EXHIBIT 10.24
AMERICAN COMMERCIAL LINES INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (this "Agreement") is made and
entered into as of this 18th day of January, 2005 (the "Grant Date"), by and
between American Commercial Lines Inc., a Delaware corporation (the "Company"),
and W. Xxxxxxx Xxxxxxxx ("Participant"), pursuant to the American Commercial
Lines Inc. Equity Award Plan for Employees, Officers and Directors (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. Participant acknowledges
receipt of a copy of the Plan. In consideration for the prior and continued
service of Participant as Senior Vice President and Chief Operating Officer of
the Company and Senior Vice President and Chief Operating Officer of each of the
operating companies that are subsidiaries or controlled affiliates of the
Company, the Company hereby awards to Participant, subject to the further terms
and conditions set forth in this Agreement, 28,038 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. EQUITY
AWARD PLAN FOR EMPLOYEES, OFFICERS AND DIRECTORS 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."
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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) RESTRICTED PERIOD; LAPSE OF RESTRICTIONS AND VESTING. Of the
28,038 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 an employee of the Company is
terminated by Participant for other than for Good Reason, or due to Cause, each
as defined below, 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 an employee
of the Company is terminated by Participant for Good Reason, by the Company
without Cause, 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.
A. For purposes of this Agreement, "Cause" shall mean that
Participant has:
(i) been convicted of, or pled nolo contendere to,
a felony or crime involving moral turpitude or an indictment
for any felony or misdemeanor involving moral turpitude, if
such indictment is not discharged or otherwise resolved
within 18 months; or
(ii) committed an act of personal dishonesty or
fraud involving personal profit in connection with
Participant's employment by the Company; or
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(iii) committed a material breach of any material
covenant, provision, term, condition, understanding or
undertaking set forth in this Agreement; or
(iv) committed an act which the Board of Directors
of the Company (the "Board") has found to have involved
willful misconduct or gross negligence on the part of
Participant; or
(v) failed or refused to substantially perform the
lawful duties of his employment in any material respect; or
(vi) failed to comply with the lawful material
written rules and material policies of the Company in any
material respect, as determined by the Board;
provided, however, that no termination under clause (iii), (iv), (v) or
(vi) above shall be effective unless Participant shall have first
received written notice describing in reasonable detail the basis for
the termination and within fifteen (15) days following delivery of such
notice Participant shall have failed to cure such alleged behavior
constituting "cause"; provided, further, that this notice requirement
prior to termination shall be applicable only if such behavior or
breach is capable of being cured.
B. For purposes of this Agreement, "Good Reason" shall mean
the resignation or retirement of Participant from employment with the
Company with the consent of the Company, such consent may be given at
the Company's sole discretion. Participant shall deliver written notice
to the Company of his intention to resign or retire from employment by
the Company at least ninety (90) days prior to his expected last day of
employment by the Company. The Company shall provide notice to
Participant within thirty (30) days of its receipt of such notice
indicating whether the Company consents to Participant's resignation or
Retirement and, therefore, whether Participant's relationship as an
employee of the Company is terminated for "Good Reason."
(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, "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 defined herein), 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. For
purposes of this definition, the term "Person" is used as
such term is used in Sections 13(d) and 14(d) of the Exchange
Act;
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(ii) the individuals who are "Continuing Directors"
(as hereinafter defined) of the Company cease to constitute a
majority of the members of the Board. For purposes of this
definition, "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;
(iii) the 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) or a merger, consolidation,
other form of business combination in which the Company or
successor entity is controlled by Continuing Directors 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 or are 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, all non-vested
Restricted Stock issued hereunder shall immediately vest and be exercisable by
Participant 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
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non-vested 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.
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 (i) the lapse of the restrictions imposed by Section 3
hereof on the shares of Restricted Stock or (ii) Participant's filing of an
election pursuant to Section 83(b) of the Internal Revenue Code of 1986, as
amended, (the "Code"), with respect to 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 an employee of the Company at any time, nor confer upon
Participant any right to continue as an employee of the Company for any period
of time or to continue his or her present or any other rate of compensation.
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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(c) 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.
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(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: /s/ Xxxx X. Xxxxxxx
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Title: Senior Vice President,
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Law & Administration
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Accepted this 18th day of
January, 2005.
PARTICIPANT:
/s/ W. Xxxx Xxxxxxxx
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W. XXXX XXXXXXXX
PARTICIPANT'S ADDRESS:
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