EXHIBIT 10.02
WABASH NATIONAL CORPORATION
2001 STOCK APPRECIATION RIGHTS PLAN
TABLE OF CONTENTS
PAGE
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1. PURPOSE......................... ..........................................1
2. DEFINITIONS................................................................1
3. ADMINISTRATION OF THE PLAN.................................................3
3.1. Board.................................................................3
3.2. Committee.............................................................3
3.3. Grants................................................................3
3.4. No Liability..........................................................4
4. STOCK SUBJECT TO THE PLAN..................................................4
5. EFFECTIVE DATE AND TERM OF THE PLAN........................................4
5.1. Effective Date........................................................4
5.2. Term..................................................................4
6 STOCK APPRECIATION RIGHTS..................................................4
7. AWARD AGREEMENT............................................................5
8. VESTING, TERM AND EXERCISE OF STOCK APPRECIATION RIGHTS....................5
8.1. Vesting and SAR Period................................................5
8.2. Term..................................................................5
8.3. Acceleration..........................................................5
8.4. Termination of Employment or Other Relationship.......................5
8.5. Limitations on Exercise of SARs.......................................6
8.6. Method of Exercise....................................................6
9. CERTAIN PROVISIONS APPLICABLE TO GRANTS....................................6
9.1. Stand-Alone, Additional, Tandem, and Substitute Grants................6
9.2. Form and Timing of Payment Under Grants; Deferrals....................7
10. AMENDMENT AND TERMINATION OF THE PLAN......................................7
11. EFFECT OF CHANGES IN CAPITALIZATION........................................7
11.1. Changes in Stock.....................................................7
11.2. Reorganization in Which the Company Is the Surviving Entity..........8
11.3. Reorganization, Sale of Assets or Sale of Stock Which Involves a
Change of Control....................................................8
11.4. Adjustments..........................................................8
11.5. No Limitations on Company............................................9
12. DISCLAIMER OF RIGHTS.......................................................9
13. NONEXCLUSIVITY OF THE PLAN.................................................9
14. WITHHOLDING TAXES..........................................................9
15. CAPTIONS................................................................. 10
16. OTHER PROVISIONS..........................................................10
17. NUMBER AND GENDER.........................................................10
18. SEVERABILITY..............................................................10
19. GOVERNING LAW.............................................................10
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WABASH NATIONAL CORPORATION
2001 STOCK APPRECIATION RIGHTS PLAN
Wabash National Corporation, a Delaware corporation (the "Company"), sets
forth herein the terms of its 2001 Stock Appreciation Rights Plan (the "Plan")
as follows:
1. PURPOSE
The Plan is intended to enhance the Company's ability to attract and retain
highly qualified officers, key employees, and other persons, and to motivate
such persons to serve the Company and its Affiliates (as defined herein) and to
expend maximum effort to improve the business results and earnings of the
Company, by providing to such persons an opportunity to acquire or increase an
interest in the operations and future success of the Company and with other
financial incentives. To this end the Plan provides for the grant of stock
appreciation rights.
2. DEFINITIONS
For purposes of interpreting the Plan and related documents (including
Award Agreements), the following definitions shall apply:
2.1 "Affiliate" of, or person "affiliated" with, a person means any company
or other trade or business that controls, is controlled by or is under common
control with such person within the meaning of Rule 405 of Regulation C under
the Securities Act.
2.2 "Award Agreement" means the stock appreciation rights agreement between
the Company and a Grantee that evidences and sets out the terms and conditions
of a Grant.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Code" means the Internal Revenue Code of 1986, as now in effect or as
hereafter amended.
2.5 "Committee" means a committee of, and designated from time to time by
resolution of, the Board.
2.6 "Company" means Wabash National Corporation.
2.7 "Effective Date" means ________ __, 2001, the date on which the Plan
was adopted by the Board.
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2.8 "Exchange Act" means the Securities Exchange Act of 1934, as now in
effect or as hereafter amended.
2.9 "Exercise Price" means the exercise price of the Stock Appreciation
Right as determined by the Board.
2.10 "Fair Market Value" means the value of a share of Stock, determined as
follows: if on the Grant Date or other determination date the Stock is listed on
an established national or regional stock exchange, is admitted to quotation on
the NASDAQ National Market, or is publicly traded on an established securities
market, the Fair Market Value of a share of Stock shall be the closing price of
the Stock on such exchange or in such market (the exchange or market designated
by the Board if there is more than one such exchange or market) on the Grant
Date or such other determination date (or if there is no such reported closing
price, the Fair Market Value shall be the mean between the highest bid and
lowest asked prices or between the high and low sale prices on such trading day)
or, if no sale of Stock is reported for such trading day, on the next preceding
day on which any sale shall have been reported. If the Stock is not listed on
such an exchange, quoted on such system or traded on such a market, Fair Market
Value shall be the value of the Stock as determined by the Board in good faith.
