date 30 days after which
Executive shall have received written notice of the Company’s election to
terminate or (ii) the date Executive begins to receive long-term disability
insurance benefits under the policy provided by the Company pursuant to Section
5 hereof. Executive shall also be entitled to any amounts or benefits payable
under the terms of the Benefit Plans.


 


(e)           Notwithstanding
any provision to the contrary contained herein, in the event that Executive’s
employment is terminated by the Company without justifiable cause or by the
Executive for good reason, the Company shall (i) pay Executive, for a period of
two years following the date of termination (such period being hereinafter
referred to as the “Severance Period”), a monthly payment (subject to
applicable tax withholding) equal to one-twelfth of his then annual salary and
one-twelfth of his target bonus for the year in which termination of employment
occurs, as established by the compensation committee of the GP Board (provided
that if the compensation committee has not established a target bonus for such
year, then for purposes of this Section 7(e) such target bonus shall be 50% of
Executive’s then current salary), which amount shall be in lieu of any and all
other payments due and owing to Executive under the terms of this Agreement
(other than any payments constituting reimbursement of expenses pursuant to
Section 4 hereof and any payments or benefits payable under the Benefit Plans),
and (ii) continue to allow Executive to participate, at the Company’s expense
(to the same extent the Company bears such expense at the time of termination),
in the Company’s health insurance program, to the extent permitted under such
programs, until the earlier of (1) the end of the Severance Period or (2) the
date Executive begins employment with another entity which provides
substantially similar benefits to the Executive (collectively, the “Severance
Payments”); provided, however, that the Company’s obligation to make the
Severance Payments shall be conditional upon Executive executing a general
release in favor of the Company and Executive’s compliance with his obligations
under Sections 9, 10, 11 and 12 hereof; and provided further, that in the event
that Executive’s employment is terminated by the Company without justifiable cause
(including by reason of non-renewal of this Agreement) or by the Executive for good
reason within two years following the effective date of a change of control,
then the Company shall pay to Executive, in lieu of the amounts to be paid
pursuant to clause (i) of the first sentence of this Section 7(e), an amount
equal to the product determined by multiplying (x) the sum of his then annual
salary and his target bonus for the year in which termination of employment
occurs, as established by the compensation committee of the GP Board (provided
that if the compensation committee has not established a target bonus for such
year, then for purposes of this Section 7(e) such 


 


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target bonus shall be 50% of Executive’s then current salary), by (y)
three, such payment to be made within ten business days following such
termination of employment.  If Executive’s
employment is terminated by the Company without justifiable cause (including by
reason of non-renewal of this Agreement) or by the Executive for good reason at
a time when the Partnership, the General Partner or Parent is in negotiations
regarding a transaction that would, if consummated, constitute a change of control
and such transaction is consummated within one year following Executive’s
termination of employment, then Executive’s severance shall be calculated and
paid as if such termination had occurred within two years following a change of
control, and the Company shall, upon consummation of such transaction, pay to
Executive an amount equal to the difference between the amount he would be
entitled to receive pursuant to this sentence and the amount of severance
payments Executive has received through such date.


 


(f)            Upon
Executive’s termination of his employment hereunder or his election not to
renew this Agreement, this Agreement (other than Sections 5, 9, 10, 11, 12 and
15 which shall survive in accordance with their terms) shall terminate.  In such event, Executive shall be entitled to
receive such portion of Executive’s annual salary and bonus, if any, as has
been accrued to date.  Executive shall be
entitled to reimbursement of expenses pursuant to Section 4 hereof and to
continue to participate in the Benefit Plans to the extent participation by
former employees is required by law or permitted by such plans, with the
expense of such participation to be as specified in such plans for former
employees.  Executive shall also be
entitled to any amounts or benefits payable under the terms of the Benefit
Plans.


 


8.             REPRESENTATIONS
AND AGREEMENTS OF EXECUTIVE.


 


(a)           Executive
represents and warrants that he is free to enter into this Agreement and to
perform the duties required hereunder, and that there are no employment
contracts or understandings, restrictive covenants or other restrictions,
whether written or oral, preventing the performance of his duties hereunder.


 


(b)           Executive
agrees to submit to a medical examination and to cooperate and supply such
other information and documents as may be reasonably required by any insurance
company in connection with the Company’s obtaining life insurance on the life
of Executive, and any other type of insurance or fringe benefit as the Company
shall determine from time to time to obtain.


