EXHIBIT 10.29
[EXECUTIVE TEMPLATE]
AMERICAN COMMERCIAL LINES INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made as of this _____
day of ________________, 20_____ (the "Grant Date") between American Commercial
Lines Inc., a Delaware corporation (the "Company"), and [______________] (the
"Optionee"). Capitalized terms used herein that are not otherwise defined shall
have the meaning ascribed to them in the American Commercial Lines Inc. 2005
Stock Incentive Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company desires to provide the Optionee with the
opportunity to purchase shares of its common stock, par value $0.01 per share
("Common Stock"), in accordance with the terms of the Plan; and
WHEREAS, the Optionee wishes to acquire the right to purchase shares of
Common Stock granted hereby.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter contained, the parties hereto mutually
covenant and agree as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee the
option to purchase all or part of an aggregate of [____________] shares of
Common Stock, on the terms and conditions set forth in the Plan, subject to the
vesting, exercise and other requirements set forth in this Agreement, to the
extent not inconsistent with the Plan (the "Option").
2. PURCHASE PRICE. The per share purchase price of the shares of
Common Stock issuable upon exercise of the Option shall be $[________], which
the Committee has determined is equal to 100% of the Fair Market Value (as
defined in the Plan) of a share of Common Stock on the Grant Date.
3. NONQUALIFIED STOCK OPTION. The Option is not intended to
qualify as an incentive stock option under Section 422 of the Internal Revenue
Code of 1986, as amended.
4. TERM. The term of the Option shall expire as of the earliest
of the following:
(a) the date that is ten (10) years from the Grant Date;
(b) to the extent the Option is vested on the date of
such termination, the date that is one (1) day following the date that the
Optionee's employment with the Company, or any Subsidiary or Affiliate, is
terminated for Cause, as defined [in the Plan] [in the Employment Agreement
between the Optionee and the Optionee (the "Employment Agreement")];
(c) to the extent the Option is vested on the date of
such termination, the date that is ninety (90) days after the Optionee's
employment with the Company, or any Subsidiary or Affiliate, is terminated other
than (i) for Cause or (ii) upon the Optionee's death, Disability or Retirement,
as defined in the Plan;
(d) to the extent the Option is vested on the date of
such termination, the date that is twelve (12) months after the Optionee's
employment with the Company, or any Subsidiary or Affiliate, is terminated as a
result of the Optionee's Disability, as defined in the Plan;
(e) to the extent the Option is vested on the date of
such death, the date that is twelve (12) months after the Optionee dies while
employed by the Company, or any Subsidiary or Affiliate; or
(f) to the extent the Option is vested on the date of
such Retirement, the date that is twelve (12) months after the date the
Optionee's employment with the Company, or any Subsidiary or Affiliate, is
terminated as a result of the Optionee's Retirement, as defined in the Plan
(provided that if the Optionee dies within such twelve (12) month period, any
such unexercised Option shall continue to be exercisable for twelve (12) months
from the date of such death).
In the event of termination of the Optionee's employment for Cause, the Optionee
shall forfeit all rights hereunder with respect to any vested and non-vested
Options as of the date of such termination. Subject to the foregoing terms of
this Section 4, if the Optionee's employment terminates for any reason other
than Cause, the Optionee shall forfeit all rights hereunder with respect to any
non-vested Options as of the date of such termination, including the right to
purchase shares of Common Stock under the Option.
5. VESTING.
(a) Subject to any forfeiture provisions in this
Agreement or in the Plan, the Optionee shall become vested in the Options
granted hereunder as follows:
PERCENTAGE VESTED: VESTING DATE:
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33% 1st Anniversary of Grant Date
33% 2nd Anniversary of Grant Date
34% 3rd Anniversary of Grant Date
(b) Notwithstanding the vesting schedule contained in
Section 5(a) hereof, in the event of a "Change in Control", then the Optionee
shall become 100% vested in the Option following such "Change in Control" of the
Company. For purposes of this Agreement, a "Change in Control" shall mean the
occurrence of any of the following events, each of which shall be determined
independently of the others: (i) any "Person" (as hereinafter defined), other
than a holder of at least 10% of the outstanding voting power of the Company as
of the date of this Agreement, becomes a "beneficial owner" (as such term is
used in Rule 13d-3 promulgated
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under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of a
majority of the stock of the Company entitled to vote in the election of
directors of the Company; (ii) individuals who are Continuing Directors of the
Company (as hereinafter defined) cease to constitute a majority of the members
of the Board; (iii) stockholders of the Company adopt and consummate a plan of
complete or substantial liquidation or an agreement providing for the
distribution of all or substantially all of the assets of the Company; (iv) the
Company is a party to a merger, consolidation, other form of business
combination or a sale of all or substantially all of its assets, with an
unaffiliated third party, unless the business of the Company following
consummation of such merger, consolidation or other business combination is
continued following any such transaction by a resulting entity (which may be,
but need not be, the Company) and the stockholders of the Company immediately
prior to such transaction hold, directly or indirectly, at least a majority of
the voting power of the resulting entity; provided, however, that a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) shall not constitute a Change in Control; (v) there is a
Change in Control of the Company of a nature that is reported in response to
item 5.01 of Current Report on Form 8-K or any similar item, schedule or form
under the Exchange Act, as in effect at the time of the change, whether or not
the Company is then subject to such reporting requirements; provided, however,
that for purposes of this Agreement a Change in Control shall not be deemed to
occur if the Person or Persons deemed to have acquired control is a holder of at
least 10% of the outstanding voting power of the Company as of the date of this
Agreement; or (vi) the Company consummates a transaction which constitutes a
"Rule 13e-3 transaction" (as such term is defined in Rule 13e-3 of the Exchange
Act) prior to the termination or expiration of this Agreement.
