EXHIBIT 4.3.1
FORM OF
RESTRICTED STOCK AGREEMENT
FOR THE
▇. ▇. ▇▇▇▇ TRANSPORT SERVICES, INC.
AMENDED AND RESTATED MANAGEMENT INCENTIVE PLAN
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THIS Restricted Stock Agreement ("Agreement") made as of
______________, by and between ▇. ▇. ▇▇▇▇ Transport Services, Inc. ("Company")
and ______________ ("Recipient"):
WHEREAS, the Company maintains the ▇.▇. ▇▇▇▇ Transport Services, Inc.
Amended and Restated Management Incentive Plan (the "Plan") under which the
Company's Compensation Committee of the Board of Directors ("Committee") may,
among other things, award shares of the Company's $.01 par value common stock
("Common Stock") to such members of the Company's management as the Committee
may determine, subject to terms, conditions, or restrictions as it may deem
appropriate;
WHEREAS, pursuant to the Plan the Committee has awarded to Recipient, a
Restricted Stock Award ("Award") conditioned upon the execution by the Company
and the Recipient of this Agreement setting forth all the terms and conditions
applicable to such Award in accordance with the laws of the State of Arkansas;
THEREFORE, in consideration of the past services of the Recipient and
the mutual promises and covenants contained herein it is hereby agreed as
follows:
1. AWARD OF SHARES:
Under the terms of the Plan, the Committee has awarded to the Recipient
an Award on ________________ ("Award Date"), for _____________ shares of Common
Stock subject to the terms, conditions and restrictions set forth in this
Agreement. There will be no purchase price required by the Recipient in
connection with this transaction.
2. AWARD RESTRICTIONS:
The Award vests as described below and shall expire ________________.
Vesting to occur over the period of ___________ in _______________
increments of _____%.
Upon vesting date and upon satisfaction of the requirements of
Paragraph 5, the Company shall cause a stock certificate to be delivered,
without legend, in an amount reflecting the number of shares vested less any
previously delivered shares registered on the Company's books in the name of the
Recipient or the Recipient's beneficiary. Upon receipt of such stock
certificate, the Recipient or beneficiary are free, upon compliance with
applicable law, to hold or dispose of such certificate at will.
During the vesting period, those shares covered by the Award, but not
vested, are not transferable by the Recipient by means of sale, assignment,
exchange, pledge or otherwise. However, during the vesting period, the Recipient
does have the right to tender for sale or exchange with the Company's
written consent, any such shares in the event of any tender offer within the
meaning of Section 14(d) of the Securities Exchange Act of 1934.
3. STOCK CERTIFICATES:
An entry evidencing the Award shall be made on the Company's books and
stock certificates will be issued in the name of the Recipient as of the Award
date. Physical possession and custody of any stock certificates evidencing the
Award shall be retained by the Company until such time as the vesting date
occurs and payment of taxes is received by the Company for the Award. While in
its possession, the Company reserves the right to place a legend on any stock
certificates restricting the transferability of such certificates and referring
to the terms and conditions (including forfeiture) approved by the Committee and
applicable to the shares represented by the certificates.
During the vesting period, except as otherwise provided in Paragraph 2
of the Agreement, the Recipient shall be entitled to all rights of a stockholder
of the Company, including the right to vote the shares and receive dividends and
other distributions declared on any non-vested shares.
4. EMPLOYMENT TERMINATION:
If the Recipient terminates employment with the Company due to death or
disability during the vesting period, that Award, to the extent not already
vested, shall vest in full as of the date of such termination. If the
Recipient's employment terminates on account of "early retirement" (as defined
by the Committee), or under special circumstances determined by the Committee,
the Award, to the extent not already vested, may be forfeited (or may be vested
in full or in part) as determined by the Committee. Termination of the
Recipient's employment with the Company for any other reason shall result in
forfeiture of the Award on the date of termination to the extent not already
vested. The recipient may designate a beneficiary to receive the stock
certificate representing that portion of the Award automatically vested upon
death. The Recipient has the right to change such beneficiary designation at
will.
5. WITHHOLDING TAXES:
The Company will require the Recipient receiving the shares of Common
Stock under an Award, to reimburse the Company for such taxes required to be
withheld by the Company and withhold any distribution in whole or in part until
the Company is so reimbursed. In lieu thereof, the Company shall have the right
to 1) withhold from any cash amounts due or to become due from the Company to
the Recipient an amount equal to such taxes required to be withheld by the
Company or, 2) retain and withhold a number of shares having a market value not
less than the amount of such taxes and cancel (in whole or in part) any such
shares so withheld in order to reimburse the Company for any such taxes.
6. IMPACT ON OTHER BENEFITS:
The value of the Award (either on the Award Date or at the time the
shares are vested) shall not be includable as compensation or earnings for
purposes of any other benefit plan offered by the Company.
7. ACCELERATION OF VESTING:
Notwithstanding anything contained in this agreement to the contrary,
in the event that, at any time following the date of a "change of control" (as
hereinafter defined) (i) a recipient's employment with the Company or one of its
subsidiaries terminates as a result of such recipient's retirement, termination
without "just cause" (as hereinafter defined) by the Company or one of its
subsidiaries, or resignation by
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the recipient for good reason; or (ii) with respect to a recipient employed by
one of the Company's subsidiaries, a "sale transaction" (as hereinafter defined)
is effected; then all vesting restrictions on any shares of the Company's common
stock or acquiring Company common stock awarded to that participant under this
Agreement shall immediately lapse and such shares shall be vested.
