Exhibit 10.1
[LOGO OF WERNER ENTERPRISES, INC.]
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (this "Agreement") is made
and entered into as of the [_____] day of [__________] 20[___]
(the "Grant Date"), by and between Werner Enterprises, Inc., a
Nebraska corporation (the "Company"), and [_______________], an
eligible participant and recipient ("Participant") under the
Werner Enterprises, Inc. Equity Plan (as defined and described
below). As set forth herein, this Agreement is subject to the
terms and conditions of the Werner Enterprises, Inc. Equity Plan,
as may be amended from time to time.
RECITALS
WHEREAS, the Company has in effect the Werner
Enterprises, Inc. Equity Plan, which was initially
adopted by the Company on May 12, 1987 and ratified and
approved by the stockholders of the Company on June 9,
1987 as the Werner Enterprises, Inc. Stock Option Plan
(as amended and restated on May 3, 1994, February 8,
2000, May 9, 2000, February 25, 2003 and May 11, 2004),
and which was amended, restated and renamed the Werner
Enterprises, Inc. Equity Plan by the Company on March
15, 2007 and ratified and approved by the stockholders
of the Company on May 8, 2007 (the "Plan"), and which
may be amended and restated from time to time;
WHEREAS, the Plan permits shares of the Company's
common stock, $0.01 par value (the "Common Stock"), to
be granted as restricted stock to (i) any key employee
(including an employee who is a member of the Company's
Board of Directors (the "Board") and/or an officer of
the Company and its subsidiaries) and (ii) any non-
employee member of the Board;
WHEREAS, the Company believes it to be in the best
interests of the Company and its stockholders for
certain key employees and non-employee members of the
Board to obtain or increase their stock ownership
interest in the Company in order to establish a greater
incentive in providing services to the Company and to
further align their interests with those of the
stockholders of the Company; and
WHEREAS, Participant is a [key employee][a non-employee
member of the Board] and has been selected by the
Compensation Committee of the Board (the "Committee")
to receive an award of restricted stock under the Plan.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and of the
covenants and agreements herein set forth, the parties hereby
mutually covenant and agree as follows:
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1. Grant of Restricted Stock. Subject to the terms and
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conditions of the Plan (attached hereto as Exhibit A and made a
part hereof) and this Agreement, the Company hereby grants to
Participant an aggregate number of [_______] restricted shares of
Common Stock (such restricted shares of Common Stock are
hereinafter referred to as the "Restricted Stock" or the
"Award"). The Restricted Stock granted under this Agreement is
exempt from Section 409A of the Internal Revenue Code of 1986, as
amended. The Restricted Stock was granted to Participant on the
aforementioned Grant Date.
2. Acceptance of Award. The granting of this Restricted Stock
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Award does not impose any obligation on Participant to accept
such Award. By accepting the Award, however, Participant agrees
to be subject to and bound in accordance with the terms and
conditions of this Agreement and the Plan. Participant's
execution of this Agreement shall evidence and constitute
Participant's acceptance of the Award contemplated herein.
3. Vesting. [The Restricted Stock shall become nonrestricted
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and fully vested, and restrictions on such Restricted Stock shall
lapse, on [__________, 20___] (the "Vesting Date").][Separate
designated portions of the Restricted Stock shall become vested
on the "Vesting Dates" as set forth on the Vesting Schedule
(attached hereto as Exhibit B and made a part hereof).] Until
the occurrence of the Vesting Date[s], [all of the Restricted
Stock][each portion of Restricted Stock for which the respective
Vesting Date has not occurred] shall be non-vested, may be
canceled and forfeited upon Participant's termination of
employment and may not be subject to further vesting under this
Agreement, pursuant to the Plan and Section 7 of this Agreement.
4. Value of Restricted Stock. Participant acknowledges that
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the value of each share of Restricted Stock granted under this
Agreement is not predetermined, fixed, permanent or otherwise
set, specified or guaranteed whatsoever. On the Vesting Date[s]
and each subsequent date thereafter, the value of such shares
that fully vest and become unrestricted shall equal the Fair
Market Value of the Common Stock of the Company on the respective
date. Participant acknowledges that the Fair Market Value of
such shares may fluctuate and vary according to market conditions
and other factors. "Fair Market Value" means the closing trading
price of one share of Common Stock on the NASDAQ Global Select
MarketSM securities exchange, as published by the Wall Street
Journal for the date in question.
5. Taxes. Participant will be solely responsible for any
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federal, state, local or other taxes imposed in connection with
the granting and acceptance of the Restricted Stock pursuant to
this Agreement and the Plan and with the delivery of Restricted
Stock that has vested and become unrestricted pursuant thereto.
Participant acknowledges that upon Participant's recognition of
the income with respect to the Restricted Stock granted
hereunder, the Company may withhold taxes pursuant to the terms
of the Plan.
