UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 9, 2011
AMERICAN RAILCAR INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
|
|
North Dakota
|
|
000-51728
|
|
43-1481791
|
|
|
|
|
|
|
(State or other jurisdiction
of incorporation)
|
|
(Commission File Number)
|
|
(IRS Employer Identification No.)
|
|
|
|
|
100 Clark Street
St. Charles, Missouri
|
|
63301
|
|
|
|
|
|
(Address of principal executive offices)
|
|
(Zip Code)
|
Registrant’s telephone number, including area code:
(636) 940-6000
N/A
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|
o
|
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
|
|
o
|
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
|
|
|
o
|
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
|
|
|
o
|
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
2011 Management Incentive Plan
On May 9, 2011, American Railcar Industries, Inc.’s (“ARI” or the “Company”) compensation committee
of the board of directors (the “Committee”) approved the Company’s Management Incentive Plan for
2011 (the “Incentive Plan”). The purpose of the Incentive Plan is to provide a variable component
to the total compensation package for management and executive level employees. Each of the
Company’s named executive officers is eligible to participate in the Incentive Plan. Compensation
that may be earned under the Incentive Plan will be based on a combination of factors, including a
corporate financial performance target determined by the Committee, an employee’s base salary, and
performance evaluations. The Committee retains sole discretion over all matters relating to the
Incentive Plan, including, without limitation, the decision to pay any financial awards, the amount
of financial awards, if any, the ability to increase or decrease any financial awards, and to make
changes to any performance measures or targets, and discretion over the payment of partial
financial awards in the event of employment termination. Unless otherwise approved by the
Committee, no bonuses will be paid to any named executive officer who ceases to be employed by the
Company prior to the payment date.
Stock Appreciation Rights
On May 9, 2011, the Committee granted awards of stock appreciation rights (“SARs”) to certain
employees pursuant to the Company’s 2005 Equity Incentive Plan, as amended (the “Equity Incentive
Plan”). The Committee granted an aggregate of 242,041 SARs, of which 60,232 were granted to the
Company’s named executive officers as follows:
|
|
|
|
|
|
|
Name
|
|
Position
|
|
Number of SARs
|
|
James Cowan
|
|
President and Chief Executive Officer
|
|
35,934
|
|
Dale C. Davies
|
|
Senior Vice President, Chief Financial Officer and Treasurer
|
|
15,400
|
|
Alan C. Lullman
|
|
Senior Vice President, Sales
|
|
8,898
|
These SARs will vest in three equal increments on May 9, 2012, May 9, 2013 and May 9, 2014, but
only if the amount of the Company’s adjusted EBITDA, as defined in the Stock Appreciation Rights
Agreement (“SARs Agreement”) evidencing such award, a form of which is attached hereto, achieves a
specified target for the fiscal year preceding the applicable anniversary date. 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. The SARs have a term of seven years.
The SARs will be settled in cash and have an exercise price of $24.45, the closing price of the
Company’s common stock on the date of grant. Upon the exercise of any SAR, the Company shall pay
the holder, in cash, an amount equal to the excess of the aggregate
fair market value in respect of which the SARs are being exercised, over the aggregate exercise
price of the SARs being exercised. The SARs are subject in all respects to the terms and conditions
of the Equity Incentive Plan and the SARs Agreement evidencing the grant, which contain
non-solicitation, non-competition and confidentiality provisions.
