Exhibit 10.1


 


EMPLOYMENT AND RETIREMENT AGREEMENT


 


THIS
EMPLOYMENT AND RETIREMENT AGREEMENT (this “Agreement”) is effective as of the
28th day of November, 2008, by and between K-SEA TRANSPORTATION, INC. a
Delaware corporation (the “Company”), and John Nicola (“Executive”).


 


1.                                       Employment
of Executive: 
In consideration of the mutual covenants and agreements herein
contained, including Executive’s agreement to sign a release of claims as
provided in Section 16, the Company and Executive wish to establish an
Employment and Retirement Agreement retaining Executive’s services as described
herein and otherwise fixing Executive’s benefits, base salary and incentive
compensation related to such employment. 
Unless otherwise specifically provided herein, the benefits below shall
be in full satisfaction of the Company’s obligations under the terms of the
Employment Agreement effective as of January 14, 2004, between the Company
and Executive, and all applicable cash or equity incentive compensation plans
and agreements under which Executive has any rights or benefits.


 


2.                                       Definitions:


 


“Affiliates”
means with respect to any Person, any other Person that directly or indirectly
through one or more intermediaries Controls, is Controlled by or is under
common Control with, the Person in question.


 


“Annual
Performance Bonus” means Executive’s annual incentive bonus as determined by
the Committee in its discretion, including both a cash component and a grant of
Phantom Units under the LTIP.


 


“Cause” means (i) Executive’s plea of nolo contendere
or conviction of Executive by a court of competent jurisdiction of any felony
or a crime involving moral turpitude; (ii) after repeated notices and
warnings, Executive’s failure to perform his reasonably assigned duties as
reasonably determined by the supervising officer; (iii) Executive’s
material breach of any of the terms or conditions of this Agreement; (iv) Executive’s
commission of any dishonest, unethical or fraudulent act which materially
damages the reputation of the Company or any of its Affiliates; or (v) any
fraud or intentional misconduct by Executive that is a significant contributing
factor to the restatement by the Company or any of its Affiliates of all or a
portion of any financial statement.


 


“Code” means
the Internal Revenue Code of 1986, as amended.


 


“Committee”
means the compensation committee of the Board of Directors of K-Sea General
Partner GP LLC, a Delaware limited liability company and the general partner of
the general partner of the Partnership.


 


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“Competing
Business” means any business or other enterprise which engages in the marine
transportation business or otherwise competes with the Company.


 


“Control”
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.


 


“Disability”
means any physical or mental ailment or incapacity as determined by a licensed
physician agreed to by the Company and Executive (or, in the event that
Executive and the Company cannot so agree, by a licensed physician agreed upon
by a physician selected by Executive and a physician selected by the Company),
which prevents Executive from performing his duties hereunder which has
continued for a period of either (i) 90 consecutive days in any 12-month
period or (ii) 180 total days in any 12-month period, either of which can
reasonably be expected to be of permanent duration.


 


“Effective
Date” means November 28, 2008.


 


“LTIP” means
the K-Sea Transportation Partners L.P. Long-Term Incentive Plan.


 


“Partnership”
means K-Sea Transportation Partners L.P., a Delaware limited partnership.


 


“Person” means
an individual or a corporation, limited liability company, partnership, joint
venture, trust, unincorporated organization, association, firm, governmental
agency or political subdivision thereof or other entity.


 


“Phantom Unit”
shall have the meaning set forth in the LTIP.


 


“Protected
Employee” means any current or former employee of the Company during the period
in which the covenants set forth in Section 6 are in effect, but excluding
Persons who have not been employed by the Company during the eighteen-month
period preceding the date on which a determination is made regarding whether a
Person is a Protected Employee.


 


“Term” means
the period beginning with the Effective Date and ending with November 28,
2010.


 


3.                                       Term and
Extent of Services; Retirement: 
During the Term Executive shall be employed as Special Advisor to the
President.  During the Term, Executive
agrees to be retained as a part-time employee, to devote his time to the
business of the Company, as requested, and to perform to the best of his
ability and with reasonable diligence the duties and responsibilities assigned
to him by the appropriate management of the Company.  The Company and Executive anticipate that,
during the Term, Executive will perform at least 40% of his average level of
services over the 36-month period preceding the Effective Date.  At the expiration of the Term, Executive
agrees to voluntarily retire and terminate his employment with the Company and
all Affiliates.