For purposes of this Plan, "just cause" shall mean the willful and
continued failure of a recipient to substantially perform his duties with the
Company or one of its subsidiaries after a written demand for substantial
performance is delivered to such participant by the Board of Directors of the
Company, or its subsidiary, which specifically identifies the manner in which
the board believes that such participant has not substantially performed his
duties; or willful misconduct by the recipient materially injures the Company or
its subsidiaries monetarily or otherwise (it being understood that no act, or
failure to act, on the part of a recipient shall be considered "willful" unless
done, or omitted to be done, by such recipient in bad faith and with knowledge
that the action or omission was not in the best interest of the Company or such
subsidiary).
"Sale transaction" shall mean, with respect to an employee of one of
the Company's subsidiaries, the direct or indirect sale or other disposition by
the Company of in excess of fifty percent (50%) of the voting capital stock of
such subsidiary, the complete liquidation of such subsidiary, or the sale by
such subsidiary or all or substantially all of its assets.
For purposes of this Paragraph 7, "change of control" means:
(1) Any transaction involving the acquisition ("Acquisition
Transaction"), by any person, corporation, partnership or
other entity, or any group (collectively referred to herein as
a "person"), of beneficial ownership of shares representing
thirty percent (30%) or more of the Company's then outstanding
voting securities entitled to vote generally in the election
of directors ("Voting Securities"), but excluding, for this
purpose, any such acquisition by (a) the Company or any of its
subsidiaries or any employee benefit plan (or related trust)
of the Company, or any of its subsidiaries, or (b) any
corporation with respect to which immediately following such
acquisition, shares representing more than fifty percent (50%)
of such corporation's Voting Securities are beneficially
owned, directly or indirectly, by those persons who are the
beneficial owners of the Company's voting securities
immediately prior to such acquisition; or
(2) Persons who as of _______ constitute the Company's board of
directors (the "Incumbent Board") cease, for any reason, to
constitute at least a majority of the board, provided that any
person becoming a director of the Company subsequent to
________ whose election was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall, for the purposes of this Agreement, be considered to be
a member of the Incumbent Board; or
(3) Approval by the stockholders of the Company of a
reorganization, merger or consolidation with respect to which
those persons who were the beneficial owners of the Company's
voting securities immediately prior to such reorganization,
merger or consolidation, do not, following such
reorganization, merger or consolidation, beneficially own,
directly or indirectly, shares representing more than fifty
percent (50%) of the voting securities of the corporation
resulting from such reorganization, merger or consolidation,
or a complete liquidation or
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dissolution of the Company or the sale or other disposition of
all or substantially all of the assets of the Company.
For purposes of this Paragraph 7, "acquisition transaction"
means any of the following events:
(a) A merger, reorganization or consolidation involving the
Company in which the outstanding stock is converted into or
exchanged for the common stock of another entity, provided
that such other entity has not, prior to or at the time of
such merger, reorganization or consolidation, directly or
indirectly acquired beneficial ownership of in excess of
twenty percent (20%) of the outstanding shares of the Company
for consideration other than such common stock (such a merger,
reorganization or consolidation being herein referred to as a
"Stock Merger Transaction"); or
(b) Any merger, reorganization or consolidation involving the
Company which is not a Stock Merger Transaction and with
respect to which these persons who were the beneficial owners
of the Company stock immediately prior to such merger,
reorganization, or consolidation, do not, following such
merger, reorganization, or consolidation, beneficially own,
directly or indirectly, shares representing more than fifty
percent (50%) of the common stock of the corporation resulting
from such merger, reorganization or consolidation, or a
complete liquidation or dissolution of the Company or the sale
or other disposition of all or substantially all of the assets
of the Company.
8. ADMINISTRATION:
The Committee shall have full authority and discretion (subject only to
the express provisions of the Plan) to decide all matters relating to the
administration and interpretation of the Plan and this Agreement. All such
Committee determinations shall be final, conclusive and binding upon the
Company, the Recipient, and any and all interested parties.
9. RIGHT TO CONTINUED EMPLOYMENT:
Nothing in this Agreement or in the Plan shall confer on a Recipient
any right to continue in the employ of the Company or in any way affect the
Company's right to terminate the Recipient's employment without prior notice at
any time for any and no reason.
10. AMENDMENTS:
This Agreement shall be subject to the terms of the Plan as amended
except that the Award that is the subject of this Agreement may not in any way
be restricted or limited by any Plan amendment or termination approved after the
date of the award without the Recipient's written consent.
11. FORCE AND EFFECT:
The various provisions of this Agreement are severable in their
entirety. Any determination of invalidity or unenforceability of any one
provision shall have no effect on the continuing force and effect of the
remaining provisions.
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12. PREVAILING LAWS:
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Arkansas applicable to corporations and the
issuance of stock by Arkansas corporations.
13. SUCCESSORS:
This Agreement shall be binding upon and inure to the benefit of the
successors, assigns and heirs of the respective parties.
14. NOTICE:
Unless waived by the Company, any notice to the Company required under
or relating to this Agreement shall be in writing and addressed to:
▇. ▇. ▇▇▇▇ TRANSPORT SERVICES, INC.
Attention: J. ▇▇▇▇ ▇▇▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
15. TERMS
Any terms used in this Agreement that are not otherwise defined shall
have the meanings prescribed to them in the Plan.
16. ENTIRE AGREEMENT:
This Agreement contains the entire understanding of the parties and
shall not be modified or amended except in writing and duly signed by the
parties. No waiver by either party of any default under this Agreement shall be
deemed a waiver of any later default.
IN WITNESS THEREOF, the parties have signed this Agreement as of the
date hereof.
▇. ▇. ▇▇▇▇ TRANSPORT SERVICES, INC.
By:
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J. ▇▇▇▇ ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Recipient:
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