6. Issuance Upon Vesting; Withholdings.
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(a) On the designated Vesting Date[s], Participant shall
have all rights as a stockholder and be entitled to
certificates for Restricted Stock that vested and
became unrestricted upon Participant's satisfaction of
all applicable tax withholding amounts and
requirements. The shares are payable to Participant
[upon vesting][[_______] ([___]) days after the end of
the [vesting period][performance period, as based on
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the Committee's assessment of the extent to which the
performance goals were achieved]].
(b) The Company is not obligated to deliver any Restricted
Stock that has vested and become unrestricted unless
Participant has satisfied all applicable federal,
state, local and other tax withholding requirements.
Participant may pay all required withholding amounts
pursuant to the provisions of the Plan.
7. Termination of Employment; Death. Subject to the Plan and
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this Agreement and unless the Plan and Agreement provide
otherwise, during Participant's lifetime, only Participant is
entitled to receive the Restricted Stock granted hereunder.
Termination of Participant's employment with the Company will
affect the forfeiture of, and rights to become vested in, the
Restricted Stock granted herein and shall be governed by the
provisions of the Plan. In the event Participant dies while
holding Restricted Stock (not otherwise forfeited), all service
period and other restrictions applicable to such Restricted Stock
shall lapse, and such Restricted Stock shall become fully vested
and nonforfeitable in accordance with the Plan.
8. Nonassignability of Award. The Award of Restricted Stock
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shall not be assigned, mortgaged, pledged, attached, sold,
transferred or otherwise encumbered by Participant other than by
will or the applicable laws of descent and distribution, except
as may be permitted by the Board or Committee from time to time
in accordance with the Plan. If Participant attempts to
alienate, assign, pledge, hypothecate or otherwise dispose of
Participant's Restricted Stock Award, such Award may be
terminated and become null and void pursuant to the Plan.
9. [No ]Stockholder and Dividend Rights. [Participant shall
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not be deemed for any purpose to have any dividend, voting,
liquidation or other rights with respect to the Restricted Stock
granted hereunder, except to the extent that such Restricted
Stock vests and becomes unrestricted and Participant then becomes
entitled to an issued stock certificate for such vested and
unrestricted shares, pursuant to this Agreement and the
Plan.][Participant shall have dividend[ and voting] rights with
respect to Restricted Stock granted under this Agreement. These
dividend[ and voting] rights shall accrue to Participant's
benefit only with regard to the Restricted Stock held by
Participant on the record date of the payable dividend[ and the
voting date], and dividends paid on unvested Restricted Stock may
be held in escrow by the Company and are subject to the same
forfeitability and transferability restrictions as the underlying
Restricted Stock.]
10. Restrictions on Transfers of Common Stock.
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(a) Participant agrees individually and for Participant's
heirs, legatees and legal representatives, with respect
to all unrestricted shares of Common Stock acquired
pursuant to the terms and conditions of this Agreement
(or any shares of Common Stock issued pursuant to a
stock dividend or stock split thereon or any securities
issued in lieu thereof or in substitution or exchange
therefor), that Participant and Participant's heirs,
legatees and legal representatives shall not sell or
otherwise dispose of such shares except pursuant to an
effective registration statement under the Securities
Act of 1933 (the "1933 Act") or except in a transaction
which, in the opinion of counsel for the Company, is
exempt from the registration and prospectus delivery
requirements under the Act.
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(b) As further conditions to Participant's receipt of the
unrestricted Common Stock acquired pursuant to this
Agreement and the Plan, Participant agrees individually
and for Participant's heirs, legatees and legal
representatives, prior to such acquisition, to those
investment representations and warranties set forth in
Section 16 hereto and to take those other actions, as
counsel for the Company determines may be necessary or
appropriate for compliance with the 1933 Act and any
applicable securities laws. Participant also
understands and acknowledges that federal and state
securities laws govern Participant's right to sell,
transfer and otherwise dispose of the Restricted Stock,
whether vested or unvested.
(c) Unless otherwise determined by the Board, Participant
agrees that if any certificate representing restricted
shares of Common Stock acquired under this Agreement
and in accordance with the Plan is issued prior to the
Vesting Date[s] of such restricted shares, then such
certificate shall bear a legend substantially similar
to the following (and any other legend as may be
required by state securities laws):
The shares of Common Stock of Werner
Enterprises, Inc. represented by this
certificate are restricted securities as that
term is defined under Rule 144 promulgated
under the Securities Act of 1933, as amended
(the "Act"). These shares may not be sold,
assigned, transferred or disposed of unless
(i) such shares are registered under the Act
or (ii) such sale, assignment, transfer or
disposition of such shares is exempt from the
registration and prospectus delivery
requirements of the Act and any applicable
state securities laws. Any sale, assignment,
exchange, gift, transfer or other disposition
of the Common Stock represented by this
certificate is subject to the terms and
provisions of the Werner Enterprises, Inc.