(c) In the event of a Rule 13e-3 transaction, then
effective coincident with the consummation of such Rule 13e-3 transaction, all
non-vested Options issued hereunder shall immediately vest and be exercisable by
Optionee notwithstanding the vesting schedules set forth in Section 5(a) hereof;
provided, however, that notwithstanding the foregoing, in connection with the
consummation of such Change in Control or Rule 13e-3 transaction, all such
non-vested Options then held by Optionee shall be deemed to vest and become
exercisable at such time in order to permit Optionee to participate in such
transaction.
(d) For purposes of this Section 5, "Continuing
Directors" shall mean the members of the Board on the Grant Date, provided that
any person becoming a member of the Board subsequent to such date whose election
or nomination for election was supported by at least a majority of the directors
who then comprised the Continuing Directors shall be considered to be a
Continuing Director; and the term "Person" is used as such term is used Sections
13(d) and 14(d) of the Exchange Act.
(e) [Notwithstanding the vesting schedule contained in
Section 5(a) hereof, in the event of a termination of employment by the Optionee
with Good Reason (as defined in the Employment Agreement), by the Company
without Cause (as defined in the Employment Agreement), or due to death or due
to Disability, then the Optionee shall become 100% vested in the Option as of
the date of such termination.]
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6. EXERCISE. The Optionee shall not be entitled to exercise the
Option until it is vested. Subject to the provisions of Section 4, the Option
may be exercised only while the Optionee is employed by the Company or an
Affiliate or Subsidiary of the Company. In no event shall the Option be
exercisable after the expiration date of the Option.
7. NONTRANSFERABILITY. The Option shall not be transferable or
assignable other than by will or the laws of descent and distribution, or
pursuant to a qualified domestic relations order as described in Section 206(d)
of the Employee Retirement Income Security Act of 1974, as amended, subject to
Article 3. Any other attempt to assign, transfer, pledge, hypothecate, dispose
of or subject the Option to execution, attachment or similar process shall be
null and void and without effect. The Option may be exercised during the
lifetime of the Optionee only by the Optionee, his guardian or his legal
representative, or by an alternate payee pursuant to a qualified domestic
relations order.
8. METHOD OF EXERCISING OPTIONS.
(a) Subject to the terms and conditions of this
Agreement, the Option may be exercised by written notice delivered to the
Company or its designated representative in the manner and at the address for
notices set forth in Section 11 hereof. Such notice shall state that the Option
is being exercised thereby and shall specify the number of shares of Common
Stock involved. The notice shall be signed by the person or persons exercising
the Option and shall be accompanied by payment in full of the Option price for
such shares of Common Stock, such payment to be made in (i) cash, as described
in Section 8(c) of the Plan; (ii) subject to Section 8(c) of the Plan, that
number of Mature Shares of unrestricted Common Stock, or vested Restricted
Stock, which has an aggregate Fair Market Value as of the date of exercise equal
to the aggregate exercise price for all of the shares of Common Stock subject to
such exercise; (iii) shares of Common Stock which would otherwise be delivered
pursuant to the exercise of the Option having an aggregate Fair Market Value,
determined as of the date of exercise, equal to the amount necessary to satisfy
such obligation, provided that the Committee determines that such withholding of
shares does not cause the Company to recognize an increased compensation expense
under applicable accounting principles; (iv) a combination of methods (i), (ii)
and (iii); (v) to the extent permitted by applicable law, pursuant to
independently-arranged broker assisted "cashless" exercise with third party
brokers unrelated to the Company; or (vi) other means authorized by the
Committee in accordance with Section 8(c) of the Plan. If the tender or
withholding of shares of Common Stock as payment of the Option price would
result in the issuance of fractional shares of Common Stock, the Company shall
instead return the balance in cash or by check to the Optionee. If the Option is
exercised by any person or persons other than the Optionee, the notice described
in this Section 8(a) shall be accompanied by appropriate proof (as determined by
the Committee) of the right of such person or persons to exercise the Option
under the terms of the Plan and this Agreement. The Company shall issue and
deliver, in the name of the person or persons exercising the Option, a
certificate or certificates representing such shares as soon as practicable
after notice and payment are received and the exercise is approved.