 


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4.                                       Compensation
and Benefits:


 


(a)                                  Salary:  For the first year of the Term, Executive’s
annual base salary shall be $105,000, and for the second year of the Term, his
annual base salary shall be $75,000. 
Executive’s base salary shall be payable in accordance with the Company’s
normal payroll practices.


 


(b)                                 Benefits:
During the Term, Executive shall be eligible to participate in the Company’s
benefit plans on a basis comparable to that of other employees.


 


(c)                                  Incentive
Plans:  During the portion of the
Term that includes the Company’s 2009 fiscal year end, Executive shall be
eligible for an Annual Performance Bonus. 
For the remainder of the Term, Executive shall not participate in new
grants under the LTIP or be eligible for the Annual Performance Bonus.


 


Notwithstanding anything in the
Employee Phantom Unit Award Agreement under the LTIP or any other similar award
agreement to the contrary, all unvested Phantom Units (other than the Phantom
Units, if any, that may be awarded in October 2009 as part of Executive’s
Annual Performance Bonus) shall vest and all restrictions shall lapse according
to the following schedule, and the relevant award agreements are hereby amended
accordingly:


 


(i)            The
3,100 Phantom Units that are scheduled to vest in October 2009 shall
continue to vest in October 2009; and


 


(ii)           The
4,980 Phantom Units that are scheduled to vest in October 2010 and
thereafter shall vest on the last day of the Term.


 


(d)                                 Automobile:  As
of the Effective Date, the Company shall transfer to Executive all rights,
title and interest in the Company automobile which he is entitled to use
immediately prior to the Effective Date. 
Following the Effective Date, Executive shall be responsible for all
costs associated with such automobile, including maintenance, insurance and
operating expenses.


 


(e)                                  COBRA
Coverage:  During the first 18 months
after the date of Executive’s termination of employment at the end of the Term
pursuant to Section 3 (or, if shorter, during the period in which
Executive is eligible to elect and does elect COBRA continuation coverage under
the group health plans of the Company), the Company shall pay directly or
reimburse Executive for the COBRA cost of continued coverage under the group
health plans of the Company pursuant to Section 4980B of the Code.


 


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5.                                       Termination
of Employment: 
Should Executive’s employment terminate prior to the end of the Term,
the following provisions of this Section 5 shall govern the rights of
Executive under this Agreement:


 


(a)                                  Termination
without Cause or Due to Death or Disability: In the event Executive’s
employment terminates during the Term (i) by the Company without Cause,
and (ii) as a result of Executive’s death or Disability, Executive, or his
beneficiary or beneficiaries if applicable, shall receive, subject to the
execution of a waiver and release of claims in favor of the Company and all
Affiliates;


 


(i)            his
base salary through the date of the termination of his employment;


 


(ii)           other
benefits for which he is eligible in accordance with applicable plans or programs
of the Company;


 


(iii)          accelerated
payment of all base salary he would have been entitled to receive for the
remainder of the Term, payable in a lump sum on the date 30 days following
termination of employment;


 


(iv)          during
the first 18 months after the date of termination of employment (or, if
shorter, during the period in which Executive is eligible to elect and does
elect COBRA continuation coverage under the group health plans of the Company),
the Company shall pay directly or reimburse Executive for the COBRA cost of
continued coverage under the group health plans of the Company pursuant to Section 4980B
of the Code; and


 


(v)           all
unvested Phantom Units shall immediately vest and all restrictions thereon
shall lapse.


 


(b)                                 Termination
by the Company for Cause: In the event the Company terminates Executive’s
employment during the Term for Cause, Executive shall only be entitled to:


 


(i)            his
base salary through the date of the termination of his employment; and


 


(ii)           any
other amounts earned, accrued or owing as of the date of termination of
employment under the applicable employee benefit plans or programs of the
Company.