Equity Plan and the Restricted Stock Award
Agreement, dated [__________, 20___], by and
between Werner Enterprises, Inc. and
[Participant].
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(d) Unless the Board determines otherwise, any certificate
representing unrestricted shares of Common Stock
acquired under this Agreement and in accordance with
the Plan shall not bear a restrictive legend, provided
Participant satisfies the requirements set forth in
Section 6 hereto.
11. Adjustments. In the event there is change in the number or
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rights and privileges of the outstanding shares of Common Stock
(or of any stock or other securities into which such Common Stock
may be changed or for which it may be exchanged), then the Board
or Committee may adjust the number or rights and privileges of
the shares subject to the Restricted Stock Award if the Board or
Committee in its sole discretion determines that such change
equitably requires such an adjustment. As part of the
adjustment, the Board or Committee shall determine, in its sole
discretion, the manner of any such adjustment. Any adjustment or
substitution provided for in this Section 11 or the Plan shall
not result in the issuance of any fractional shares.
12. Board and Committee Authority. As consistent with the Plan
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and this Agreement, the Board and Committee have the power and
discretion to interpret this Agreement; adopt rules for the
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administration, interpretation and application of this Agreement;
and interpret or revoke any such rules (including, but not
limited to, determinations of employment termination and whether
any Restricted Stock has vested or shall be deemed vested). All
actions taken and all interpretations and determinations made by
the Board and Committee in good faith will be final and binding
upon Participant, the Company and all other interested parties.
No member of the Board or Committee will be personally liable for
any action, determination or interpretation made in good faith
with respect to this Agreement.
13. Rights and Powers of Company Not Affected. The existence of
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the Restricted Stock granted under this Agreement shall not
affect in any way the rights or powers of the Company or its
stockholders to authorize and effect any or all adjustments,
recapitalizations, reorganizations or other transformations or
alterations to the Company's capital structure, business or
operations; any merger or acquisition of the Company; any
issuance of bonds or debentures; any preferred or prior
preference stock ahead of or affecting the Common Stock or the
rights thereof; a dissolution or liquidation of the Company; any
sale or transfer of all or any part of the Company's assets or
business; or any other lawful corporate act or proceeding of a
similar character or otherwise.
14. No Right to Employment. The provisions of this Agreement
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(including the granting and vesting of the Restricted Stock) do
not confer upon Participant any right to continued employment
with the Company or its subsidiaries, nor do any of such
provisions interfere in any way with the right of the Company or
subsidiary (as the case may be) to terminate Participant's
employment or to make any modification to Participant's
compensation at any time.
15. Changes in Circumstances Affecting Common Stock.
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Participant expressly understands and agrees that Participant
assumes all risks incident to (i) any change hereafter in any
applicable laws or regulations or (ii) any change in the value of
the Restricted Stock issued under this Agreement or the
outstanding Common Stock after the date hereof.
16. Participant Representations and Warranties. Participant
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acknowledges, represents and warrants the following:
(a) Any Restricted Stock acquired by Participant under this
Agreement is for Participant's own account, investment
purposes only and is not acquired with a view to or for
the resale, distribution or fractionalization thereof,
in whole or in part, and no other person has a direct
or indirect beneficial interest in such Restricted
Stock.
(b) The offering and acceptance of the Restricted Stock is
intended to be exempt from registration under the
Securities Act of 1933, as amended (the "Act"), and
Participant will not sell or otherwise transfer such
shares without registration under the Act or an
exemption therefrom.
(c) Sales or transfers of the Restricted Stock granted
hereunder are further restricted by the provisions of
the Plan and applicable federal and state securities
laws, rules and regulations.
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(d) Participant has knowledge and experience in financial
and business matters and understands and is capable of
evaluating the merits and inherent risks of an
investment of this nature.
(e) Participant (i) has the financial ability and fully
agrees to bear the economic risk of his acquired
investment in the Company; (ii) has adequate means for
providing for his current needs and personal
contingencies; and (iii) does not need liquidity with
respect to his acquired investment in the Company.
(f) Participant has obtained, or had reasonable opportunity
to obtain, sufficient information concerning the
Restricted Stock, Company and any other relevant
information relating to an acquired investment in the
Restricted Stock.
(g) In making his decision to accept the Restricted Stock,
Participant shall rely solely upon this Agreement, the
Plan, any written information supplied by the Company
(or its authorized representatives) and any independent
investigations made by Participant. Participant shall
not rely on the Company or any of its officers or Board
members with respect to tax advice or other economic
considerations involved in an acquired investment of
Restricted Stock relating to Participant's own
respective tax and economic situation.
