EXHIBIT 10.28
[TEMPLATE]
AMERICAN COMMERCIAL LINES INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (this "Agreement") is made and
entered into as of this ______ day of _____________________, 20____ (the "Grant
Date") by and between American Commercial Lines Inc., a Delaware corporation
(the "Company"), and [_______________________________] ("Participant"), pursuant
to the American Commercial Lines Inc. 2005 Stock Incentive Plan (the "Plan").
This Agreement and the award contained herein is subject to the terms and
conditions set forth in the Plan, which are incorporated by reference herein,
and the following terms and conditions:
1. RECEIPT OF PLAN; AWARD OF RESTRICTED STOCK; CONTINGENCY.
Participant acknowledges receipt of a copy of the Plan. In consideration for the
prior and continued service of Participant as [_____________________________] of
the Company, the Company hereby awards to Participant, subject to the further
terms and conditions set forth in this Agreement, [_____________] shares (the
"Restricted Stock") of its common stock, $0.01 par value per share (the "Common
Stock"), as of the Grant Date.
2. RIGHTS OF STOCKHOLDER. Participant shall have all of the
rights of a stockholder with respect to the shares of Restricted Stock
(including the right to vote the shares of Restricted Stock and the right to
receive dividends with respect to the shares of Restricted Stock), except as
provided in Section 3 and Section 5 hereof.
3. RESTRICTIONS ON TRANSFER. Except as otherwise provided in this
Agreement, Participant may not sell, transfer, assign, pledge, encumber or
otherwise dispose of any of the shares of Restricted Stock or the rights granted
hereunder (any such disposition or encumbrance being referred to herein as a
"Transfer"). Any Transfer or purported Transfer by Participant of any of the
shares of Restricted Stock shall be null and void and the Company shall not
recognize or give effect to such Transfer on its books and records or recognize
the person to whom such purported Transfer has been made as the legal or
beneficial holder of such shares. The shares of Restricted Stock shall not be
subject to sale, execution, pledge, attachment, encumbrance or other process and
no person shall be entitled to exercise any rights of Participant as the holder
of such Restricted Stock by virtue of any attempted execution, attachment or
other process until the restrictions imposed herein on the Transfer of the
shares of Restricted Stock shall lapse as provided in Section 4 hereof. All
certificates representing the shares of Restricted Stock shall have endorsed
thereon the following legend (in addition to any other legends that are
customary or required on certificates representing shares of the Common Stock):
"THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF
STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS
(INCLUDING FORFEITURE) OF THE AMERICAN COMMERCIAL LINES INC. 2005 STOCK
INCENTIVE PLAN AND AN AWARD AGREEMENT FOR RESTRICTED STOCK ENTERED INTO
BETWEEN THE REGISTERED OWNER AND AMERICAN
COMMERCIAL LINES INC. COPIES OF SUCH PLAN AND AWARD AGREEMENT ARE ON
FILE AT THE OFFICE OF THE SECRETARY OF AMERICAN COMMERCIAL LINES INC."
Until such restrictions have lapsed, any certificates representing any
shares of Restricted Stock shall be held in custody by the Company, and
Participant shall, as a condition of any award of Restricted Stock, have
delivered a stock power, endorsed in blank, relating to the Common Stock covered
by such award. Participant may request the removal of such restricted stock
legend from certificates representing any shares of Restricted Stock as to which
the restrictions imposed herein on the transfer thereof shall have lapsed as
provided in Section 4 hereof. Such request shall be in writing to the Senior
Vice President, Law and Administration, of the Company with a copy to the
Chairman of the Compensation Committee of the Company.
4. LAPSE OF RESTRICTIONS AND FORFEITURE. Subject to Section 4(b)
hereof, the restrictions on transfer imposed on the shares of Restricted Stock
by Section 3 shall lapse with respect to the shares of Restricted Stock and
Participant will vest, or gain actual "ownership" of the shares of Restricted
Stock in accordance with the terms of Section 4(a) hereof.
(a) Of the [__________] shares of Restricted Stock
granted to Participant, the restrictions on the specified portions shall lapse
and such portion of the shares shall become fully vested and not subject to
forfeiture to the Company as follows: one-third on the first anniversary of the
Grant Date, one-third on the second anniversary of the Grant Date, and one-third
on the third anniversary of the Grant Date.
(b) Notwithstanding anything to the contrary in Section
4(a), in the event that prior to the lapse of restrictions on transfer pursuant
to Section 4(a), Participant's relationship as a Service Provider is terminated
by Participant for other than Good Reason, as defined in the employment
agreement between Participant and the Company (the "Employment Agreement"), due
to Cause as defined in the Employment Agreement, or due to the end of the term
of the Employment Agreement, Participant shall forfeit, on the date on which
such relationship is terminated, all of the shares of Restricted Stock as to
which the restrictions on transfer imposed thereon by Section 3 hereof shall not
have lapsed prior to such date. In the event that prior to the lapse of
restrictions on transfer pursuant to Section 4(a), Participant's relationship as
a Service Provider is terminated by Participant for Good Reason, by the Company
without Cause (as defined in the Employment Agreement), due to death or due to
Disability, all of the restrictions on the transfer of the shares of Restricted
Stock shall lapse and the shares shall be fully vested.