2.11 "Grant" means an award of a Stock Appreciation Right under the Plan.
2.12 "Grant Date" means, as determined by the Board or authorized
Committee, (i) the date as of which the Board or such Committee approves a Grant
or (ii) such other date as may be specified by the Board or such Committee.
2.13 "Grantee" means a person who receives or holds a Stock Appreciation
Right under the Plan.
2.14 "Plan" means this Wabash National Corporation 2001 Stock Appreciation
Rights Plan.
2.15 "Securities Act" means the Securities Act of 1933, as now in effect or
as hereafter amended.
2.16 "Service Provider" means a consultant or adviser to the Company, a
manager of the Company's properties or affairs, or other similar service
provider or affiliate of the Company, and employees of any of the foregoing, as
such persons may be designated from time to time by the Board pursuant to
SECTION 6 hereof.
2.17 "Stock" means the common stock, par value $0.01 per share, of the
Company.
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2.18 "Stock Appreciation Rights" or "SAR" means a right granted to a
Grantee under SECTION 6 hereof.
2.19 "Subsidiary" means any "subsidiary corporation" of the Company within
the meaning of Section 424(f) of the Code.
2.20 "Termination Date" shall be the date upon which a Grant shall
terminate or expire, as set forth in SECTION 8.2 hereof.
3. ADMINISTRATION OF THE PLAN
3.1. BOARD
The Board shall have such powers and authorities related to the
administration of the Plan as are consistent with the Company's certificate of
incorporation and by-laws and applicable law. The Board shall have full power
and authority to take all actions and to make all determinations required or
provided for under the Plan, any Grant or any Award Agreement, and shall have
full power and authority to take all such other actions and make all such other
determinations not inconsistent with the specific terms and provisions of the
Plan that the Board deems to be necessary or appropriate to the administration
of the Plan, any Grant or any Award Agreement. All such actions and
determinations shall be by the affirmative vote of a majority of the members of
the Board present at a meeting or by unanimous consent of the Board executed in
writing in accordance with the Company's articles of incorporation and by-laws
and applicable law. The interpretation and construction by the Board of any
provision of the Plan, any Grant or any Award Agreement shall be final and
conclusive.
3.2. COMMITTEE
The Board from time to time may delegate to a Committee such powers and
authorities related to the administration and implementation of the Plan, as set
forth in SECTION 3.1 above and in other applicable provisions, as the Board
shall determine, consistent with the certificate of incorporation and by-laws of
the Company and applicable law. In the event that the Plan, any Grant or any
Award Agreement entered into hereunder provides for any action to be taken by or
determination to be made by the Board, such action may be taken by or such
determination may be made by the Committee if the power and authority to do so
has been delegated to the Committee by the Board as provided for in this
Section. Unless otherwise expressly determined by the Board, any such action or
determination by the Committee shall be final, binding and conclusive.
3.3. GRANTS
Subject to the other terms and conditions of the Plan, the Board shall have
full and final authority (i) to designate Grantees, (ii) to determine the type
or types of
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Grant to be made to a Grantee, (iii) to determine the number of shares of Stock
to be subject to a Grant, (iv) to establish the terms and conditions of each
Grant (including, but not limited to, the exercise price of any SAR, the nature
and duration of any restriction or condition (or provision for lapse thereof)
relating to the vesting, exercise, transfer, or forfeiture of a Grant), (v) to
prescribe the form of each Award Agreement evidencing a Grant, and (vi) to
amend, modify, or supplement the terms of any outstanding Grant. Such authority
specifically includes the authority, in order to effectuate the purposes of the
Plan but without amending the Plan, to modify Grants to eligible individuals who
are foreign nationals or are individuals who are employed outside the United
States to recognize differences in local law, tax policy, or custom. As a
condition to any subsequent Grant, the Board shall have the right, at its
discretion, to require a Grantee to return to the Company Grants previously
awarded under the Plan. Subject to the terms and conditions of the Plan, any
such new Grant shall be upon such terms and conditions as are specified by the
Board at the time the new Grant is made.
3.4. NO LIABILITY
No member of the Board or of the Committee shall be liable for any action
or determination made in good faith with respect to the Plan or any Grant or
Award Agreement.