(b) The Option may be exercised in accordance with the
terms of the Plan and this Agreement with respect to any whole number of shares
subject to the Option, but in no event
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may an Option be exercised as to fewer than one hundred (100) shares at any one
time, or the remaining shares covered by the Option if less than two hundred
(200).
(c) The Optionee shall have no rights of a stockholder
with respect to shares of Common Stock to be acquired by the exercise of the
Option until the date of issuance of a certificate or certificates representing
such shares. Except as otherwise expressly provided in the Plan, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the date such stock certificate is issued. All shares of Common Stock
purchased upon the exercise of the Option as provided herein shall be fully paid
and non-assessable.
(d) The Optionee agrees that no later than the date as of
which an amount first becomes includible in his gross income for federal income
tax purposes with respect to the Option, the Optionee shall pay to the Company,
or make arrangements satisfactory to the Company regarding the payment of, any
federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount. Withholding obligations may be settled
with Common Stock, including Common Stock that is acquired upon exercise of the
Option, having an aggregate Fair Market Value not in excess of the amount
determined by applying the minimum statutory withholding rate. The obligations
of the Company under this Agreement and the Plan shall be conditional on such
payment or arrangements, and the Company, its Affiliates and Subsidiaries shall,
to the extent permitted by law, have the right to deduct any such taxes from any
payment otherwise due to the Employee.
9. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. Subject to any
required action by the stockholders of the Company and the terms of the Plan,
if, during the term of this Agreement, there shall be any increase or decrease
in the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock or any other increase or decrease in the number of issued shares of
Common Stock effected without receipt of consideration by the Company (as
defined in Section 14 of the Plan), the Committee may, in its sole discretion,
make an appropriate and equitable adjustment in the aggregate number, kind and
option price of shares subject to this Option; provided, however, that in no
event shall the Option price be adjusted below the par value of a share of
Common Stock, nor shall any fraction of a share be issued upon the exercise of
the Option.
10. CONDITIONS UPON ISSUANCE OF OPTION. As a condition to the
exercise of the Option, the Company may require the Optionee to (i) represent
and warrant at the time of any such exercise that the Common Stock is being
purchased only for investment and without any present intention to sell or
distribute such shares if, in the opinion of legal counsel for the Company, such
a representation is required by any relevant provision of law; and (ii) enter
into a lock-up or similar agreement with the Company with respect to such shares
prohibiting, for up to ninety (90) days, the disposition of such shares.
11. NOTICES. Each notice relating to this Agreement shall be in
writing and shall be sufficiently given if delivered by registered or certified
mail, or by a nationally recognized overnight delivery service, with postage or
charges prepaid, to the address hereinafter provided in this Section 11. Any
such notice or communication given by first-class mail shall be deemed to
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have been given two business days after the date so mailed, and such notice or
communication given by overnight delivery service shall be deemed to have been
given one business day after the date so sent, provided such notice or
communication arrives at its destination. Each notice to the Company shall be
addressed to it at its offices at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxxx,
Xxxxxxx 00000 (attention: Senior Vice President, Law and Administration), with a
copy to the Chairman of the Compensation Committee of the Company or to such
other designee of the Company. Each notice to the Optionee or other person or
persons then entitled to exercise the Option shall be addressed to the Optionee
or such other person or persons at the Optionee's address shown on the signature
page hereof.
12. LIMITATIONS. Nothing contained in this Agreement shall be
construed as conferring upon the Optionee the right to continue as an Employee,
or shall affect the right of the Company, in its sole discretion, to terminate
the Optionee's employment at any time, with or without cause.
13. INCORPORATION OF THE PLAN. Notwithstanding the terms and
conditions contained herein, this Agreement shall be subject to and governed by
all the terms and conditions of the Plan, which is hereby incorporated by
reference. In the event of any discrepancy or inconsistency between the terms
and conditions of this Agreement and of the Plan, the terms and conditions of
the Plan shall control.
14. INTERPRETATION. The interpretation and construction of any
terms or conditions of the Plan, or of this Agreement or other matters related
to the Plan by the Committee, shall be final and conclusive.
15. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement or the application
thereof to any party or circumstance shall be prohibited by or be invalid under
applicable law, then such provision shall be ineffective to the minimal extent
of such provision or the remaining provisions of this Agreement or the
application of such provision to other parties or circumstances.
16. ENFORCEABILITY. This Agreement shall be binding upon the
Optionee and such Optionee's estate, personal representative and beneficiaries.
17. PRONOUNS, SINGULAR/PLURAL. Any use of any masculine pronoun
shall include the feminine and vice-versa, and any use of a singular shall
include the plural or vice-versa, as the context and facts may require.
18. COUNTERPART EXECUTION. This Agreement may be executed in
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute the entire document.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by
its officer thereunto duly authorized, and the Optionee has executed this
Agreement all as of the day and year first above written.
AMERICAN COMMERCIAL LINES INC.
By:
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Its:
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OPTIONEE: [____________]
OPTIONEE'S ADDRESS:
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