 


9.             NON-COMPETITION.


 


(a)           In
view of the unique and valuable services expected to be rendered by Executive
to the US Shipping Group, Executive’s knowledge of the trade secrets and other
proprietary information relating to the business and in consideration of the
compensation to be received hereunder and Executive’s direct ownership interest
in the Parent and indirect ownership in the Partnership, Executive agrees that
during his employment by the Company and, following the termination of
Executive’s employment hereunder, during the Non-Competition Period (as defined
below), Executive shall not, directly or indirectly, as owner, partner, joint
venturer, stockholder, employee, broker, agent, principal, trustee, corporate
officer, director, licensor, or in any capacity whatsoever engage in, become
financially interested in, be employed by, render any consultation or business
advice with respect to, or have any connection with, (i) any business which is
competitive with products or services of the US Shipping Group in the United
States of America or (ii) any business conducted under any corporate or trade
name utilized by the US Shipping Group or any name similar thereto without the
prior written consent of the Company; provided, however, that Executive may own
any securities of any corporation which is engaged in such business and is
publicly owned and traded but in an amount not to exceed at any one time one
percent (1%) of any class of stock or securities of such corporation.  The Company hereby agrees that the following
activities shall not be deemed to be a business competitive with the business
of the US Shipping Group:


 


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(i)            employment,
following termination of employment hereunder, by any entity that is not
engaged in the ownership and operation of vessels engaged in the coastwise
trade under the Jones Act;


 


(ii)           employment,
following termination of employment hereunder, by an entity that has divisions
or affiliates engaged in the ownership and operation of vessels engaged in the
coastwise trade under the Jones Act as long as Executive is employed in a
division or affiliate of such entity that does not, directly or indirectly,
engage in the ownership and operation of vessels engaged in the coastwise trade
under the Jones Act and Executive does not share information, directly or
indirectly, with those divisions and/or affiliates of such entity engaged in
the ownership and operation of vessels engaged in the coastwise trade under the
Jones Act; or


 


(iii)          transportation of
chemical products on the tank barges listed on Schedule A hereto and, subject
to the provisions of Section 9(b) below, any other tank barges of less than
15,000 tons deadweight, other than the transportation of petroleum or petroleum
products, as long as either (i) Mr. Miller continues to engage in such business
on a continuous basis after the date hereof or (ii) if Mr. Miller does not
continue to engage in such business on a continuous basis after the date hereof,
at the time Mr. Miller determines to reenter such business, the US Shipping
Group is not then engaged in such business.


 


In addition, Executive shall not, directly or
indirectly, during the Non-Competition Period, request or cause any suppliers
or customers with whom the US Shipping Group has a business relationship to
cancel or terminate any such business relationship with any member of the US
Shipping Group or solicit, interfere with or entice from the Parent or any of
its subsidiaries any employee (or former employee) of the Parent or any of its
subsidiaries.  For purposes hereof, the “Non-Competition
Period” shall mean:  (i) if Executive’s
employment is terminated by the Company for justifiable cause (as defined in
Section 7(b)) or disability (as defined in Section 7(b)), or if Executive
voluntarily terminates his employment hereunder (including by electing not to
renew this Agreement), a period of two (2) years following such termination of
employment; and (ii) if Executive’s employment is terminated by the Company for
other than justifiable cause or disability, by the Executive for good reason,
or as a result of the Company’s election not to renew the employment agreement,
the Severance Period, provided, however, that in the case of this clause (ii)
if the Company breaches its obligation to make the Severance Payments or to
comply with its obligations under Section 4 hereof, and such breach is not
cured within thirty (30) days after written notice of such breach is provided
to the Company by Executive, Executive shall be released from his obligations
under this Section 9.


 


(b)           Notwithstanding
Section 9(a) hereof, Executive agrees that during his employment by the Company
he will not, directly or indirectly, acquire an interest in any tank barge
(other than those listed on Schedule A hereto) of less than 15,000
deadweight tons if at any time more than 50% of the income expected to be
generated from the operation of such tank barge in a six-month period is
expected to be “qualifying income” (within the meaning of Section 7704(d) of
the Code, or any successor provision thereto) without first offering to the
Partnership the opportunity to acquire such interest on the same terms and
conditions offered to him and the conflicts committee of the GP Board determining
that the Partnership is not interested in acquiring such interest; provided
that if at the time of acquisition less than 50% of the income expected to be
generated from the operation of such tank barge in a six-month period is
expected to be “qualifying income” and therefore was not offered to the
Partnership, but subsequently 50% or more of the income expected to be
generated from the operation of such tank barge in a six-month period is
expected to be “qualifying income,” then at such time Executive shall offer to
the conflicts committee of the GP Board the right to have the Partnership
acquire such tank barge (or Executive’s interest therein) at fair market value.


 


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(c)           If
any portion of the restrictions set forth in this Section 9 should, for any
reason whatsoever, be declared invalid by a court of competent jurisdiction,
the validity or enforceability of the remainder of such restrictions shall not
thereby be adversely affected.