4. STOCK SUBJECT TO THE PLAN
Subject to adjustment as provided in SECTION 11 hereof, the number of
shares of Stock which may be the basis of Grants under the Plan shall be
[_________] shares.
5. EFFECTIVE DATE AND TERM OF THE PLAN
5.1. EFFECTIVE DATE
The Plan shall be effective as of the Effective Date.
5.2. TERM
The Plan has no termination date.
6. STOCK APPRECIATION RIGHTS
Grants may be made under the Plan to any employee of, or a Service Provider
providing services to, the Company or of any Subsidiary, including any such
employee who is an officer or director of the Company or of any Subsidiary, as
the Board shall determine and designate from time to time. An eligible person
may receive more than one Grant. The Board is authorized to grant SARs to
Grantees on the following terms and conditions: A SAR shall confer on the
Grantee to whom it is granted a right to receive, upon exercise thereof, the
excess of (A) the Fair Market
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Value of one share of Stock on the date of exercise over (B) the Exercise Price
of the SAR as determined by the Board.
7. AWARD AGREEMENT
Each Grant pursuant to the Plan shall be evidenced by an Award Agreement,
to be executed by the Company and by the Grantee, in such form or forms as the
Board shall from time to time determine. Award Agreements granted from time to
time or at the same time need not contain similar provisions but shall be
consistent with the terms of the Plan.
8. VESTING, TERM AND EXERCISE OF STOCK APPRECIATION RIGHTS
8.1. VESTING AND SAR PERIOD
Subject to SECTIONS 8.2, 8.3 and 11.3 hereof, each Grant under the Plan
shall become exercisable at such times and under such conditions as shall be
determined by the Board and stated in the Award Agreement.
8.2. TERM
Each SAR granted under the Plan shall terminate, and all rights to payments
thereunder shall cease, upon the expiration of ten years from the date such SAR
is granted, or under such circumstances and on such date prior thereto as is set
forth in the Plan or as may be fixed by the Board and stated in the Award
Agreement relating to such SAR (the "Termination Date").
8.3. ACCELERATION
Any limitation on the exercise of an SAR contained in any Award Agreement
may be rescinded, modified or waived by the Board, in its sole discretion, at
any time and from time to time after the Grant Date of such SAR, so as to
accelerate the time at which the SAR may be exercised.
8.4. TERMINATION OF EMPLOYMENT OR OTHER RELATIONSHIP
Upon the termination of a Grantee's employment or other relationship
with the Company unless otherwise provided in the applicable Award Agreement,
any SAR or portion thereof held by such Grantee that has not vested shall
terminate immediately, and any SAR or portion thereof that has vested but has
not been exercised shall terminate at the close of business on the 90th day
following the Grantee's termination of employment or other relationship, unless
the Board, in its discretion, extends the period during which the SAR may be
exercised. At the end of such exercise period, any SAR held by a Grantee as of
the date of Grantee's termination of employment and not so exercised shall
terminate. Whether an authorized leave of absence or leave on military or
government service shall
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constitute a termination of employment or other relationship for purposes of the
Plan shall be determined by the Board, which determination shall be final and
conclusive. For purposes of the Plan, a termination of employment, service or
other relationship shall not be deemed to occur if the Grantee is immediately
thereafter a director of the Company or a Subsidiary or Affiliate.
8.5. LIMITATIONS ON EXERCISE OF SARs
Notwithstanding any other provision of the Plan, in no event may any SAR be
exercised, in whole or in part, after ten years following the date upon which
the SAR is granted, or after the occurrence of an event referred to in SECTION
11 that results in an earlier termination of the SAR.
8.6. METHOD OF EXERCISE
An SAR that is exercisable may be exercised by the Grantee's delivery to
the Company of written notice of exercise on any business day, at the Company's
principal office, addressed to the attention of the Board. Such notice shall
specify the number of shares of Stock with respect to which the SAR is being
exercised. An attempt to exercise any SAR granted hereunder other than as set
forth above shall be invalid and of no force and effect. Unless otherwise stated
in the applicable Award Agreement an individual holding or exercising an SAR
shall have none of the rights of a shareholder (for example, the right to
receive cash or dividend payments or distributions attributable to the subject
shares of Stock or to direct the voting of the subject shares of Stock). Except
as provided in SECTION 11 hereof, no adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the date of
such issuance.
