RUSH ENTERPRISES, INC. 2007 LONG-TERM INCENTIVE PLAN RESTRICTED STOCK UNIT AWARD AGREEMENT [ ] Employee
Exhibit 10.1
RUSH ENTERPRISES, INC.
2007 LONG-TERM INCENTIVE PLAN
2007 LONG-TERM INCENTIVE PLAN
[ ]
Employee
Employee
Date of Award:
|
[ ] | |
Number of Restricted Stock Units:
|
[ ] | |
Expiration Date:
|
10 years from the Date of Award | |
General Vesting Schedule/Restricted Period: |
3 years, vesting 1/3 on the 13th month after the Date of Award and 1/3 on the second and third anniversary date of the Date of Award. |
1. Grant of RSU Award. Rush Enterprises, Inc. (the “Company”), pursuant to the Rush
Enterprises, Inc. 2007 Long-Term Incentive Plan (the “Plan”), hereby awards to you, the above-named
Employee, effective as of the Date of Award set forth above (the “Date of Award”), that number of
restricted stock units set forth above (the “RSUs”), on the terms and conditions set forth in this
Agreement. All of the RSUs will be subject to the prohibition on the transfer of the RSUs and the
obligations to forfeit the RSUs to the Company as set forth in Section 3 of this Agreement
(“Forfeiture Restrictions”). During the period that the RSUs are subject to Forfeiture
Restrictions, the RSUs will be evidenced by entries in a bookkeeping ledger account that reflect
the number of RSUs credited under the Plan for your benefit.
2. Effect of the Plan. The RSUs awarded to Employee are subject to all of the terms
and conditions of the Plan, which terms and conditions are incorporated herein for all purposes,
and of this Agreement together with all rules and determinations from time to time issued by the
Committee and by the Board pursuant to the Plan. The Company hereby reserves the right to amend,
modify, restate, supplement or terminate the Plan without the consent of Employee, so long as such
amendment, modification, restatement or supplement does not materially reduce the rights and
benefits available to Employee hereunder, and this Award will be subject, without further action by
the Company or Employee, to such amendment, modification, restatement or supplement unless provided
otherwise therein. The Company further reserves the right to amend, modify, restate, supplement or
terminate the Plan and this Agreement without the consent of Employee in order to comply with any
applicable law, regulation, or Company policy, including any law, regulation, or policy that could
require forfeiture of this Award, repayment of any amounts paid pursuant to this Award, or
cancellation of any stock issued pursuant to this Award. Capitalized terms used but not defined in
this Agreement have the meanings ascribed to such terms in the Plan.
3. Restrictions. Employee hereby accepts the Award of the RSUs and agrees with
respect thereto as follows:
(a) No Transfer. Unless otherwise determined by the Committee and provided in this
Agreement or the Plan, the RSUs may not be sold, assigned, pledged, exchanged, hypothecated
or otherwise transferred except by will or the laws of decent and distribution. The
Forfeiture Restrictions shall be binding upon and enforceable against any permitted
transferee of the Restricted Shares.
(b) Mandatory Mediation and Arbitration Procedure. By execution of this Agreement and
acceptance of this Award, which is a voluntary benefit provided to the Employee by the
Company, the Employee waives the Employee’s right to a jury trial in state or federal court
and agrees that disputes arising under this Agreement must first be submitted for non-binding mediation before a neutral third party. If a dispute remains unresolved
at the conclusion of the mediation process, either party may submit the dispute for
resolution by final binding arbitration. The arbitrator shall have the authority to allow
for appropriate discovery and exchange of information prior to a hearing, including (but not
limited to) production of documents, information requests, depositions, and subpoenas. By
execution of this Agreement, however, the Employee does not waive the Employee’s right to
any normally available remedies the Employee may have in connection with any claim the
Employee may bring against the Company, as an arbitrator can award any normal remedies the
Employee could get in a court proceeding. By execution of this Agreement, the Employee
represents that to the extent the Employee considered necessary, the Employee has sought, at
the Employee’s own expense, counsel regarding the terms of this Agreement and the waiver
contemplated in this paragraph (b) of Section 3. If this arbitration provision is found
inapplicable, then either party may file suit and each party agrees that any suit, action,
or proceeding arising out of or relating to this Agreement shall be brought in the United
States District Court for the Western District of Texas (or should such court lack
jurisdiction to hear such action, suit or proceeding, in a Texas State court in Bexar
County, Texas) and that the parties shall submit to the jurisdiction of such court. The
parties irrevocably waive, to the fullest extent permitted by law, any objection a party may
have to the laying of venue for any such suit, action or proceeding brought in such court.
THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH
SUIT, ACTION OR PROCEEDING.
(c) Forfeiture of RSUs. If Employee terminates service with the Company and its
Subsidiaries prior to the date that the Forfeiture Restrictions lapse (the “Restriction
Lapse Date”) for any reason other than Employee’s death or Disability, or if Employee (or
Employee’s estate) initiates a legal proceeding against the Company other than pursuant to
the terms of paragraph (b) of this Section 3, then Employee (or Employee’s estate, as
applicable) shall, for no consideration, forfeit any right to any outstanding RSUs.