 


(d)           Executive
acknowledges that the Parent has invested substantial monies in connection with
the acquisition of the Business (as defined in the Asset Purchase Agreement,
dated as of July 18, 2002, among Amerada Hess Corporation, United States
Shipping LLC (f/k/a US Shipping Acquisition LLC), a subsidiary of Parent, the
Company and the other signatories thereto (the “Purchase Agreement”))
from Hess and that the provisions of this Section 9 were a material inducement
to the US Shipping Group to consummate the transactions contemplated by the
Purchase Agreement (the “Acquisition”), and that the US Shipping Group
would not have consummated the Acquisition but for the agreements and covenants
contained herein.  Executive further
acknowledges that the territorial and time limitations set forth in this
Section 9 are reasonable and properly required for the adequate protection of
the business of the US Shipping Group. 
Executive hereby waives, to the extent permitted by law, any and all
right to contest the validity of this Section 9 on the ground of breadth of its
geographic or product and service coverage or length of term.  In the event any such territorial or time
limitation is deemed to be unreasonable by a court of competent jurisdiction,
Executive agrees to the reduction of the territorial or time limitation to the
area or period which such court shall deem reasonable.


 


(e)           The
existence of any claim or cause of action by Executive against the Company or
any other member of the US Shipping Group shall not constitute a defense to the
enforcement by the US Shipping Group of the foregoing restrictive covenants,
but such claim or cause of action shall be litigated separately.


 


10.           INVENTIONS
AND DISCOVERIES.


 


(a)           Executive
shall promptly and fully disclose to the Company, with all necessary detail for
a complete understanding of the same, all developments, know-how, discoveries,
inventions, improvements, concepts, ideas, writings, formulae, processes and
methods (whether copyrightable, patentable or otherwise) made, received,
conceived, developed, acquired or written during working hours, or otherwise,
by Executive (whether or not at the request or upon the suggestion of the
Company) during the period of his employment with the Company, solely or
jointly with others, using the US Shipping Group’s resources, or relating to
any current or proposed business or activities of the US Shipping Group known
to him as a consequence of his employment or the rendering of advisory and
consulting services hereunder (collectively, the “Subject Matter”).


 


(b)           Executive
hereby assigns and transfers, and agrees to assign and transfer, to the Company
all his rights, title and interest in and to the Subject Matter, and Executive
further agrees to deliver to the Company any and all drawings, notes,
specifications and data relating to the Subject Matter, and to execute,
acknowledge and deliver all such further papers, including applications for
trademarks, copyrights or patents, as may be necessary to obtain trademarks,
copyrights and patents for any thereof in any and all countries and to vest
title thereto in the Company.  Executive
shall assist the Company in obtaining such trademarks, copyrights or patents
during the term of this Agreement, and any time thereafter on reasonable notice
and at mutually convenient times, and Executive agrees to testify in any
prosecution or litigation involving any of the Subject Matter; provided,
however, that following termination of employment Executive shall be reasonably
compensated for his time and reimbursed his reasonable out-of-pocket expenses
incurred in rendering such assistance or giving or preparing to give such
testimony if it is required after the Non-Competition Period.


 


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11.           NON-DISCLOSURE
OF CONFIDENTIAL INFORMATION.


 


(a)           Executive
shall not, during the term of this Agreement, or at any time following
expiration or termination of this Agreement, directly or indirectly, disclose
or permit to be known (other than as is required in the regular course of his
duties (including without limitation disclosures to the Company’s advisors and
consultants) or as is required by law (in which case Executive shall give the
Company prior written notice of such required disclosure) or with the prior
written consent of the Company’s Chief Executive Officer), to any person, firm
or corporation, any confidential information acquired by him during the course
of, or as an incident to, his employment hereunder, relating to the US Shipping
Group, any client of the US Shipping Group, or any corporation, partnership or
other entity owned or controlled, directly or indirectly, by any of the
foregoing, or in which any of the foregoing has a beneficial interest,
including, but not limited to, the business affairs of each of the foregoing.  Such confidential information shall include,
but shall not be limited to, proprietary technology, trade secrets, patented
processes, research and development data, know-how, market studies and
forecasts, competitive analyses, pricing policies, employee lists, personnel
policies, the substance of agreements with customers, suppliers and others,
marketing or dealership arrangements, servicing and training programs and
arrangements, customer lists and any other documents embodying such
confidential information.  This confidentiality
obligation shall not apply to any confidential information which is known to
Executive as a result of his professional business experience prior to the date
hereof or his involvement in the business activities set forth on Schedule A
hereof or which becomes publicly available from sources unrelated to the US
Shipping Group.


 


(b)           All
information and documents relating to the US Shipping Group as hereinabove
described (or other business affairs) shall be the exclusive property of the
Company, and Executive shall use commercially reasonable best efforts to
prevent any publication or disclosure thereof. 
Upon termination of Executive’s employment with the Company, all
documents, records, reports, writings and other similar documents containing confidential
information, including copies thereof, then in Executive’s possession or
control shall be returned and left with the Company.