9. CERTAIN PROVISIONS APPLICABLE TO GRANTS
9.1. STAND-ALONE, ADDITIONAL, TANDEM, AND SUBSTITUTE GRANTS
Grants granted under the Plan may, in the discretion of the Board, be
granted either alone or in addition to, in tandem with, or in substitution or
exchange for, any other Grant or any award granted under another plan of the
Company, any Subsidiary, or any business entity to be acquired by the Company or
a Subsidiary, or any other right of a Grantee to receive payment from the
Company or any Subsidiary. Such additional, tandem, and substitute or exchange
Grants may be granted at any time. If a Grant is made in substitution or
exchange for another Grant or award, the Board shall require the surrender of
such other Grant or award in consideration for the new Grant. In addition,
Grants may be made in lieu of cash compensation, including in lieu of cash
amounts payable under other plans of the Company or any Subsidiary, in which the
value of Stock subject to the Grant is equivalent in value to the cash
compensation, or in which the exercise price, grant price or purchase price of
the Grant in the nature of a right that may be
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exercised is equal to the Fair Market Value of the underlying Stock minus the
value of the cash compensation surrendered (for example, SARs granted with an
exercise price "discounted" by the amount of the cash compensation surrendered).
9.2. FORM AND TIMING OF PAYMENT UNDER GRANTS; DEFERRALS
Subject to the terms of the Plan and any applicable Award Agreement,
payments to be made by the Company or a Subsidiary upon the exercise of an SAR
shall be made in cash, and may be made in a single payment, in installments, or
on a deferred basis. The settlement of any Grant may be accelerated in the
discretion of the Board or upon occurrence of one or more specified events.
Installment or deferred payments may be required by the Board or permitted at
the election of the Grantee on terms and conditions established by the Board.
Payments may include, without limitation, provisions for the payment or
crediting of a reasonable interest rate on installment or deferred payments.
10. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend, suspend, or
terminate the Plan as to any shares of Stock as to which Grants have not been
made. The Company may retain the right in an Award Agreement to cause a
forfeiture of the gain realized by a Grantee on account of the Grantee taking
actions in "competition with the Company," as defined in the applicable Award
Agreement. Furthermore, the Company may annul a Grant if the Grantee is an
employee of the Company or an Affiliate and is terminated "for cause" as defined
in the applicable Award Agreement. Except as permitted under this SECTION 10 or
SECTION 11 hereof, no amendment, suspension, or termination of the Plan shall,
without the consent of the Grantee, alter or impair rights or obligations under
any Grant theretofore awarded under the Plan.
11. EFFECT OF CHANGES IN CAPITALIZATION
11.1. CHANGES IN STOCK
If the outstanding shares of Stock are increased or decreased or changed
into or exchanged for a different number or kind of shares or other securities
of the Company by reason of any recapitalization, reclassification, stock
split-up, combination of shares, exchange of shares, stock dividend or other
distribution payable in capital stock, or other increase or decrease in such
shares effected without receipt of consideration by the Company occurring after
the date the SARs are granted, a proportionate and appropriate adjustment shall
be made by the Company in the number and kind of shares subject to the SARs, so
that the proportionate interest of the Grantee immediately following such event
shall, to the
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extent practicable, be the same as immediately before such event.
Any such adjustment in the SARs shall not change the total Exercise Price with
respect to the unexercised portion of the SARs but shall include a corresponding
proportionate adjustment in the Exercise Price per share.
11.2. REORGANIZATION IN WHICH THE COMPANY IS THE SURVIVING ENTITY
Subject to SECTION 11.3 hereof, if the Company shall be the surviving
Company in any reorganization, merger, or consolidation of the Company with one
or more other Companies, the SARs shall pertain to and apply to the securities
to which a holder of the number of shares of stock subject to the SARs would
have been entitled immediately following such reorganization, merger, or
consolidation, with a corresponding proportionate adjustment of the Exercise
Price per share so that the aggregate Exercise Price thereafter shall be the
same as the aggregate Exercise Price of the shares remaining subject to the SARs
immediately prior to such reorganization, merger or consolidation.