17. Notice. All notices, claims, certificates, requests,
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demands and other communications provided hereunder shall be in
writing and shall be deemed duly given if personally delivered or
if sent by a recognized overnight courier; registered or
certified mail (return receipt requested and postage prepaid); or
telecopy, facsimile or other means of electronic correspondence
(confirmation of receipt requested). Participant shall send
notice to the Corporate Secretary of the Company at the Company's
principal executive offices in Omaha, Nebraska, and the Company
shall send notice to Participant at an address designated and
provided by Participant to the Corporate Secretary. Notice shall
be deemed to be received as follows: (i) for personal delivery,
on the date of such delivery; (ii) for recognized courier, on the
next business day after sent; (iii) for registered or certified
mail, on the third business day following that on which the
notice was postmarked; and (iv) for telecopy, facsimile or
electronic correspondence, when receipt of confirmation is given
(or if no receipt is provided, on the business day after the date
sent).
18. Assignment of Agreement. Participant is prohibited from
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assigning, transferring or otherwise conveying this Agreement,
including any or all of Participant's duties and obligations
hereunder, until the terms, conditions and restrictions contained
herein have been satisfied and released or unless the Board or
Committee consents and permits otherwise.
19. Amendment or Modification; Counterparts. This Agreement may
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be amended, modified or supplemented only by a written instrument
executed by all parties to this Agreement. This Agreement may be
executed in one or more counterparts. Each counterpart shall be
deemed original, but all such counterparts together shall
constitute but one agreement.
20. Severability. If any provision of this Agreement is
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adjudicated or determined by a court of competent jurisdiction to
be invalid, prohibited or unenforceable for any lawful reason,
such provision (as to such jurisdiction) shall be ineffective and
rendered null and void. In such event, the remaining provisions
of this Agreement shall remain effective, valid and enforceable.
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21. Governing Law. This Agreement shall be governed by the laws
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of the State of Nebraska without regard to the principles of
conflicts of laws and with respect to all matters, including (but
not limited to) matters of validity, construction, effect,
performance and remedies. Participant expressly submits to the
exclusive personal jurisdiction and exclusive venue of the
federal and state courts of competent jurisdiction in the State
of Nebraska.
22. Waiver of Jury Trial. Each party to this Agreement hereby
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irrevocably and unconditionally waives, to the fullest extent
permitted by law, the right to trial by jury in any suit, action
or proceeding arising hereunder.
23. Terms of the Plan Govern. All parties acknowledge that the
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Restricted Stock is granted under and pursuant to the Plan, which
shall govern all rights, interests, obligations and undertakings
of the Company and Participant. The Plan shall govern and be
controlling in the event (i) any of the terms of the Plan and
this Agreement are inconsistent or conflict or (ii) this
Agreement is silent and does not include provisions with respect
to a particular matter or circumstance. All capitalized terms
not otherwise defined herein shall have the meanings assigned to
such terms in the Plan.
IN WITNESS WHEREOF, the parties hereto agree to the terms and
conditions herein and have executed this Restricted Stock Award
Agreement, effective as of the Grant Date first set forth above.
PARTICIPANT: WERNER ENTERPRISES, INC.:
By:
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Signature Signature
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Name (Print) Name (Print)
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Title Title
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Date Date
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EXHIBIT A
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WERNER ENTERPRISES, INC.
EQUITY PLAN
[EXHIBIT B]
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VESTING SCHEDULE
Separate portions of the Restricted Stock granted pursuant to
this Agreement shall vest on the "Vesting Dates" according to the
following schedule and the [__________, 20___] Grant Date:
1. First Vesting Date. [_______] percent ([_____%])
of the shares of the Restricted Stock Award shall
become vested, and the restrictions on such shares
shall lapse, on [__________, 20___];
2. [Second] Vesting Date. [_______] percent
([_____%]) of the shares of the Restricted Stock
Award shall become vested, and the restrictions on
such shares shall lapse, on [__________, 20___];
3. [Third] Vesting Date. [_______] percent ([_____%])
of the shares of the Restricted Stock Award shall
become vested, and the restrictions on such shares
shall lapse, on [__________, 20___];
4. [Fourth] Vesting Date. [_______] percent
([_____%]) of the shares of the Restricted Stock
Award shall become vested, and the restrictions on
such shares shall lapse, on [__________, 20___];[
and]
5. [Fifth] Vesting Date. [_______] percent ([_____%])
of the shares of the Restricted Stock Award shall
become vested, and the restrictions on such shares
shall lapse, on [__________, 20___]. On such final
Vesting Date, all shares of the Restricted Stock
Award shall have vested, and all restrictions on
such shares shall have lapsed, after the expiration
of [_______] ([___]) years from the Grant Date.