The foregoing descriptions of the Incentive Plan and the SARs do not purport to be complete and are
qualified in their entirety by reference to the full text of the Incentive Plan and the SARs
Agreement evidencing such grants. Copies of the Incentive Plan and the form of SARs Agreement are
filed herewith as Exhibits 10.66 and 10.67, respectively, and are incorporated in their entirety
herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
|
|
|
|
|
Exhibit Number
|
|
Description
|
|
|
|
|
|
Exhibit 10.66
|
|
2011 Management Incentive Plan
|
|
|
|
|
|
Exhibit 10.67
|
|
Form of 2011 Stock Appreciation Rights Agreement
|
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
|
|
Date: May 13, 2011
|
American Railcar Industries, Inc.
|
|
|
|
By:
|
/s/ Dale C. Davies
|
|
|
|
Name:
|
Dale C. Davies
|
|
|
|
Title:
|
Senior Vice President,
Chief Financial
Officer and Treasurer
|
|
EXHIBIT INDEX
|
|
|
|
|
Exhibit Number
|
|
Description
|
|
|
|
|
|
Exhibit 10.66
|
|
2011 Management Incentive Plan
|
|
|
|
|
|
Exhibit 10.67
|
|
Form of 2011 Stock Appreciation Rights Agreement
|
Exhibit 10.66
American Railcar Industries, Inc.
2011 Management Incentive Plan
I. PURPOSE & SCOPE
The purpose of the Management Incentive Plan is to provide a variable component to the total
compensation package for management and executive level employees. This “at risk” part of
total compensation encourages participating management to achieve the goals that are
important for the company.
The Plan is important to attract and retain highly qualified key employees, by providing the
opportunity to personally benefit by sharing in the results achieved for the Company. The
Plan provides a link between the performance of the Company and its management team and
encourages the behavior to drive for strong Company performance.
II. DEFINITIONS
|
|
A.
|
|
Base Salary
equals the base annual salary effective December
31
st
for the year for which the award is calculated. If a Participant’s
bonus level or salary changes during the year, the Base Salary will be prorated for the
portion of the year each bonus level or salary was in effect.
|
|
|
B.
|
|
Chief Executive Officer
means the Chief Executive Officer of American
Railcar Industries, Inc.
|
|
|
C.
|
|
Company
means American Railcar Industries, Inc. and its subsidiaries
and its successors.
|
|
|
D.
|
|
Compensation Committee of the Board of Directors
means the members of
the American Railcar Industries, Inc. Board of Directors responsible for administering
executive and management compensation.
|
|
|
E.
|
|
Fiscal Year
means the Company’s fiscal year beginning January 1 and
ending December 31.
|
|
|
F.
|
|
Participant(s)
refer(s) to the employees eligible to participate in the
Plan pursuant to Section III.
|
|
|
G.
|
|
Performance Targets
are the financial goal(s) of the Company for the
Fiscal Year as defined in the annual business plan.
|
|
|
H.
|
|
Personal Goals
refer to the personal goals and objectives set by each
Participant and his/her supervisor at the beginning of each Fiscal Year against which
performance is measured.
|
|
|
I.
|
|
Plan
means the American Railcar Industries, Inc. Management Incentive
Plan, as from time to time amended.
|
|
|
J.
|
|
Company Target Bonus Pool
means the sum of the annual bonus targets
(base salary X bonus percentage) for all Participants in the Plan.
|
III. EMPLOYEES COVERED BY THE PLAN
Participating employees (each a “Participant”) shall be subject to the approval of the
Compensation Committee of the Board of Directors. If a Participant vacates a listed
position, the employee selected as the replacement would be eligible to participate in the
Plan pro-rata for the months in the position, subject to approval by the Chief Executive
Officer (the “CEO” or, in the case of Participants who are executive officers, the
Compensation Committee of the Board of Directors).
Exhibit 10.66
American Railcar Industries, Inc.
2011 Management Incentive Plan
IV. PARTICIPANT FINANCIAL AWARD
A Participant in the Plan shall be entitled to a financial award computed as the product of:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Participant’s
Base Salary
|
|
X
|
|
Bonus Percentage
|
|
X
|
|
Financial
Performance
Factor
|
|
X
|
|
Individual
Performance Rating
on a 0-120% scale
|
|
=
|
|
Participant’s
Financial Award
|
|
|
A.
|
|
“Participant’s Base Salary” shall be the salary as defined in Section II.A.
|
|
|
B.
|
|
“Bonus Percentage” shall be determined by the Compensation Committee of the
Board of Directors, based upon the management level of each Participant.