11.3. REORGANIZATION, SALE OF ASSETS OR SALE OF STOCK WHICH INVOLVES A
CHANGE OF CONTROL
The SARs shall terminate (i) upon the dissolution or liquidation of the
Company, (ii) upon a merger, consolidation, or reorganization of the Company
with one or more other companies in which the Company is not the surviving
company, (iii) upon a sale of all or substantially all of the assets of the
Company to another person or entity, or (iv) upon a merger, consolidation or
reorganization (or other transaction if so determined by the Board in its sole
discretion) in which the Company is the surviving Company, that is approved by
the Board and that results in any person or entity (other than persons who are
shareholders or Affiliates of the Company on the Effective Date) owning 80
percent or more of the combined voting power of all classes of stock of the
Company, except to the extent provision is made in writing in connection with
any such transaction covered by clauses (i) through (iv) for the assumption of
the SARs or for the substitution for the SARs of new SARs covering the stock of
a successor Company, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and exercise prices, in which
event the SARs theretofore granted shall continue in the manner and under the
terms so provided. In the event of any such termination of the SARs, the Grantee
shall have the right (subject to the general limitations on exercise set forth
in SECTION 8), during such period occurring before such termination as the Board
in its sole discretion shall determine and designate, and in any event
immediately before the occurrence of such termination, to exercise such SARs in
whole or in part, whether or not such SARs were otherwise exercisable at the
time such termination occurs. The Company shall send written notice of a
transaction or event that will result in such a termination to Grantee not later
than the time at which the Company gives notice thereof to its shareholders.
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11.4. ADJUSTMENTS
Adjustments under this SECTION 11 related to shares of Stock or securities
of the Company shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Any such adjustment shall be eliminated
in each case by rounding downward to the nearest whole share.
11.5. NO LIMITATIONS ON COMPANY
The making of Grants pursuant to the Plan shall not affect or limit in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations, or changes of its capital or business structure or to merge,
consolidate, dissolve, or liquidate, or to sell or transfer all or any part of
its business or assets.
12. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Grant or Award Agreement shall be
construed to confer upon any individual the right to remain in the employ or
service of the Company or any affiliate, or to interfere in any way with any
contractual or other right or authority of the Company either to increase or
decrease the compensation or other payments to any individual at any time, or to
terminate any employment or other relationship between any individual and the
Company. In addition, notwithstanding anything contained in the Plan to the
contrary, unless otherwise stated in the applicable Award Agreement, no Grant
awarded under the Plan shall be affected by any change of duties or position of
the Grantee so long as the Grantee continues to be a director, officer,
consultant or employee of the Company. The obligation of the Company to pay any
benefits pursuant to this Plan shall be interpreted as a contractual obligation
to pay only those amounts described herein, in the manner and under the
conditions prescribed herein. The Plan shall in no way be interpreted to require
the Company to transfer any amounts to a third party trustee or otherwise hold
any amounts in trust or escrow for payment to any Grantee or beneficiary under
the terms of the Plan. No Grantee shall have any of the rights of a shareholder
with respect to the shares of Stock subject to an SAR.
13. NONEXCLUSIVITY OF THE PLAN
The adoption of the Plan shall not be construed as creating any limitations
upon the right and authority of the Board to adopt such other incentive
compensation arrangements (which arrangements may be applicable either generally
to a class or classes of individuals or specifically to a particular individual
or particular individuals) as the Board in its discretion determines desirable,
including, without limitation, the granting of SARs otherwise than under the
Plan.
14. WITHHOLDING TAXES
The Company or a Subsidiary, as the case may be, shall have the right to
deduct from payments of any kind otherwise due to a Grantee any Federal, state,
or
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local taxes of any kind required by law to be withheld with respect to
the vesting of or other lapse of restrictions applicable to a Grant. At the time
of such vesting, lapse, or exercise, the Grantee shall pay to the Company or the
Subsidiary, as the case may be, any amount that the Company or the Subsidiary
may reasonably determine to be necessary to satisfy such withholding obligation.
15. CAPTIONS
The use of captions in this Plan or any Award Agreement is for the
convenience of reference only and shall not affect the meaning of any provision
of the Plan or such Award Agreement.
16. OTHER PROVISIONS
Each Grant awarded under the Plan may contain such other terms and
conditions not inconsistent with the Plan as may be determined by the Board, in
its sole discretion.
17. NUMBER AND GENDER
With respect to words used in this Plan, the singular form shall include
the plural form, the masculine gender shall include the feminine gender, etc.,
as the context requires.
18. SEVERABILITY
If any provision of the Plan or any Award Agreement shall be determined to
be illegal or unenforceable by any court of law in any jurisdiction, the
remaining provisions hereof and thereof shall be severable and enforceable in
accordance with their terms, and all provisions shall remain enforceable in any
other jurisdiction.
19. GOVERNING LAW
The validity and construction of this Plan and the instruments evidencing
the Grants awarded hereunder shall be governed by the laws of Delaware (without
giving effect to the choice of law provisions thereof).
* * *
The Plan was duly adopted and approved by the Board of Directors of the
Company as of the 1st day of October, 2001.
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Secretary
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