EXHIBIT 10.43
WABASH NATIONAL CORPORATION
EXECUTIVE RESTRICTED STOCK AGREEMENT
Wabash National Corporation, a Delaware corporation (the "Company"),
hereby grants shares of its common stock, $.01 par value, (the "Stock") to the
Grantee named below, subject to the vesting conditions set forth in the
attachment.
Grant Date: May 6, 2002
Name of Grantee: Xxxxxxx X. Xxxxxxx
Grantee's Social Security Number: _____-____-_____
Number of Shares of Stock Covered by Grant: _________
Purchase Price per Share of Stock: $.01
BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED IN THE ATTACHED AGREEMENT.
Grantee:
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(Signature)
Company:
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(Signature)
Title:
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Attachment
This is not a stock certificate or a negotiable instrument.
WABASH NATIONAL CORPORATION
EXECUTIVE RESTRICTED STOCK AGREEMENT
RESTRICTED STOCK/ This grant is an award of Stock in the number
NONTRANSFERABILITY of shares set forth on the cover sheet, at the
purchase price set forth on the cover sheet,
and subject to the vesting conditions
described below ("Restricted Stock"). You
agree to pay the purchase price for the
Restricted Stock concurrent with your
execution of this agreement. To the extent not
yet vested, your Restricted Stock may not be
transferred, assigned, pledged or
hypothecated, whether by operation of law or
otherwise, nor may the Restricted Stock be
made subject to execution, attachment or
similar process.
ISSUANCE AND VESTING The Company will issue your Restricted Stock
in your name as of the Xxxxx Date.
This Restricted Stock grant vests as to 100%
of the total number of shares covered by this
grant on the first to occur of: (i) your
termination by the Company without cause or
for good reason within 180 days following a
change of control pursuant to Section 5.4 of
your employment agreement with the Company
dated April 12, 2002 (the "Employment
Agreement"), or (ii) March 31, 2005.
Notwithstanding anything to the contrary
contained in this Agreement or the Employment
Agreement, this Restricted Stock grant is not
subject to forfeiture on a termination of your
employment with the Company for any reason.
FORFEITURE AND REPURCHASE FOR If and to the extent that (i) you realize
UNVESTED STOCK value from the 150 shares of common stock of
Accuride Corporation which you own on the date
of grant of the Restricted Stock (the
"Accuride Shares"), whether such shares are
redeemed by Accuride, exchanged for cash,
notes and/or publicly traded securities or
otherwise, or (ii) Accuride Corporation
securities become publicly traded, prior to
March 31, 2005, you will forfeit and return to
the Company a percentage of unvested shares of
Restricted Stock equal to (A) the percentage
of $262,500 realized by you, or (B) the
percentage the fair market value of the
Accuride Corporation common stock is, if it
has become publicly traded, of $262,500. The
Company will repay the amount that you paid
for those shares of Stock, if any, which
amount shall be paid in cash.
ESCROW The certificates for the Restricted Stock
shall be deposited in escrow with the
Secretary of the Company to be held in
accordance with the provisions of this
paragraph. Each deposited certificate shall be
accompanied by a duly executed
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Assignment Separate from Certificate in the
form attached hereto as Exhibit A. The
deposited certificates shall remain in escrow
until such time or times as the certificates
are to be released or otherwise surrendered
for cancellation as discussed below. Upon
delivery of the certificates to the Company,
you shall be issued an instrument of deposit
acknowledging the number of shares of Stock
delivered in escrow to the Secretary of the
Company.
All regular cash dividends on the Stock (or
other securities at the time held in escrow)
shall be paid directly to you and shall not be
held in escrow. However, in the event of any
stock dividend, stock split, recapitalization
or other change affecting the Company's
outstanding common stock as a class effected
without receipt of consideration or in the
event of a stock split, a stock dividend or a
similar change in the Company Stock, any new,
substituted or additional securities or other
property which is by reason of such
transaction distributed with respect to the
Stock shall be immediately delivered to the
Secretary of the Company to be held in escrow
hereunder, but only to the extent the Stock is
at the time subject to the escrow requirements
hereof.
The shares of Stock held in escrow hereunder
shall be subject to the following terms and
conditions relating to their release from
escrow or their surrender to the Company for
repurchase and cancellation:
o As your interest in the shares vests as
described above, the certificates for such
vested shares shall be released from
escrow and delivered to you, at your
request.
o Should the Company exercise its Repurchase
Right with respect to any unvested shares
held at the time in escrow hereunder, then
the escrowed certificates for such
unvested shares shall, concurrently with
the payment of the purchase price for such
shares of Stock, be surrendered to the
Company for cancellation, and you shall
have no further rights with respect to
such shares of Stock.
o Should the Company elect not to exercise
its Repurchase Right with respect to any
shares held at the time in escrow
hereunder, then the escrowed certificates
for such shares shall be surrendered to
you.
WITHHOLDING TAXES You agree, as a condition of this grant, that
you will make acceptable arrangements to pay
any withholding or other taxes
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that may be due as a result of the vesting of
Stock acquired under this grant. In the event
that the Company determines that any federal,
state, local or foreign tax or withholding
payment is required relating to the vesting of
shares arising from this grant, the Company
shall have the right to require such payments
from you, or withhold such amounts from other
payments due to you from the Company.
SECTION 83(b) Under Section 83 of the Internal Revenue Code
ELECTION of 1986, as amended (the "Code"), the
difference between the purchase price paid for
the shares of Stock and their fair market
value on the date any forfeiture restrictions
applicable to such shares lapse will be
reportable as ordinary income at that time.
