Form of Restricted Stock Unit Award Agreement (Employees) (for 2021 awards)
RESTRICTED STOCK UNIT AWARD AGREEMENT
First Name MI Last Name
Restricted Stock Units Awarded:
This Restricted Stock Unit Award Agreement (this “Agreement”) is dated as of this [ ] day of [ ] [ ] (the “Grant Date”), and is between ArcBest Corporation (the “Company”) and [First Name/MI//Last Name] (“Participant”).
WHEREAS, the Company, by action of the Board and approval of its shareholders established the ArcBest Corporation Ownership Incentive Plan (the “Plan”);
WHEREAS, Participant is employed by the Company or a Subsidiary and the Company desires to encourage Participant to own Common Stock for the purposes stated in Section 1 of the Plan;
WHEREAS, Participant and the Company have entered into this Agreement to govern the terms of the Restricted Stock Unit Award (as defined below) granted to Participant by the Company.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as follows:
Defined terms in the Plan shall have the same meaning in this Agreement, except where the context otherwise requires.
|2.||Grant of Restricted Stock Units|
On the Grant Date, the Company hereby grants to Participant an Award of [ ] Restricted Stock Units (the “Award”) in accordance with Section 9 of the Plan and subject to the conditions set forth in this Agreement and the Plan (as amended from time to time). Each Restricted Stock Unit subject to the Award represents the right to receive one Share (as adjusted from time to time pursuant to Paragraph 13 hereof and/or Section 13 of the Plan) upon the terms and subject to the conditions (including the vesting conditions) set forth in this Agreement and the Plan. By accepting the Award, Participant irrevocably agrees on behalf of Participant and Participant’s successors and permitted assigns to all of the terms and conditions of the Award as set forth in or pursuant to this Agreement and the Plan (as such Plan may be amended from time
In addition, Participant consents to receive documents from the Company and any plan administrator by means of electronic delivery, provided that such delivery complies with applicable law, including, without limitation, documents pursuant or relating to any equity award granted to you under the Plan or any other current or future equity or other benefit plan of the Company (the “Company’s Equity Plans”). This consent shall be effective for the entire time that you are a participant in a Company Equity Plan.
For purposes of this Agreement, the term “Normal Retirement” shall mean Participant’s retirement from active employment by or service with the Company or any Subsidiary on or after age 65.
For purposes of this Agreement, the term “Early Retirement” shall mean Participant’s retirement from active employment by or service with the Company or any Subsidiary on or after age 55 or greater, so long as Participant has, as of the date of such retirement, at least 10 years of service with the Company or any Subsidiary.
Restricted Stock Units that have vested and are no longer subject to a substantial risk of forfeiture
are referred to herein as “Vested Units.” Restricted Stock Units that are not vested and generally remain subject to forfeiture are referred to herein as “Unvested Units.”
Notwithstanding the above, prior to a Change in Control (i) for administrative or other reasons, the Company may from time to time temporarily suspend the issuance of Shares in respect of earned Vested Units, (ii) the Company shall not be obligated to deliver any Shares during any period when the Company determines that the delivery of Shares hereunder would violate any federal, state or other applicable laws, and (iii) the date on which shares are issued hereunder may include a delay in order to provide the Company such time as it determines appropriate to address tax withholding and other administrative matters. Any delay pursuant to 3(d)(ii) shall only be until such time that the Company determines that the delivery of shares would no longer violate any federal, state or other applicable law. Notwithstanding the delay for administrative or other reasons provided for in clauses (i) and (iii) above, in no event will such issuance of shares be delayed beyond the later of the end of the calendar year or the 15th day of the third month after the month in which the Settlement Date occurs, or such other time as permitted under Section 409A of the Code and the regulations thereunder without the imposition of any additional taxes under Section 409A of the Code.
Notwithstanding any other provision of the Plan or this Agreement, the Plan and this Agreement shall be construed or deemed to be amended as necessary to comply with the
requirements of Section 409A of the Code to avoid the imposition of any additional or accelerated taxes or other penalties under Section 409A of the Code. The Committee, in its sole discretion, shall determine the requirements of Section 409A of the Code applicable to the Plan, and this Agreement and shall interpret the terms of the Plan and this Agreement consistently therewith. Under no circumstances, however, shall the Company have any liability under the Plan or this Agreement for any taxes, penalties or interest due on amounts paid or payable pursuant to the Plan or this Agreement, including any taxes, penalties or interest imposed under Section 409A of the Code.
|4.||Status of Participant|
Participant shall have no rights as a stockholder (including, without limitation, any voting rights with respect to the Shares subject to the Award and, except to the extent the Award is adjusted pursuant to Paragraph 13 hereof and/or Section 13 of the Plan, the right to receive any payments with respect to dividends or other distributions paid with respect to the Shares subject to this Award) with respect to either the Restricted Stock Units granted hereunder or the Shares underlying the Restricted Stock Units, unless and until such Shares are issued in respect of Vested Units, and then only to the extent of such issued Shares.
|5.||Effect of Termination of Employment; Change in Control|
Participant is a “specified employee” (as such term is defined under Section 409A of the Code), any such Shares to be issued to Participant on a Settlement Date that occurs by reason of Participant’s termination of employment with the Company other by reason of Participant’s death or Disability will not be issued to Participant until the date that is six months following the Settlement Date (or such earlier time permitted under Section 409A of the Code without the imposition of any accelerated or additional taxes under Section 409A of the Code).
|6.||Withholding and Disposition of Shares|
|7.||Excess Parachute Payments|
Notwithstanding anything in this Agreement to the contrary, if any of the payments in respect of this Award, together with any other payments to which Participant has the right to receive from the Company or any purchaser, successor, or assign, would constitute an “excess parachute payment” (as defined in Code Section 280G), a best-of-net calculation will be performed to determine whether change in control benefits due to the Participant should be reduced (so no excise tax will be imposed under 280G) or should be paid in full (with any excise tax to be paid in full by the Participant, with any such reduction first applied to payments pursuant to any Deferred Salary Agreement to which Participant is a party, then to payments pursuant to the 2012 Change in Control Plan, if applicable, and then to Awards of Restricted Stock Units under the Plan.