 


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6.                                       Confidentiality,
Return of Property, and Covenant Not to Compete:


 


(a)                                  Term
Of Restrictive Covenants.  The term
of the restrictive covenants in this Section 6 (the “Non-Compete Term”)
shall commence on the date hereof and shall terminate eighteen months after the
date of termination of Executive.  For
purposes of this Section 6, references to Company shall include all
Affiliates of the Company and the covenants contained in this Section 6
shall be enforceable against Executive by each such Affiliate as third party
beneficiaries.


 


(b)                                 Non-Competition.  During the Non-Compete Term, Executive shall
not, unless acting as an officer or employee of, or consultant to, the Company
directly or indirectly, (i) own, manage, operate, join, control or
participate in the ownership, management, operation or control of, or be
connected as an officer, director, employee, stockholder, partner, advisor,
consultant or otherwise with, or provide any financing or lease any assets to,
any entity that engages in or intends to engage in any Competing Business, or (ii) solicit,
employ, retain as a consultant, interfere with or attempt to entice away from
the Company, any Protected Employee, or (iii) solicit, interfere with or
attempt to entice away from the Company, any Person which has been or is during
the eighteen-month period preceding the date on which a determination is made a
customer of the Company or any of its subsidiaries.  Ownership of not more than 2% of the
outstanding stock of any publicly traded company shall not be a violation of
this Section 6 so long as Executive does not participate in the management
of such company.


 


(c)                                  Confidentiality.  From and after the commencement of the Term,
Executive agrees not to divulge, communicate, use to the detriment of the
Company, for Executive’s benefit or the benefit of any other Person, or misuse
in any way, in whole or in part, any proprietary or confidential information or
trade secrets related to the Company as it may exist from time to time,
including, without limitation, the Company’s trade secrets or other
intellectual property rights, personnel information, know-how, customer lists,
or other confidential or proprietary data. 
Executive acknowledges that the list of the Company’s customers as it
may exist from time to time, and the Company’s proprietary or confidential
information, and trade secrets, are valuable, special and unique assets of the
Company.  Executive acknowledges and
agrees that any information or data he has acquired on any of these matters or
items was received in confidence. 
Executive agrees to hold, as the property of the Company, all memoranda,
books, papers, letters and other data and all copies thereof or therefrom, made
by him or otherwise coming into his possession, and at any time to deliver the
same to the Company upon their demand.


 


(d)                                 Reasonable
Limitations.  Executive acknowledges
that given the nature of Executive’s employment with the Company and of the
Company’s business the covenants contained in this Section 6 contain
reasonable limitations as to time, geographical area and scope of activity to
be restrained, and do not impose a greater restraint than is necessary to
protect the legitimate business interests of the Company including, but not
limited to, the protection of confidential information.  In the event that the covenants contained in
this Section 6 shall be determined by any court of competent jurisdiction
to be unenforceable by reason of their extending for too long a period of time
or over too large a geographical area or by reason of their being too extensive
in any 


 


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other respect, they shall be interpreted to
extend only over the longest period of time for which they may be enforceable,
and/or over the largest geographical area as to which they may be enforceable
and/or to the maximum extent in all other aspects as to which they may be
enforceable, all as determined by such court in such action.


 


(e)                                  Breach
Of Covenants.  Violation of any of
the protective covenants contained herein shall constitute a breach of trust
and is grounds for immediate dismissal with cause and for appropriate legal
action by the Company for damages including reasonable attorney fees and costs,
enforcement and/or injunctive relief. 
Notwithstanding anything contained herein to the contrary, the parties
agree that both parties shall bear joint and equal responsibility for attorney
fees and costs if the Company or its Affiliates prevails in any such legal
action and that the Company shall bear sole responsibility for attorney fees
and costs if the Company does not prevail in any such legal action.


 


(f)                                    Extension
Of Non-Compete Term.  The parties
acknowledge that if Executive violates any of the protective covenants in this Section 6
and the Company bring legal action for injunctive, damages or other relief
hereunder, the Company shall, as a result of the time involved in obtaining the
relief, be deprived of the benefit of the full Non-Compete Term of these
protective covenants.  Accordingly, the
length of time for which this covenant not to compete shall be in force shall
not include any period of violation or any other period required for litigation
during which the Company seek to enforce this Section 6.