|
|
|
C.
|
|
“Financial Performance Factor” shall be determined by the Compensation
Committee of the Board of Directors in accordance with Section V below.
|
|
|
D.
|
|
“Individual Performance Rating” shall be based on an individual performance
evaluation in accordance with Section VI below.
|
It is intended that increases and decreases in Participant Financial Awards which result
from Individual Performance Ratings shall not result in an increase in the aggregate
Plan payout that would otherwise apply based on the Company Performance as a % of Target
(as set forth below in Section V) and Individual Performance Ratings at the 100% level
(such aggregate Plan payout being referred to as the “Maximum Bonus Pool”), and in the
event that the Financial Awards otherwise calculated in accordance with this Section IV
would exceed the Maximum Bonus Pool, each of the Financial Awards calculated on that
basis shall be reduced pro rata in order that the aggregate Financial Awards shall not
exceed the Maximum Bonus Pool.
If a Participant was in more than one management level during a Fiscal Year, a separate
computation shall be made for the number of months at each level during such Fiscal
Year; the sum of the separate computations shall be the Participant’s Financial Award.
V. FINANCIAL PERFORMANCE FACTOR
The financial performance factor is established by the Compensation Committee of the Board
of Directors based on the Company’s achievement of goals set forth in its annual business
plan.
VI. INDIVIDUAL PERFORMANCE RATING
Personal Goals for each Participant are to be developed jointly by the Participant and
his/her supervisor for the Fiscal Year. The Personal Goals of the CEO and other executive
officers shall be subject to the review and approval of the Compensation Committee of the
Board of Directors. Attainment of such goals and other performance criteria, both
quantifiable and non-quantifiable, may be used to arrive at an overall individual
performance rating from 0% to 120%. Such criteria shall be applied consistently to
Participants with similar duties pursuant to an evaluation process
Exhibit 10.66
American Railcar Industries, Inc.
2011 Management Incentive Plan
to be reviewed and approved by the Company’s human resources department. Criteria that may
be weighed in arriving at an individual performance rating include, without limitation:
|
|
•
|
|
Achievement of performance targets established in Annual Budget
|
|
|
•
|
|
Successful development of new accounts/products
|
|
|
•
|
|
Improvement in product programs
|
|
|
•
|
|
Attainment of self-development objectives
|
|
|
•
|
|
Control or reduction of operating expenses by business unit
|
|
|
•
|
|
Safety record of facility or facilities
|
|
|
•
|
|
Quality program achievement
|
|
|
•
|
|
Business process improvements
|
The supervisor will assign a personal performance rating, from 0% to 120%, reflecting the
Participant’s performance during the Fiscal Year. The Chief Executive Officer reserves the
right, in his sole discretion, to accept the personal performance percent recommendation for
each Participant or to modify any personal performance percent for any Participant to
achieve such dispersion of performance ratings as the Chief Executive Officer deems
appropriate; provided, however, that the personal performance percent recommendation of the
CEO and other executive officers shall be subject to the review and approval of the
Compensation Committee of the Board of Directors.
VII. PERFORMANCE TARGETS
Financial performance targets are established based on the annual business plan. Targets
are recommended by the Chief Executive Officer and approved by the Compensation Committee of
the Board of Directors based on the annual business plan.
At any time prior to the final determination of awards, the Compensation Committee of the
Board of Directors, 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.
VIII. COMPUTATION AND DISBURSEMENT OF FUNDS
As soon as practicable after the close of the Fiscal Year, the Corporate Controller shall
calculate the financial performance and the proposed payout under the Plan based upon the
achievement of the financial performance measures. The proposed payout shall be presented
to the Compensation Committee of the Board of Directors for final approval in its sole
discretion. If approved, payment of the Financial Awards shall be made within 30 days after
completion of the annual audit but not later than September 30th of the calendar year
following the Fiscal Year for which the award is earned.
Exhibit 10.66
American Railcar Industries, Inc.