 


12.           SPECIFIC
PERFORMANCE.


 


Executive agrees that if he breaches, or threatens to commit a breach
of, any of the provisions of Sections 9, 10 or 11 (the “Restrictive
Covenants”), the Company shall have, in addition to, and not in lieu of,
any other rights and remedies available to the Company under law and in equity,
the right to injunctive relief and/or to have the Restrictive Covenants
specifically enforced by a court of competent jurisdiction, without the posting
of any bond or other security, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to the US
Shipping Group and that money damages would not provide an adequate remedy to
the Company.  Notwithstanding the
foregoing, nothing herein shall constitute a waiver by Executive of his right
to contest whether a breach or threatened breach of any Restrictive Covenant
has occurred.


 


13.           AMENDMENT
OR ALTERATION.


 


No amendment or alteration of the terms of this Agreement shall be
valid unless made in writing and signed by both of the parties hereto.


 


14.           GOVERNING
LAW.


 


This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey, including choice of law rules, applicable
to agreements made and to be performed therein.


 


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15.           ALTERNATIVE
DISPUTE RESOLUTION.


 


Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be settled by arbitration in New York City by one
(1) arbitrator in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.  Each party shall bear its own costs
(including legal fees and expenses) in the arbitration unless the arbitrator
determines otherwise.  Nothing in this
paragraph shall preclude any party from seeking a preliminary injunction or
other provisional relief, either prior to, during or after invoking the
procedures in this paragraph, if in its judgment such action is necessary to
avoid irreparable damage or to preserve the status quo.


 


16.           SEVERABILITY.


 


The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect.


 


17.           WITHHOLDING.


 


The Company may deduct and withhold from the payments to be made to
Executive hereunder any amounts required to be deducted and withheld by the
Company under the provisions of any applicable statute, law, regulation or
ordinance now or hereafter enacted.


 


18.           NOTICES.


 


Any notices required or permitted to be given hereunder shall be
sufficient if in writing, and if delivered by hand or courier, or sent by
certified mail, return receipt requested, to the addresses set forth above or
such other address as either party may from time to time designate in writing
to the other, and shall be deemed given as of the date of the delivery or at
the expiration of three days in the event of a mailing.


 


19.           COUNTERPARTS
AND FACSIMILE SIGNATURES.


 


This Agreement may be signed in counterparts with the same effect as if
the signatures to each counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this Agreement.  For purposes of this Agreement, a facsimile
copy of a party’s signature shall be sufficient to bind such party.


 


20.           WAIVER
OR BREACH.


 


It is agreed that a waiver by either party of a breach of any provision
of this Agreement shall not operate, or be construed, as a waiver of any
subsequent breach by that same party.


 


21.           ENTIRE
AGREEMENT AND BINDING EFFECT.


 


This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof, supersedes all prior and contemporaneous
agreements, both written and oral, between the parties with respect to the
subject matter hereof, and may be modified only by a written instrument signed
by each of the parties hereto.  This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, heirs, distributors, successors and
assigns, provided, however, that Executive shall not be entitled to assign or
delegate any of his rights or obligations 


 


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hereunder without the prior written consent of the Company.  It is intended that Sections 9, 10, 11 and 12
benefit each of the Company and each other member of the US Shipping Group,
each of which is entitled to enforce the provisions of Sections 9, 10, 11 and 12.


 


22.           SURVIVAL.


 


Except as otherwise expressly provided herein, the termination of
Executive’s employment hereunder or the expiration of this Agreement shall not
affect the enforceability of Sections 9, 10, 11 and 12 hereof.


 


23.           FURTHER
ASSURANCES.


 


The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this
Agreement.


 


24.           CONSTRUCTION
OF AGREEMENT.


 


No provision of this Agreement or any related document shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party
having or being deemed to have structured or drafted such provision.


 


25.           HEADINGS.


 


The Section headings appearing in this Agreement are for the purposes
of easy reference and shall not be considered a part of this Agreement or in
any way modify, demand or affect its provisions.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date and year first above
written.


 


	
   

  	
  USS VESSEL MANAGEMENT LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul B. Gridley

  
	
   

  	
   

  	
   

  	
  Name: Paul B. Gridley

  
	
   

  	
   

  	
   

  	
  Title: Chairman and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Jeffrey M. Miller

  
	
   

  	
  Jeffrey M. Miller

  



 


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SCHEDULE A


 


Mr. Miller has ownership interests in and management responsibilities
for the following corporations:


 


1.             Maritrac, LLC – A
company developing marine security and vessel tracking systems.


 


2.             USS Holding, LLC
(f/k/a United States Shipping LLC) – Holds interests in the chemical barge Sea Crest.


 


3.             USS Great Lakes LLC
– Holds interest in the chemical barge Robert F. Deegan.


 


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