(c) Notwithstanding anything to the contrary in Section
4(a) hereof, in the event of a Change in Control, the restrictions on transfer
imposed by Section 3 on the shares of Restricted Stock shall lapse. 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 Grant Date, becomes a
"beneficial owner" (as such term is used in Rule 13d-3 promulgated 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.
(d) In the event of a Rule 13e-3 transaction, then
effective coincident with the consummation of such Rule 13e-3 transaction, the
restrictions on transfer imposed by Section 3 on the shares of Restricted Stock
shall lapse; provided, however, that notwithstanding the foregoing, in
connection with the consummation of such Change in Control or Rule 13e-3
transaction, all such unvested shares of Restricted Stock then held by
Participant shall be deemed to vest and become exercisable at such time in order
to permit Participant to participate in such transaction.
(e) For purposes of this Section 4, "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.
5. TRANSFERABILITY. Notwithstanding anything contained in this
Agreement to the contrary, shares of Restricted Stock are not transferable or
assignable by Participant until the restrictions thereon have lapsed.
6. ADJUSTMENT PROVISIONS. If, during the term of this Agreement,
there shall be any merger, reorganization, consolidation, recapitalization,
stock dividend, stock split, rights offering or extraordinary distribution with
respect to the Common Stock, or other change in corporate structure affecting
the Common Stock, the Committee shall make or cause to be made an appropriate
and equitable substitution, adjustment or treatment with respect to the
Restricted Stock, including a substitution or adjustment in the aggregate number
or kind of shares subject to this Agreement, notwithstanding that the Restricted
Stock is subject to the restrictions on transfer
imposed by Section 3 above. Any securities, awards or rights issued pursuant to
this Section 6 shall be subject to the same restrictions as the underlying
Restricted Stock to which they relate.
7. TAX WITHHOLDING. As a condition precedent to the receipt of
any shares of Restricted Stock hereunder, Participant agrees to pay to the
Company, at such times as the Company shall determine, such amounts as the
Company shall deem necessary to satisfy any withholding taxes due on income that
Participant recognizes as a result of the lapse of the restrictions imposed by
Section 3 hereof on the shares of Restricted Stock. 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 Participant.
8. REGISTRATION. This award of Restricted Stock is subject to the
condition that if at any time the Board or Compensation Committee shall
determine, in its discretion, that the listing of the shares of Common Stock
subject hereto on any securities exchange, or the registration or qualification
of such shares under any federal or state law, or the consent or approval of any
regulatory body, shall be necessary or desirable as a condition of, or in
connection with, the grant, receipt or delivery of shares hereunder, such grant,
receipt or delivery will not be effected unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board or Compensation
Committee. The Company agrees to make every reasonable effort to effect or
obtain any such listing, registration, qualification, consent or approval.
9. RIGHTS OF PARTICIPANT. In no event shall this award of
Restricted Stock or the other provisions hereof or the acceptance by Participant
of this award of Restricted Stock interfere with or limit in any way the right
of the Company, any of its Affiliates or Subsidiaries to terminate Participant's
relationship as Service Provider at any time, nor confer upon Participant any
right to continue as Service Provider for any period of time or to continue his
or her present or any other rate of compensation.
10. CONSTRUCTION.
(a) SUCCESSORS. This Agreement and all the terms and
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives, heirs and successors,
except as expressly herein otherwise provided.
(b) ENTIRE AGREEMENT; MODIFICATION. This Agreement
contains the entire understanding between the parties with respect to the
matters referred to herein. Subject to Section 16(a) of the Plan, this Agreement
may be amended by the Board or Compensation Committee at any time.
(c) CAPITALIZED TERMS; HEADINGS; PRONOUNS; GOVERNING LAW.
Capitalized terms used and not otherwise defined herein are deemed to have the
same meanings as in the Plan. The descriptive headings of the respective
sections and subsections of this Agreement are inserted for convenience of
reference only and shall not be deemed to modify or construe the provisions
which follow them. Any use of any masculine pronoun shall include the feminine
and vice-versa and any use of a singular, the plural and vice-versa, as the
context and facts may
require. The construction and interpretation of this Agreement shall be governed
in all respects by the laws of the State of Delaware.
(d) 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
10. Any such notice or communication given by first-class mail shall be deemed
to 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 Participant shall be addressed to
Participant at Participant's address shown on the signature page hereof.
(e) 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 invalid under
applicable law, 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.
(f) 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.
AMERICAN COMMERCIAL LINES INC.
By:
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Title:
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Accepted this ___ day of
___________, 2005.
PARTICIPANT:
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[_______________________]
PARTICIPANT'S ADDRESS:
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