 


(g)                                 Survival
Of Protective Covenants.  Each
covenant on the part of Executive contained in this Section 6 is
independent of any other provision of this Agreement, and shall survive the
termination of Executive’s employment under this Agreement, and the existence
of any claim or cause of action of Employee against the Company, whether based
on this Agreement or otherwise, shall not prevent the enforcement based on
these covenants.


 


(h)                                 Remedies
For Breach.  Executive agrees that a
breach by him of this Section 6 shall cause irreparable harm to the
Company and that its remedies at law for any breach or threat of breach of the
provisions of this Section 6 shall be inadequate, and that it shall be
entitled to an injunction or injunctions to prevent breaches of this Section 6
and to enforce specifically the terms and provisions hereof, in addition to any
other remedy to which the Company may be entitled at law or in equity.


 


7.                                       Employment by Affiliates:  Notwithstanding any provision of this
Agreement to the contrary, for purposes of determining whether Executive has
terminated employment hereunder, “employment” means employment as an employee with
the Company or any Affiliate.


 


8.                                       Expenses:  The Company and Executive shall each be
responsible for its/his own costs and expenses, including, without limitation,
court costs and attorney’s fees, incurred as a result of any claim, action or
proceeding arising out of, or challenging the validity or enforceability of,
this Agreement or any provisions hereof.


 


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9.                                       Notices:  For purposes of this Agreement, notices and
all other communications provided for herein shall be in writing and shall be
deemed to have been duly given when personally delivered or when mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:


 


	
  If to the Company:

  	
  K-Sea Transportation Inc.

  
	
   

  	
  One Tower Center Boulevard, 17th Floor

  
	
   

  	
  East Brunswick, NJ 08816

  
	
   

  	
  Attention: Compensation Committee

  
	
   

  	
  Fax No.: (732) 339-6140

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  K-Sea General Partner GP LLC

  
	
   

  	
  One Tower Center Boulevard, 17th Floor

  
	
   

  	
  East Brunswick, NJ 08816

  
	
   

  	
  Attention: Compensation Committee

  
	
   

  	
  Fax No.: (732) 339-6140

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Baker Botts L.L.P.

  
	
   

  	
  910 Louisiana Street

  
	
   

  	
  Houston, Texas 77002

  
	
   

  	
  Attention: Sean T. Wheeler

  
	
   

  	
  Facsimile: (713) 229-7868

  
	
   

  	
   

  
	
  If to Executive:

  	
  John J. Nicola

  
	
   

  	
  2 Crescent Ave.

  
	
   

  	
  Cliffside Park, NJ 07010

  



 


or to such
other address as either party may furnish to the other in writing in accordance
herewith, except that notices of changes of address shall be effective only
upon receipt.


 


10.                                 Applicable
Law; Jurisdiction: 
Each party irrevocably submits to the exclusive jurisdiction of the
federal and state courts for the State of New Jersey located in Middlesex
County, for purposes of any action, suit or other proceeding arising out of
this Agreement or any transaction contemplated hereby.  This Agreement shall be governed by and
construed and enforced in accordance with the internal laws (as opposed to the
conflicts of laws provisions) of the State of Delaware.


 


11.                                 Settlement
of Disputes: 
Any claims, controversies, demands, disputes, or differences between the
parties hereto arising out of, or by virtue of, or in connection with, or
relating to this Agreement, Executive’s employment relationship with the
Company or any Affiliate or termination of such employment relationship (a “Dispute”)
shall be submitted to and settled by arbitration in East Brunswick, New Jersey
before a 


 


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single
arbitrator who shall be knowledgeable in the field of business law and
employment relations and such arbitration shall be in accordance with the rules of
the American Arbitration Association then in force.  The parties agree to abide by any decision
rendered as final and binding, and waive the right to submit the dispute to a
public tribunal for a jury or non-jury trial. 
The parties agree that responsibility for all fees of the arbitrator
shall be borne in the following manner:  (i) if
the Company submits a Dispute to the arbitrator and (A) the arbitrator
finds in favor of the Company, the parties will bear joint and equal
responsibility for the fees, (B) the arbitrator finds in favor of the
Executive, the Company will bear sole responsibility for the fees or (ii) if
the Executive submits a Dispute to the arbitrator and (A) the arbitrator
finds in favor of the Executive, the Company will bear sole responsibility for
the fees, (B) the arbitrator finds in favor of the Company, the Executive
will bear sole responsibility for the fees.


