UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 1, 2009
WERNER ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
NEBRASKA 0-14690 47-0648386 NEBRASKA 0-14690 47-0648386 |
(State or other jurisdiction of (Commission File (IRS Employer incorporation) Number) Identification No.) 14507 FRONTIER ROAD POST OFFICE BOX 45308 OMAHA, NEBRASKA 68145 (Address of principal (Zip Code) executive offices) |
Registrant's telephone number, including area code: (402) 895-6640
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 5.02. DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF
DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY
ARRANGEMENTS OF CERTAIN OFFICERS.
On December 1, 2009, the Compensation Committee (the "Committee") of the Board of Directors of the registrant approved the following performance- based compensation awards, in the form of annual cash bonuses, and long- term incentive compensation awards, in the form of restricted stock, to the registrant's principal executive officer, principal financial officer and other named executive officers:
CASH RESTRICTED NAME TITLE BONUS STOCK ---- ----- ----- ----- Clarence L. Werner Chairman of the Board $0 0 Gary L. Werner Vice Chairman $205,000 30,000 Gregory L. Werner President and Chief Executive $300,000 30,000 Officer Derek J. Leathers Senior Executive Vice President - $240,000 30,000 Value Added Services & International and Chief Operating Officer John J. Steele Executive Vice President, $110,000 10,000 Treasurer and Chief Financial Officer |
The annual cash bonuses were awarded under the registrant's discretionary annual cash bonus program and will be paid on December 7, 2009. Such performance-based compensation awards are determined at the sole discretion of the Committee.
The restricted stock was awarded in accordance with the provisions of the Werner Enterprises, Inc. Equity Plan and is subject to service-based vesting provisions. The shares will vest annually in five increments of 20% each, beginning 3 years after the grant date. The awards will become fully vested on December 1, 2016. The notice of grant pursuant to which the Company makes awards of restricted stock is included as an exhibit to this Form 8-K. Such long-term incentive compensation awards are determined at the sole discretion of the Committee.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
10.1 Form of Restricted Stock Award Agreement for recipients under the Werner Enterprises, Inc. Equity Plan.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
WERNER ENTERPRISES, INC.
Date: December 4, 2009 By: /s/ John J. Steele ----------------------- ------------------------------ John J. Steele Executive Vice President, Treasurer and Chief Financial Officer Date: December 4, 2009 By: /s/ James L. Johnson ----------------------- ------------------------------ James L. Johnson Senior Vice President, Controller and Corporate Secretary |
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:
(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
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.
(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.
(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):
(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.
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.
(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.
(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.
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: --------------------------- --------------------------- Signature Signature --------------------------- --------------------------- Name (Print) Name (Print) --------------------------- --------------------------- Title Title |
WERNER ENTERPRISES, INC.
EQUITY PLAN
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.