FORM OF AMERICAN RAILCAR INDUSTRIES, INC. 2005 EQUITY INCENTIVE PLAN STOCK APPRECIATION RIGHTS AGREEMENT
Exhibit 10.67
FORM OF
AMERICAN RAILCAR INDUSTRIES, INC.
2005 EQUITY INCENTIVE PLAN
STOCK APPRECIATION RIGHTS AGREEMENT
AMERICAN RAILCAR INDUSTRIES, INC.
2005 EQUITY INCENTIVE PLAN
STOCK APPRECIATION RIGHTS AGREEMENT
Name of SARs Holder:
Grant Date: May 9, 2011
Total Number of SARs:
Exercise Price Per SAR: $24.45
SAR Term/Expiration Date: May 9, 2018
Pursuant to and in accordance with the American Railcar Industries, Inc. 2005 Equity Incentive
Plan, as amended from time to time (the “Plan”), this Stock Appreciation Rights Agreement (the
“Award Agreement” or “Agreement”) evidences the issuance to the person named above (the “SARs
Holder”) by American Railcar Industries, Inc. (the “Company”), effective as of the date set forth
above, of stock appreciation rights (the “SARs”). Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Plan.
1. Vesting Schedules.
Subject to the Plan and the other terms and conditions of this Agreement, the number and
percentage of the Total Number of SARs (as it may be adjusted from time to time) shall vest on the
respective dates indicated below:
# of Total | % of Total Number of | |||||||
Vesting Date | SARs Vested | SARs Vested | ||||||
May 9, 2012 |
33.3 | % | ||||||
May 9, 2013 |
33.3 | % | ||||||
May 9, 2014 |
33.4 | % |
These SARs shall vest equally over three years, on the first, second, and third anniversaries
of the grant date, but only if the amount of the Company’s earnings before interest, taxes,
depreciation and amortization adjusted to remove the expense or income related to stock-based
compensation and investment income or expense related to derivative and stock investment activities
(“EBITDA”) achieves the specified target amount set forth below for the fiscal year preceding the
applicable anniversary date. If the EBITDA target is not achieved for the fiscal year preceding
the applicable anniversary date, then the corresponding number and
percentage of SARs will not vest and shall be irrevocably cancelled. Each holder must further
remain employed by the Company through each anniversary of the grant date in order to vest in the
corresponding number of SARs. All SARs shall have a seven-year term.
Below are the target EBITDA amounts for the fiscal year ending on:
December 31, 2011:
December 31, 2012:
December 31, 2013:
December 31, 2012:
December 31, 2013:
At any time prior to the final determination
of awards, the Compensation Committee may, in its sole discretion, increase, decrease, or otherwise adjust performance measures,
targets, and payout ranges used hereunder, as a result of extraordinary or non-recurring events, changes in applicable accounting
rules or principles, changes in the Company’s methods of accounting, changes in applicable law, changes due to consolidation,
acquisition, or reorganization affecting the Company and its subsidiaries and affiliates; or such other material change in the
Company’s business.
2. Exercise. The SARs issued to the SARs Holder shall be exercisable by delivery of
an exercise notice in the form attached hereto as Exhibit A (the “Exercise Notice”), which
shall state the election to exercise the SARs, the number of SARs being exercised (the “Exercised
SARs”) and the SARs Holder’s agreement with respect to certain representations and agreements. The
SARs shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise
Notice. The SARs may be exercised only in accordance with the Plan and the terms of this
Agreement. Upon the exercise of any SARs, the SARs Holder shall be paid by the Company on the date
coinciding with the SARs Holder’s next regular payment date in accordance with the Company’s normal
payroll cycle. The payment will be in cash, for an amount equal to the excess, if any, of (A) the
aggregate Fair Market Value in respect of which the SARs are exercised, determined as of the time
of such exercise, by the average high and low stock price on the Exercise day, over (B) the
aggregate Exercise Price Per SAR of the SARs being exercised. No payments shall be made pursuant to
the exercise of any SARs unless the issuance and exercise of the SARs complies with applicable
laws, the Plan and this Award Agreement.
3. Adjustments. In accordance with Section 3(c) of the Plan, the total number of
SARs and the Exercise Price Per SAR shall be adjusted from time to time to reflect changes in the
Company’s capitalization and for certain other events as expressly set forth in the Plan.
4. No Rights as Stockholder. Neither the issuance of SARs nor any action taken
hereunder or thereunder or pursuant hereto or thereto shall be construed as (i) giving the SARs
Holder any equity or interest of any kind in the Company or in any assets of the Company or any of
its subsidiaries, or (ii) creating a trust of any kind or a fiduciary relationship of any kind
between the SARs Holder and the Company or any of its subsidiaries. The SARs Holder shall not
have, in respect of the SARs or otherwise, any right to acquire or receive shares of common stock
or other securities of the Company or any of its subsidiaries pursuant to the Plan or this Award
Agreement or otherwise, shall not have any right to any adjustment or change hereunder as a result
of any issuance of stock or other securities by the Company or any of its subsidiaries, and he or
she shall not be deemed for any purpose to be a shareholder of the Company or any of its
subsidiaries.