 


12.                                 Severability:  If a court of competent jurisdiction determines
that any provision of this Agreement is invalid or unenforceable, then the
invalidity or unenforceability of any other provision of this Agreement, and
all other provisions shall remain in full force and effect.


 


13.                                 Withholding
of Taxes:  The Company may
withhold from any benefits payable under this Agreement all federal, state,
city or other taxes as may be required pursuant to any law or governmental
regulation or ruling.


 


14.                                 No
Assignment; Successors: 
Executive’s right to receive payments or benefits hereunder shall not be
assignable or transferable, whether by pledge, creation, or a security interest
or otherwise, whether voluntary, involuntary, by operation of law or otherwise,
other than a transfer by shall or by the laws of descent or distribution, and
in the event of any attempted assignment or transfer contrary to this Section 14,
the Company shall have no liability to pay any amount so attempted to be
assigned or transferred.  This Agreement
shall inure to the benefit of and be enforceable by Executive’s personal or
legal representatives, executors, administrators, successors, heirs,
distributes, devises and legatees.


 


The Company
may assign its rights and obligations under this Agreement to any
Affiliate.  This Agreement shall be binding
upon and inure to the benefit of the Company, its successors and assigns
(including, without limitation, any company into or with which the Company may
merge or consolidate).


 


15.                                 Effect of
Prior Agreements: This Agreement contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement, severance, equity or similar benefit agreement between the Company
or any predecessor of the Company and Executive.


 


16.                                 Release of
Claims:  In consideration
for the compensation and other benefits provided pursuant to this Agreement,
Executive agrees to execute a “Waiver and Release,” a form of which is attached
hereto as Exhibit A.  Executive
acknowledges that he was given copies of this Agreement and the Waiver and
Release on October 22, 2008, and was given at least 21 days to consider
whether to sign this Agreement and the Waiver 


 


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and Release.  The Company’s obligations under this
Agreement are expressly conditioned on the execution of the Waiver and Release
contemporaneously with the execution of this Agreement, and Executive’s failure
to execute and deliver such Waiver and Release, or Executive’s revocation of
the Waiver and Release within the seven day period provided in the Release,
shall void the Company’s obligations hereunder.


 


17.                                 Section 409A.  All reimbursements and in kind benefits
provided under this Agreement shall be made or provided in accordance with Section 409A,
including, where applicable, the requirement that the amount of expenses
eligible for reimbursement, or in kind benefits provided, during a calendar
year may not affect the expenses eligible for reimbursement, or in kind
benefits to be provided, in any other calendar year, the reimbursement of an
eligible expense shall be made on or before the last day of the calendar year
following the year in which the expense is incurred, and the right to
reimbursement to in kind benefits is not subject to liquidation or exchange for
another benefit.  In the event Executive
is a “specified employee” of a publicly traded corporation for purposes of Section 409A
of the Code (as determined as of the Executive’s termination of employment
pursuant to policies adopted by the Company), any severance payments pursuant
to Section 5(a)(iii) hereof shall be delayed until the date six
months and two days following the date of Executive’s separation from service.


 


[Signature Page Follows]


 


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IN WITNESS
WHEREOF, the parties have caused this Agreement to be executed and delivered
the 20th day of November, 2008, but effective as of the day and year first
above written.


 


	
   

  	
  K-SEA TRANSPORTATION INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By 

  	
  /s/ Timothy
  J. Casey

  
	
   

  	
   

  	
  Timothy J.
  Casey

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ John J.
  Nicola

  
	
   

  	
   

  	
  John J.
  Nicola

  



 


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Exhibit A


 


K-Sea
Transportation Inc.