2011 Management Incentive Plan
All payment awards shall be reduced by amounts required to be withheld for taxes at the time
payments are made.
IX. PAYMENT OF PRO-RATED FINANCIAL AWARDS
In order to be eligible to receive a Financial Award for a Fiscal Year, a Participant must
be employed in a bonus-eligible position for a minimum of three months during that Fiscal
Year, except as otherwise provided by the Compensation Committee of the Board of Directors.
Subject to the discretion of the Compensation Committee of the Board of Directors, a
Participant will be allowed to earn a Financial Award based on the amount of time the
eligible Participant is actively and continuously employed in an eligible position during
the Fiscal Year.
|
|
•
|
|
New Hires and Rehires
— The Financial Award will be prorated based upon the
number of months the Participant is employed during the Fiscal Year. For example,
a Participant initially hired on July 1
st
would be eligible for 50% of
the annual Financial Award. In the case of rehires, there is no credit for prior
service and the rehire date must occur prior to October 1
st
in order for
the Participant to be eligible under the Plan for the Fiscal Year.
|
|
|
•
|
|
Leaves of Absence —
Time taken during a leave of absence is not credited toward
eligibility for a Financial Award; therefore, awards will be prorated for the
length of time on leave of absence. Furthermore, payments of Financial Awards are
not considered earned and payable unless and until the Participant returns to work,
with the exception of Military Leave. If the leave of absence lasts nine months or
more during the Fiscal Year, the Participant will not have met the three-month
eligibility required to earn a bonus for that Fiscal Year.
|
|
|
•
|
|
Promotions and Demotions
— If the action results in a movement from one
bonus-eligible position to another bonus-eligible position (with either a higher or
lower bonus target) a pro-rated Financial Award will be calculated. The Financial
Award will be calculated separately by factoring the time in each bonus eligible
position by the corresponding bonus target and base pay during the Participant’s
tenure in each position. However, if a Participant is both promoted and later
demoted during the Fiscal Year, the Participant’s entire bonus eligibility and
bonus target percent will be determined by the lower grade.
|
|
|
•
|
|
Change in employment status
— The Financial Award is
not payable unless the Participant has occupied a bonus-eligible position
for at least three months during the Fiscal Year and meets all eligibility
criteria during the last full quarter of the Fiscal Year, i.e., from
October 1
st
through December 31
st
. The Financial
Award will be based upon the base salary and the annual bonus target while
in the bonus-eligible position.
|
|
|
•
|
|
Bonus-eligible position to a non-bonus eligible
position
— The Financial Award will be prorated based upon the time in a
bonus-eligible position as long as the Participant was in the position for
a minimum of three months during the Fiscal Year. A Participant must
occupy a bonus-eligible position prior to October 1
st
in order
to be eligible to receive a bonus payment for the Fiscal Year. The
Financial Award will be based upon the base salary and the annual bonus target while
in the bonus-eligible position.
|
Exhibit 10.66
American Railcar Industries, Inc.
2011 Management Incentive Plan
|
|
•
|
|
Non-bonus-eligible position to a bonus-eligible
position
— The Financial Award will be prorated based on the time worked,
the corresponding bonus target, and the base salary in effect while in the
bonus-eligible position as long as the Participant was in the eligible
position for a minimum of three months during the Fiscal Year. A
Participant must move into the bonus-eligible position prior to October
1
st
in order to be eligible to receive a bonus payment for the
Fiscal Year.
|
X. FORFEITURE OF BONUS
If a Participant’s termination of employment occurs prior to the date the Financial Awards
are actually paid, the Participant will not be entitled to any bonus payment for the Fiscal
Year during which the termination occurs, except as otherwise provided by the Compensation
Committee of the Board of Directors. Financial Awards are not considered earned until they
are approved by the Compensation Committee of the Board of Directors and are actually paid
by the Company. Consequently, a Participant whose employment with the Company is
voluntarily or involuntarily terminated prior to the actual Financial Award payment date
will be deemed ineligible for payment of the Financial Award, except as otherwise provided
by the Plan and the Compensation Committee of the Board of Directors, in which case any such
Financial Award to the terminated employee shall be paid at the time Financial Awards are
paid to active employees pursuant to Section IX above.