The terms of this Agreement are governed by the terms of the Plan, as it exists on the Grant Date and as the Plan is amended from time to time. In the event of any conflict between the provisions of this Agreement and the provisions of the Plan, the terms of the Plan shall control, except as expressly stated otherwise in this Agreement. The term “Section” generally refers to provisions within the Plan; provided, however, the term “Paragraph” shall refer to a provision of this Agreement.
|9.||Limitation on Rights; No Right to Future Grants; Extraordinary Item|
By entering into this Agreement and accepting the Award, Participant acknowledges that:
(a) Participant’s participation in the Plan is voluntary; (b) the value of the Award is an extraordinary item which is outside the scope of any employment contract with Participant; (c) the Award is not part of normal or expected compensation for any purpose, including without limitation for calculating any benefits, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments, and Participant will not be entitled to compensation or damages as a consequence of Participant’s forfeiture as provided for in the Plan or this Agreement of any unvested portion of the Award for any reason; and (d) in the event that Participant is not a direct employee of Company, the grant of the Award will not be interpreted to form an employment relationship with the Company or any Subsidiary and the grant of the Award will not be interpreted to form an employment contract with Participant’s employer, the Company or any Subsidiary. The Company shall be under no obligation whatsoever to advise Participant of the existence, maturity or termination of any of Participant’s rights hereunder and Participant shall be responsible for familiarizing himself or herself with all matters contained herein and in the Plan which may affect any of Participant’s rights or privileges hereunder.
Any question concerning the interpretation of this Agreement or the Plan, any adjustments required to be made under the Plan, and any controversy that may arise under the Plan or this
Agreement shall be determined by the Committee in its sole and absolute discretion. Such decision by the Committee shall be final and binding.
|12.||Recoupment, Suspension or Termination of Award|
Pursuant to Section 15 of the Plan, if at any time prior to Participant’s receipt of Shares pursuant to the Award an Authorized Officer reasonably believes that Participant may have committed an Act of Misconduct (as defined below), the Authorized Officer, the Committee or the Board may suspend Participant’s rights to vest in any Restricted Stock Units, and/or to receive payment for or receive Shares in settlement of Vested Units pending a determination of whether an Act of Misconduct has been committed. Further, in such event, except as otherwise provided by the Committee, (i) neither Participant nor Participant’s estate nor transferee will be entitled to vest in or have the restrictions on Unvested Units lapse, or otherwise receive payment or Shares in respect of Vested Units and (ii) Participant will forfeit all undelivered Vested and Unvested Units. In making such determination, the Committee or an Authorized Officer shall give Participant an opportunity to appear and present evidence on his or her behalf at a hearing before the Committee or an opportunity to submit written comments, documents, information and arguments to be considered by the Committee. Any dispute by Participant or other person as to the determination of the Committee must be resolved pursuant to Paragraph 14(j).
Further, except as otherwise provided by applicable law and in accordance with the ArcBest Recoupment of Incentive Compensation Policy adopted by the Board of Directors of the Company, Participant agrees that the Company may reduce or offset any payment due to Participant from the Company under this Agreement to recoup the repayment obligation set forth in this Section 12, and by accepting the grant of this Award, Participant consents to such reduction or offset. Such reduction or offset will be applicable to any Award granted, awarded, vested, made or earned during the three full fiscal years immediately prior to the fiscal year in which the Participant is found to have committed an Act of Misconduct.
For purposes of this Agreement, an “Act of Misconduct” means the Participant (i) has committed an act of (a) gross misconduct or fraud in the performance of Participant’s duties to the Company or any Subsidiary, (b) embezzlement, fraud, or dishonesty, (c) material theft or misappropriation of Company or Subsidiary property, (d) nonpayment of any obligation owed to the Company or any Subsidiary, (e) breach of fiduciary duty, (f) violation of Company ethics policy or code of conduct, or (g) deliberate disregard of Company or Subsidiary rules; (ii) is convicted of or enters a guilty plea or plea of nolo contendere with regard to any felony or act of moral turpitude; (iii) makes an unauthorized disclosure of any Company or Subsidiary trade secret or confidential information; (iv) solicits any employee or service provider to leave the employ or cease providing services to the Company or any Subsidiary; (v) breaches any intellectual property or assignment of inventions covenant; (vi) engages in any conduct constituting unfair competition or breaches any noncompetition agreement; (vii) induces any Company or Subsidiary customer to breach a contract with the Company or any Subsidiary or to cease doing business with the Company or any Subsidiary; or (viii) induces any principal for whom the Company or any Subsidiary acts as agent to terminate such agency relationship.
|13.||Adjustment of and Changes in the Stock|
In the event that the number of Shares increases or decreases through a reorganization, reclassification, combination of shares, stock split, reverse stock split, spin-off, dividend (other than regular, quarterly cash dividends), or otherwise, the Committee shall equitably adjust the
number of Shares subject to this Award to reflect such increase or decrease.
Attn: Manager, Compensation and Executive Benefits
P.O. Box 10048
Fort Smith, AR ###-###-####
Fax: (479) 785-6470
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
Judy R. McReynolds
Chairman, President and CEO
[First Name/MI/Last Name]