WAIVER AND RELEASE


 


K-Sea
Transportation Inc. has offered to pay me certain benefits (“Benefits”)
pursuant to my Employment and Retirement Agreement with K-Sea Transportation, Inc.,
effective as of November 28, 2008 (the “Agreement”), which are in addition
to any remuneration or benefits to which I am already entitled.  These Benefits were offered to me in exchange
for my agreement, among other things, to waive all of my claims against and
release K-Sea Transportation Inc. and its predecessors, successors and assigns
(collectively referred to as the “Company”), all of the affiliates (including
parents and subsidiaries) of the Company (collectively referred to as the “Affiliates”)
and the Company’s and Affiliates’ directors and officers, employees and agents,
insurers, employee benefit plans and the fiduciaries and agents of said plans
(collectively, with the Company and Affiliates, referred to as the “Corporate
Group”) from any and all claims, demands, actions, liabilities and damages
arising out of or relating in any way to my employment with or separation from
the Company or the Affiliates; provided, however, that this Waiver and Release
shall not apply to any claim or cause of action to enforce or interpret any
provision contained in the Agreement.  I
have read this Waiver and Release and the Agreement (which, together, are
referred to herein as the “Agreement Materials”) and the Agreement is
incorporated herein by reference.  The
provision of the Benefits is voluntary on the part of the Company and is not
required by any legal obligation other than the Agreement.  I choose to accept this offer.


 


I understand that signing this Waiver and
Release is an important legal act. 
I acknowledge that the Company has advised me in writing to consult
an attorney before signing this Waiver and Release.  I understand that, in order to be eligible
for Benefits, I must sign (and return to Richard P. Falcinelli, Executive
Vice President, K-Sea Transportation Inc., One Tower Center Boulevard, 17th
Floor, East Brunswick, New Jersey 08816) this Waiver and Release by 5:00 p.m.
on November 20, 2008.  I acknowledge
that I have been given at least 21 days to consider whether to sign the
Agreement and whether to execute this Waiver and Release.


 


In exchange
for the payment to me of Benefits, which are in addition to any remuneration or
benefits to which I am already entitled, I, among other things, (1) agree
not to sue in any local, state and/or federal court regarding or relating in
any way to my employment with or separation from the Company or the Affiliates,
and (2) knowingly and voluntarily waive all claims and release the
Corporate Group from any and all claims, demands, actions, liabilities, and
damages, whether known or unknown, arising out of or relating in any way to my
employment with or separation from the Company or the Affiliates, except to the
extent that my rights are vested under the terms of employee benefit plans
sponsored by the Company or the Affiliates and except with respect to such
rights or claims as may arise after the date this Waiver and Release is
executed.  This Waiver and Release
includes, but is not limited to, claims and causes of action under:  Title VII of the Civil Rights Act of 1964, as
amended (“Title VII”); the 


 


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Age Discrimination in Employment Act of 1967, as amended, including the
Older Workers Benefit Protection Act of 1990 (“ADEA”); the Civil Rights Act of
1866, as amended; the Civil Rights Act of 1991; the Americans with Disabilities
Act of 1990 (“ADA”); the Energy Reorganization Act, as amended, 42 U.S.C.
§ 5851; the Workers Adjustment and Retraining Notification Act of 1988;
the Pregnancy Discrimination Act of 1978; the Employee Retirement Income Security
Act of 1974, as amended; the Family and Medical Leave Act of 1993; the Fair
Labor Standards Act; the Occupational Safety and Health Act; claims in
connection with workers’ compensation or “whistle blower” statutes; and/or
contract, tort, defamation, slander, wrongful termination or any other state or
federal regulatory, statutory or common law. 
Further, I expressly represent that no promise or agreement which is not
expressed in the Agreement Materials has been made to me in executing this
Waiver and Release, and that I am relying on my own judgment in executing this
Waiver and Release, and that I am not relying on any statement or
representation of the Company, any of the Affiliates or any other member of the
Corporate Group or any of their agents. 
I agree that this Waiver and Release is valid, fair, adequate and
reasonable, is with my full knowledge and consent, was not procured through
fraud, duress or mistake and has not had the effect of misleading, misinforming
or failing to inform me.