For this purpose, "forfeiture restrictions"
include the Company's Repurchase Right as to
unvested Stock described above. You may elect
to be taxed at the time the shares are
acquired rather than when such shares cease to
be subject to such forfeiture restrictions by
filing an election under Section 83(b) of the
Code with the Internal Revenue Service within
thirty (30) days after the Grant Date. You
will have to make a tax payment to the extent
the purchase price is less than the fair
market value of the shares on the Grant Date.
No tax payment will have to be made to the
extent the purchase price is at least equal to
the fair market value of the shares on the
Grant Date. The form for making this election
is attached as Exhibit B hereto. Failure to
make this filing within the thirty (30) day
period will result in the recognition of
ordinary income by you (in the event the fair
market value of the shares increases after the
date of purchase) as the forfeiture
restrictions lapse.
YOU ACKNOWLEDGE THAT IT IS YOUR SOLE
RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE
A TIMELY ELECTION UNDER SECTION 83(b), EVEN IF
YOU REQUEST THE COMPANY OR ITS REPRESENTATIVES
TO MAKE THIS FILING ON YOUR BEHALF. YOU ARE
RELYING SOLELY ON YOUR OWN ADVISORS WITH
RESPECT TO THE DECISION AS TO WHETHER OR NOT
TO FILE ANY 83(b) ELECTION.
SHAREHOLDER RIGHTS You have the right to vote the Restricted
Stock and to receive any dividends declared or
paid on such stock. Any distributions you
receive as a result of any stock split, stock
dividend, combination of shares or other
similar transaction shall be deemed to be a
part of the Restricted Stock and subject to
the same conditions and restrictions
applicable thereto. The Company may in its
sole discretion require any dividends paid
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on the Restricted Stock to be reinvested in
shares of Stock, which the Company may in its
sole discretion deem to be a part of the
shares of Restricted Stock and subject to the
same conditions and restrictions applicable
thereto. No adjustments are made for dividends
or other rights if the applicable record date
occurs before your stock certificate is
issued.
ADJUSTMENTS In the event of a stock split, a stock
dividend or a similar change in the Company
stock, the number of shares covered by this
grant shall be adjusted (and rounded down to
the nearest whole number). Your Restricted
Stock shall be subject to the terms of the
agreement of merger, liquidation or
reorganization in the event the Company is
subject to such corporate activity.
LEGENDS All certificates representing the Stock issued
in connection with this grant shall, where
applicable, have endorsed thereon the
following legends:
"THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND OPTIONS TO
PURCHASE SUCH SHARES SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE
REGISTERED HOLDER, OR HIS OR HER
PREDECESSOR IN INTEREST. A COPY OF SUCH
AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY BY THE HOLDER OF
RECORD OF THE SHARES REPRESENTED BY THIS
CERTIFICATE."
APPLICABLE LAW This Agreement will be interpreted and
enforced under the laws of the State of
Delaware, other than any conflicts or choice
of law rule or principle that might otherwise
refer construction or interpretation of this
Agreement to the substantive law of another
jurisdiction.
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, _____________hereby sells, assigns and transfers unto
Wabash National Corporation, a Delaware corporation (the "Company"),
____________(__________) shares of common stock of the Company represented by
Certificate No. ___ herewith and does hereby irrevocable constitute and appoint
______________ Attorney to transfer the said stock on the books of the Company
with full power of substitution in the premises.
Dated:____________, 2002
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Print Name
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Signature
Spouse Consent (if applicable)
___________________ (Purchaser's spouse) indicates by the execution of this
Assignment his or her consent to be bound by the terms herein as to his or her
interests, whether as community property or otherwise, if any, in the shares of
common stock of the Company.
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Signature
INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
THE PURPOSE OF THIS ASSIGNMENT IS TO ENABLE THE COMPANY TO EXERCISE ITS
"REPURCHASE OPTION" SET FORTH IN THE AGREEMENT WITHOUT REQUIRING ADDITIONAL
SIGNATURES ON THE PART OF PURCHASER.
EXHIBIT B
ELECTION UNDER SECTION 83(b) OF
THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to Section 83(b) of
the Internal Revenue Code with respect to the property described below and
supplies the following information in accordance with the regulations
promulgated thereunder:
1. The name, address and social security number of the undersigned:
Name:
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Address:
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Social Security No.:
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2. Description of property with respect to which the election is being
made:
_________ shares of common stock, par value $.01 per share, Wabash
National Corporation, a Delaware corporation, (the "Company").
3. The date on which the property was transferred is ________ __, 2002.
4. The taxable year to which this election relates is calendar year
2002.
5. Nature of restrictions to which the property is subject:
The shares of stock are subject to the provisions of a Restricted
Stock Agreement between the undersigned and the Company. The shares of
stock are subject to forfeiture under the terms of the Agreement.
6. The fair market value of the property at the time of transfer
(determined without regard to any lapse restriction) was $__________ per share,
for a total of $__________.
7. The amount paid by taxpayer for the property was $__________.
8. A copy of this statement has been furnished to the Company.
Dated: _____________, 2002
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Taxpayer's Signature
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Taxpayer's Printed Name
PROCEDURES FOR MAKING ELECTION
UNDER INTERNAL REVENUE CODE SECTION 83(b)
The following procedures MUST be followed with respect to the attached
form for making an election under Internal Revenue Code section 83(b) in order
for the election to be effective:
1. You must file one copy of the completed election form with the IRS
Service Center where you file your federal income tax returns within 30 days
after the Grant Date of your Restricted Stock.
2. At the same time you file the election form with the IRS, you must
also give a copy of the election form to the Secretary of the Company.
3. YOU MUST FILE ANOTHER COPY OF THE ELECTION FORM WITH YOUR FEDERAL
INCOME TAX RETURN (GENERALLY, FORM 1040) FOR THE TAXABLE YEAR IN WHICH THE STOCK
IS TRANSFERRED TO YOU.