Notwithstanding the foregoing, the Committee or its designee may, in the Committee’s or the
designee’s sole and absolute discretion, as applicable, provide for the acceleration of the
vesting of the RSUs, eliminate or make less restrictive any restrictions contained in this
Agreement, waive any restriction or other provision of the Plan or this Agreement or
otherwise amend or modify this Agreement in any manner that is either (i) not adverse to
Employee, or (ii) consented to by Employee.
(d) Lapse of Forfeiture Restrictions. If Employee provides continuous, eligible
service to the Company and its Subsidiaries as determined by the Committee or its designee,
in the Committee’s or the designee’s sole and absolute discretion, as applicable, the
Forfeiture Restrictions will lapse with respect to one-third (33.33%) of the RSUs 13 months
following the Date of Award; an additional one-third (33.33%) on the second anniversary of
the Date of Award; and the final one-third (33.34%) on the third anniversary of the Date of
Award.
(e) Death or Disability. If Employee dies or becomes subject to a Disability (as
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the “Code”))
while employed by the Company and its Subsidiaries, the Forfeiture Restrictions will lapse
(unless previously terminated pursuant to paragraph (c) of this Section 3).
(f) Change in Control. If a Change in Control occurs during the term of this
Agreement, the Forfeiture Restrictions will lapse with respect to 100% of the RSUs.
2
4. Settlement of RSUs. The Company will issue you one share of Common Stock, less
applicable withholding, in exchange for each RSU that is awarded to you under this Agreement.
Settlement of each RSU will occur on each Restriction Lapse Date with respect to those RSUs no
longer subject to a Forfeiture Restriction unless you elect to defer settlement under the Rush
Enterprises, Inc. Deferred Compensation Plan. Following settlement of each RSU, you will have no
further rights with respect to such RSU.
5. Tax Withholding. To the extent that the receipt of the RSUs or the Agreement, the
vesting of the RSUs or a distribution under the Agreement results in income to you for federal,
state or local income, employment or other tax purposes with respect to which the Company has a
withholding obligation, you shall deliver to the Company at the time of such receipt, vesting or
exercise, as the case may be, such amount of money as the Company may require to meet its
obligation under applicable tax laws or regulations, and, if you fail to do so, the Company is
authorized to withhold from any payment due under the Agreement or from any cash or stock
remuneration then or thereafter payable to you any tax required to be withheld by reason of such
taxable income, sufficient to satisfy the withholding obligation based on the last per share sales
price of the Common Stock of the Company for the trading day immediately preceding the date that
the withholding obligation arises, as reported in the NASDAQ Composite Transactions.
Employee acknowledges that the tax consequences associated with the Award are complex and that
the Company has urged Employee to review with Employee’s own tax advisors the federal, state, and
local tax consequences of this Award. Employee is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents. Employee understands that
Employee (and not the Company) shall be responsible for Employee’s own tax liability that may arise
as a result of this Agreement.
6. Sale of Securities. Any shares of the Company’s Common Stock awarded hereunder may
not be sold or otherwise disposed of in any manner that would constitute a violation of any
applicable federal or state securities laws or any provisions of the Company’s Xxxxxxx Xxxxxxx
Policy. You agree that (a) the Company may refuse to cause the transfer of such shares to be
registered on the stock register of the Company if such proposed transfer would in the opinion of
counsel satisfactory to the Company constitute a violation of any applicable federal or state
securities law and (b) the Company may give related instructions to the transfer agent, if any, to
stop registration of the transfer of such shares.
7. Community Interest of Spouse. The community interest, if any, of any spouse of
Employee in any of the RSUs shall be subject to all of the terms, conditions and restrictions of
this Agreement and the Plan, and shall be forfeited and surrendered to the Company upon the
occurrence of any of the events requiring Employee’s interest in such Restricted Shares to be so
forfeited and surrendered pursuant to this Agreement.
8. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
any successors to the Company and all persons lawfully claiming under Employee.
3
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by an authorized
officer and Employee has executed this Agreement, all as of the date first above written.
| RUSH ENTERPRISES, INC. |
||||
| X.X. “Xxxxx” Rush, | ||||
| Chief Executive Officer and President | ||||
EMPLOYEE ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT OR THE PLAN CONFERS UPON EMPLOYEE
ANY RIGHT WITH RESPECT TO FUTURE AWARDS OR CONTINUATION OF EMPLOYEE’S SERVICE TO THE COMPANY.
Employee acknowledges receipt of a copy of the Plan, represents that he or she is familiar with the
terms and provisions thereof, and hereby accepts the RSU Award subject to all of the terms and
provisions hereof and thereof. Employee has reviewed this Agreement and the Plan in their
entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement,
and fully understands all provisions of this Agreement and the Plan.
DATED:
|
SIGNED: | |||||||
| EMPLOYEE |
4