 


I acknowledge
that payment of Benefits to me by the Company is not an admission by the
Company or any other member of the Corporate Group that they engaged in any
wrongful or unlawful act or that the Company or any member of the Corporate
Group violated any federal or state law or regulation. Except as provided in
the Agreement Materials, I acknowledge that neither the Company nor any
other member of the Corporate Group has promised me continued employment or
represented to me that I shall be rehired in the future.  I acknowledge that the Company and I
contemplate an unequivocal, complete and final dissolution of my employment
relationship.  I acknowledge that this
Waiver and Release does not create any right on my part to be rehired by the
Company or the Affiliates and I hereby waive any right to future employment by
the Company or any other member of the Corporate Group.


 


Both the
Company and I agree that the terms of this Waiver and Release are CONFIDENTIAL
and that any disclosure to anyone for any purpose whatsoever (save and except
disclosure to my spouse, to financial institutions as part of a financial
statement, to immediate family members and/or heirs, financial, tax and legal
advisors, outplacement, executive search and/or legal placement advisors, or as
required by law, shall be a breach of this Waiver and Release; in the event
confirmation of any such information is requested, the request should be
directed to Richard P. Falcinelli,
Executive Vice President, Administration, K-Sea Transportation Inc., One Tower
Center Boulevard, 17th Floor, East Brunswick, New Jersey 08816, by me or
my agents, representatives, heirs, spouse, employees or spokespersons. The
Company and I also agree to refrain from any criticisms or disparaging comments
about each other or in any way relating to my employment or separation and the
Company and I specifically acknowledge that our willingness to enter into this
Waiver and Release is in anticipation of our fidelity to this commitment.  The above is not intended to restrict me from
seeking or engaging in other employment and, in that connection, from making
confidential disclosure to potential employers of such facts or opinions as I
may elect to convey, nor is it intended to restrict the 


 


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Company from conducting such confidential internal communications as
may be necessary to manage this resignation in a businesslike way.


 


Should any of
the provisions set forth in this Waiver and Release be determined to be invalid
by a court, agency or other tribunal of competent jurisdiction, it is agreed
that such determination shall not affect the enforceability of other provisions
of this Waiver and Release.  I
acknowledge that this Waiver and Release and the other Agreement Materials set
forth the entire understanding and agreement between me and the Company or any
other member of the Corporate Group concerning the subject matter of this
Waiver and Release and supersede any prior or contemporaneous oral and/or
written agreements or representations, if any, between me and the Company or
any other member of the Corporate Group. 
I understand that for a period of 7 calendar days following the date
that I sign this Waiver and Release, I may revoke my acceptance of the offer,
provided that my written statement of revocation is received
on or before that seventh day by Richard P.
Falcinelli, Executive Vice President, Administration, K-Sea Transportation
Inc., One Tower Center Boulevard, 17th Floor, East Brunswick, New Jersey 08816,
facsimile: (732) 565-3696, in which
case the Waiver and Release will not become effective.  In the event I revoke my acceptance of this
offer, the Company shall have no obligation to provide me Benefits.  I understand that failure to revoke my
acceptance of the offer within 7 calendar days from the date I sign this Waiver
and Release will result in this Waiver and Release being permanent and
irrevocable.


 


I acknowledge
that I have read this Waiver and Release, have had an opportunity to ask
questions and have it explained to me and that I understand that this Waiver
and Release will have the effect of knowingly and voluntarily waiving any
action I might pursue, including breach of contract, personal injury,
retaliation, discrimination on the basis of race, age, sex, national origin, or
disability and any other claims arising prior to the date of this Waiver and
Release.  By execution of this document,
I do not waive or release or otherwise relinquish any legal rights I may have
which are attributable to or arise out of acts, omissions, or events of the
Company or any other member of the Corporate Group which occur after the date
of the execution of this Waiver and Release.


 


 


	
  John J. Nicola

  	
   

  	
   

  
	
  Employee’s Printed Name

  	
   

  	
  Company Representative

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Employee’s Signature

  	
   

  	
  Company’s Execution Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Employee’s Signature Date

  	
   

  	
  Employee’s Social Security Number

  



 


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