XI. ADMINISTRATION
This Plan shall be administered by the Manager of Human Resources of American Railcar
Industries, Inc. subject to the control and supervision of the Chief Executive Officer and
the Compensation Committee of the Board of Directors of American Railcar Industries, Inc.
In the event of a claim or dispute brought forth by a Participant, the decision of the Chief
Executive Officer as to the facts in the case and the meaning and intent of any provision of
the Plan, or its application, shall be final, binding, and conclusive, except that, with
regard to executive officers, the decision of the Compensation Committee of the Board of
Directors shall be final, binding, and conclusive.
Notwithstanding anything herein to the contrary, the Compensation Committee of the Board of
Directors shall retain sole discretion over all matters relating to this 2011 Management
Incentive Plan, including without limitation the decision to pay any financial awards, the
amount of financial awards, if any, the ability to increase or decrease any financial awards
and to make changes to any performance measures or targets and discretion over the payment
of partial financial awards in the event of employment termination.
XII. NO EMPLOYMENT CONTRACT; FUTURE PLANS
Participation in this Plan shall not confer upon any Participant any right to continue in
the employ of the Company nor interfere in any way with the right of the Company to
terminate any Participant’s employment at any time. The Company is under no obligation to continue the
Plan in future years.
Exhibit 10.66
American Railcar Industries, Inc.
2011 Management Incentive Plan
XIII. AMENDMENT OR TERMINATION
The Compensation Committee of the Board of Directors may at any time, or from time to time
(a) amend, alter or modify the provisions of this Plan, (b) terminate this Plan, or (c)
terminate the participation of an employee or group of employees in this Plan; provided,
however, that in the event of the termination of this Plan or a termination of
participation, the Compensation Committee of the Board of Directors, in its sole discretion,
shall determine whether a prorated award is payable to employees who were Participants in
this Plan. If prorated awards are granted, the awards shall be paid within 30 days after
completion of the annual audit but not later than September 30 of the calendar year
following the Fiscal Year for which the award is earned.
XIV. GENERAL PROVISIONS
No right under the Plan shall be assignable, either voluntarily or involuntarily by the way
of encumbrance, pledge, attachment, level or change of any nature (except as may be required
by state or federal law).
Nothing in the Plan shall require the Company to segregate or set aside any funds or other
property for the purpose of paying any portion of an award. No Participant, beneficiary or
other person shall have any right, title or interest in any amount awarded under the Plan
prior to the payment of such award to him or her.
Exhibit 10.67
FORM OF
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:
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.
2
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. SARs Holder 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
3
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:
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
4
Exhibit 10.67
EXHIBIT A
to
Stock Appreciation Rights Agreement
2005 EQUITY INCENTIVE PLAN
EXERCISE NOTICE
American Railcar Industries, Inc.
100 Clark St.
St. Charles, MO 63301
Attention: Treasury
|
|
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.
|
|
|
|
|
2.
|
|
Representations of Holder
. Holder acknowledges that Holder has
received, read and understood the Plan and the Award Agreement and agrees to abide by
and be bound by their terms and conditions.
|
|
|
|
|
3.
|
|
Tax Consultation
. Holder understands that Holder may suffer adverse
tax consequences as a result of Holder’s exercise of the SARs. Holder represents that
Holder 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]
8
SAR Exercise Notice
|
|
|
|
|
|
|
|
|
Submitted by:
|
|
|
|
Accepted by:
|
|
|
|
|
|
|
|
|
|
|
|
SARS HOLDER
|
|
|
|
AMERICAN RAILCAR INDUSTRIES, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature
|
|
|
|
By
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Print Name
|
|
|
|
Title
|
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date Received
|
|
|
6