Exhibit 10.29
AMENDMENT OF 2004 EQUITY INCENTIVE
COMPENSATION PLAN AND EQUITY AWARDS
The GATX Corporation 2004 Equity Incentive Compensation Plan (the "2004
Plan") is hereby amended in the particulars set forth below, with such
amendments effective January 1, 2005 with respect to Awards that were
outstanding on or after January 1, 2005, but excluding Awards to the extent that
they were vested on December 31, 2004, and excluding Options and SARs to the
extent that they were exercisable on December 31, 2004. Capitalized terms used
in this amendment and not defined herein shall have the meaning set forth in the
2004 Plan.
1. By deleting the following phrase where it appears in subsection 2.2 of the
2004 Plan:
"; provided, however, that the Committee, in its discretion, may establish
an Exercise Price of an Option or SAR granted under this Section 2 that
varies based on the stock price of a comparator group of companies or such
other index as is selected by the Committee (resulting in an Exercise Price
that may at times be less than the Fair Market Value of a share of Stock on
the date of grant); and further provided that such a variable price shall
not be used if the Committee intends that the Options or SARs would be
Performance-Based Compensation, and the use of such variable pricing would
preclude such treatment"
2. By adding the following subsection 2.8 at the end of Section 2 of the Plan:
"2.8. Limitations for 409A. Options and SARs are subject to the following,
notwithstanding any provisions of the Award Agreements to the contrary:
(a) Options and SARs are amended to eliminate the Participant's right to
receive, upon exercise of the Option or SAR with respect to a share of
Stock, an amount (including Stock having a Fair Market Value at the
time of exercise) greater than the excess of (i) the Fair Market Value
of a share of Stock at the time of exercise over (ii) the exercise
price with respect to a share covered by the Award (with the
application of this provision to include, without limitation, the
elimination of the right to receive such greater amount following a
Change in Control), provided that this sentence shall not be construed
to permit distribution of cash rather than stock upon the exercise of
an option or SAR.
(b) SARs are amended to provide that in determining the value to be
delivered upon the exercise of an SAR (including, without limitation,
an SAR granted in connection with an Option), and the number of shares
to be delivered upon the exercise of a stock-settled SAR, and to the
extent that the Award does not specify the manner of determining fair
market value on the date of exercise, such fair market value shall be
determined in a manner that is consistent with the definition of "Fair
Market Value" set forth in the Plan.
3. By adding the following sentence at the end of paragraph 4.2(f) of the 2004
Plan:
"However, in no event shall this paragraph (f) be construed to permit a
modification (including a replacement) of an Option or SAR if such
modification either: (i) would result in accelerated recognition of income
or imposition of additional tax under Code section 409A; or (ii) would
cause the Option or SAR subject to the modification (or cause a replacement
Option or SAR) to be subject to Code section 409A, provided that the
restriction of this clause (ii) shall not apply to any Option or SAR that,
at the time it is granted or otherwise, is designated as being deferred
compensation subject to Code section 409A."
4. By adding the following paragraph (d) at the end of paragraph 4.5 of the
2004 Plan:
"(d) This subsection 4.5 and subsection 4.6 shall be subject to the
following:
(i) This subsection 4.5 shall not be construed to permit the grant of an
Option or SAR if such action would cause the Option or SAR being
granted or the option or stock appreciation right being replaced to
be subject to Code section 409A, provided that this paragraph (i)
shall not apply to any Option or SAR (or option or stock appreciation
right granted under another plan) being replaced that, at the time it
is granted or otherwise, is designated as being deferred compensation
subject to Code section 409A.
(ii) Except with respect to an Option or SAR that, at the time it is
granted or otherwise, is designated as being deferred compensation
subject to Code section 409A, no Option or SAR shall condition the
receipt of dividends with respect to an Option or SAR on the exercise
of such Award, or otherwise provide for payment of such dividends in
a manner that would cause the payment to be treated as an offset to
or reduction of the exercise price of the Option or SAR pursuant
Treas. Reg. Section 1.409A-1(b)(5)(i)(E).
(iii) Neither this subsection 4.5 nor subsection 4.6 shall be construed to
permit a modification of an Award, or to permit the payment of a
dividend or dividend equivalent, if such actions would result in
accelerated recognition of taxable income or imposition of additional
tax under Code section 409A."
5. By adding the following sentence at the end of Section 4.6 of the 2004
Plan:
"Except for Options and SARs designated at the time of grant or otherwise
as intended to be subject to Code section 409A, this subsection 4.6 shall
not be construed to permit the deferred settlement of Options or SARs, if
such settlement would result in deferral of compensation under Treas. Reg.
Section 1.409A-1(b)(5)(i)(A)(3) (except as permitted in paragraphs (i) and
(ii) of that section)."
6. By adding the following sentence at the end of Section 7 of the 2004 Plan:
"No amendment or termination shall be adopted or effective if it would
result in accelerated recognition of income or imposition of additional tax
under Code section 409A or, except as otherwise provided in the amendment,
would cause amounts that were not otherwise subject to Code section 409A to
become subject to section 409A."
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