5. Termination. Any vested SARs shall be exercisable for ninety (90) days after the
SARs Holder’s employment with the Company (which for purposes of this Plan shall include employment
with the Company and its direct and indirect consolidated subsidiaries) is terminated without Cause
(as defined in the Plan); provided, however, if the employment is terminated by the
Company for Cause, the SARs shall terminate immediately. In the event of the termination of
employment of the SARs Holder with the Company for any reason whatsoever, any Unvested SARs shall
cease to exist on such date and be extinguished and be of no further
force or effect. Upon the SARs Holder’s death, any vested SARs may be exercised for a period
of twelve (12) months from the date of termination of employment. Notwithstanding anything to the
contrary in the foregoing, in no event may any SARs be exercised after the Expiration Date set
forth above or as otherwise provided in the Plan.
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6. Non-Transferable by the SARs Holder. Except by will or the laws of descent, the
SARs and all rights, title and interest therein granted hereunder are not transferable by the SARs
Holder, directly or indirectly, by sale, assignment, pledge, hypothecation, transfer or otherwise
(each a “Transfer”). Except as provided above, no Transfer of the SARs granted hereunder, whether
voluntary or involuntary, by the operation of law or otherwise, shall vest in any person or entity,
any direct or indirect title, interest or right therein whatsoever, but immediately upon any such
attempted Transfer, all SARs granted hereunder shall cease to exist and be extinguished and be of
no further force or effect.
7. No Guarantee of Continued Service. SARS HOLDER ACKNOWLEDGES AND AGREES THAT THE
VESTING OF SARS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING IN THE
RELATIONSHIP AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING ENGAGED, BEING GRANTED THIS
OPTION OR ACQUIRING SHARES HEREUNDER). SARS HOLDER FURTHER ACKNOWLEDGES AND AGREES THAT THIS
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT
CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED EMPLOYMENT FOR THE VESTING PERIOD, FOR ANY
PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH SARS HOLDER’S RIGHT OR THE COMPANY’S
RIGHT TO TERMINATE THE RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE.
8. Withholding. All amounts paid to the SARs Holder hereunder shall be subject to
normal federal, state and, if applicable, local or foreign tax withholding and deductions imposed
by any one or more federal, state, local and/or foreign governments, or pursuant to any foreign or
domestic applicable law, rule or regulation.
9. Entire Agreement; Governing Law. The Plan is incorporated herein by reference.
The Plan and this Award Agreement constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior undertakings and agreements of
the Company and SARs Holder with respect to the subject matter hereof, and may not be modified
(except as provided herein and in the Plan) adversely to the SARs Holder’s interest except by means
of a writing signed by the Company and SARs Holder. This agreement is governed by the internal
substantive laws but not the choice of law rules of the State of Delaware.
10. Confidentiality, Non-Compete and Non-Solicit. Pursuant to the terms and
conditions of the Plan, SARs Holder has executed and delivered to the Company a Confidentiality,
Non-Compete and Non-Solicit Agreement in form and substance acceptable to the Company.
11. SARs Holder Acknowledgement. Receipt of a copy of the Plan and represents that he
or she is familiar with the terms and provisions thereof, and hereby accepts this Award Agreement
subject to all of the terms and provisions thereof. XXXx Xxxxxx has reviewed the Plan and this
Award Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option and fully understands all provisions of the Award
Agreement. SARs Holder hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Compensation Committee of the Board of Directors upon any questions
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arising under the Plan or this Award Agreement. SARs Holder further agrees to notify the Company
upon any change in the residence address indicated below. A facsimile or photocopy of an executed
counterpart of this Award Agreement shall be sufficient to bind the party or parties whose
signature(s) appear thereon.
SARs Holder: | American Railcar Industries, Inc. | |||||||
By:
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By: | |||||||
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Exhibit 10.67
2005 EQUITY INCENTIVE PLAN
EXERCISE NOTICE
EXERCISE NOTICE
1. | Exercise of SARs. Effective as of today, _______________, 201_, the
undersigned (“Holder”) hereby elects to exercise ___________ SARs under and pursuant to
the 2005 Equity Incentive Plan (the “Plan”) and the Stock Appreciation Rights
Agreement dated ______________, 201__, with an Exercise Price of _________(the “Award
Agreement”). Capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Plan. |
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2. | Representations of Holder. Xxxxxx acknowledges that Xxxxxx has
received, read and understood the Plan and the Award Agreement and agrees to abide by
and be bound by their terms and conditions. |
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3. | Tax Consultation. Holder understands that Holder may suffer adverse
tax consequences as a result of Xxxxxx’s exercise of the SARs. Holder represents that
Xxxxxx has consulted with any tax consultants Holder deems advisable in connection with
the purchase or disposition of the Shares and that Holder is not relying on the Company
for any tax advice. |
[Signatures appear on next page]
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SAR Exercise Notice
Submitted by:
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Accepted by: | |||||
SARS HOLDER
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AMERICAN RAILCAR INDUSTRIES, INC. | |||||
Signature
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By | |||||
Print Name
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Title | |||||
Address: |
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