EXHIBIT 10
WERNER ENTERPRISES, INC.
SECOND AMENDED AND RESTATED
STOCK OPTION PLAN
1. Purpose. The purpose of the Werner Enterprises, Inc.
(the "Company") Stock Option Plan (the "Plan") is to advance the
interests of the Company and its shareholders by attracting and
retaining those individuals whose skill and initiative enhance
the Company's continued success, growth and profitability. This
Plan is a nonqualified stock option plan, with stock appreciation
rights. This Plan authorizes the grant of nonqualified stock
options and stock appreciation rights in order to help attract
and retain key employees, by providing them with participatory
rights in the future success and growth of the Company, without
necessarily requiring a financial outlay by these employees to
ensure their participation in the Plan benefits.
2. Definitions. The following words shall have the
following meaning:
(a) "Company" shall mean Werner Enterprises, Inc., a
Nebraska corporation.
(b) "Board of Directors" shall mean the Board of
Directors of the Company.
(c) "Committee" shall mean the Option Committee, which
is appointed by the Board of Directors, and which shall be
composed of three or more members of the Board of Directors,
and none of whom, for one year prior to his or her
appointment to the committee, has been granted or awarded
any equity security, including any derivative security such
as an Option or Stock Appreciation Right, of the Company
pursuant to this Plan or any other plan of the Company.
(d) "Common Stock" shall mean the common stock of the
Company, par value $.01 per share.
(e) "Option" shall mean a right to purchase Common
Stock, granted pursuant to the Plan.
(f) "Option Price" shall mean the purchase price for
Common Stock under an Option, as determined in Section 6
below.
(g) "Plan" shall mean this Werner Enterprises, Inc.
Stock Option Plan.
(h) "Participant" shall mean an employee of the
Company (or any of its subsidiaries) to whom an Option is
granted under the Plan.
(i) "Stock Appreciation Right" shall mean a right to
receive cash or stock, granted pursuant to Section 8 below.
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3. Stock To Be Optioned. Subject to the provisions of
Section 13 of the Plan, the maximum number of shares of Common
Stock that may be optioned or sold under the Plan is 8,750,000 (1)
shares. Such shares may be treasury, or authorized but unissued,
shares of Common Stock of the Company.
4. Administration. The Plan shall be administered by the
Committee. Two members of the Committee shall constitute a
quorum for the transaction of business. The Committee is granted
the authority to determine the recipients of the Options and the
Stock Appreciation Rights, the number of shares subject to such
Options and the corresponding Stock Appreciation Rights, the date
on which these Options and Stock Appreciation Rights are to be
granted and are exercisable, whether or not such Options and
Stock Appreciation Rights may be exercisable in installments, and
any other terms of the Options and Stock Appreciation Rights
consistent with the terms of this Plan. Options for no more than
250,000 shares in the aggregate may be granted to one person, and
Options may be granted at any time during the Plan's duration.
The interpretation and construction of any provision of the Plan
by the Committee shall be final, unless otherwise determined by a
majority of the entire Board of Directors. No member of the
Board of Directors or the Committee shall be liable for any
action or determination made by him in good faith.
5. Eligibility. The Committee may grant options to any
management employee (including an employee who is a director
and/or an officer of the Company and its subsidiaries). Options
may be awarded by the Committee at any time and may include or
exclude new or previous Participants as the Committee shall
determine. Options granted at different times need not contain
similar provisions.
6. Option Price. The purchase price of Common Stock under
each Option shall be 100 percent of the fair market value of the
Common Stock on the date the Option is granted, but in no event
less than the par value of the Common Stock. If the Common Stock
is traded in a public trading market, the fair market value will
be the last reported sales price on the date preceding the date
of determination. If there is no active public trading market
for the Common Stock, the fair market value shall be determined
in good faith by the Committee. In addition, the Plan allows, at
the discretion of the Committee, the surrender of an Option and
its subsequent regrant. The regranting of the Option may allow
for lower-priced shares (as then valued) to be granted or for a
lesser number of shares than originally intended to be issued.
However, as with the originally issued option shares, the price
to the Participant may not be less than the fair market value of
the regranted optioned shares, as determined at the time of
regrant.
7. Terms and Conditions of Options. Options granted
pursuant to this Plan shall comply with and be subject to the
following terms and conditions:
(a) Time and Method of Payment. The Option Price
shall be paid in full in cash at the time an Option is
exercised under the Plan. Exercise of an Option without
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(1) This number reflects increases due to stock splits in
September 1992, August 1996, and May 1998 and amendment to the
Plan approved February 8, 2000, which increased the maximum number
of Common Shares that may be optioned or sold by 5,000,000 shares.
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concurrent payment in full in cash shall be invalid and of
no effect. Upon the exercise of an Option and The payment
of the full Option Price, the Participant shall be entitled
to the issuance of a stock certificate evidencing his
ownership of such Common Stock and, as of that date, the
Participant shall have all the rights of a shareholder. No
adjustment will be made for dividends or other rights for
which the record date is prior to the date the Participant
is entitled to the issuance of a stock certificate.
(b) Number of Shares. Each Option shall state the
total number of shares of Common Stock to which it pertains.
The number of shares to which a Participant is entitled
under an Option shall be reduced by the number of Stock
Appreciation Rights (described in Section 8 below) related
to the Option that have been previously exercised by the
Participant.
(c) Option Period and Limitations on Exercise of
Options. The Committee may in its discretion provide that
an Option may become exercisable only after the expiration
of a period of time specified in the Option agreement.
Except as provided in the Option agreement, Options shall
not be exercisable until the expiration of six months from
the date the Option is granted, and any Option may be
exercised in whole or in part. No Option may be exercised
after the expiration of ten years and one day from the date
it is granted. Unless otherwise noted in the Option
agreement, no Option may be exercised for a fractional share
of Common Stock.
8. Terms and Conditions of Stock Appreciation Rights. The
Committee may grant Stock Appreciation Rights at the same time as
Participants are awarded Options under the Plan. Such Stock
Appreciation Rights shall be evidenced by agreements which shall
comply with, and be subject to, the following terms and
conditions:
(a) Grant. Each Stock Appreciation Right shall relate
to a specific Option under the Plan and shall be awarded to
a Participant concurrently with the grant of such Option.
The number of Stock Appreciation Rights granted to a
Participant may be equal to the number of shares that the
Participant is entitled to receive pursuant to the related
Option. The number of Stock Appreciation Rights held by a
Participant shall be the number of Stock Appreciation Rights
granted reduced by:
(1) the number of Stock Appreciation Rights
exercised for Common Stock or cash pursuant to the
Stock Appreciation Rights agreement;
(2) the number of shares of Common Stock
purchased by such Participant pursuant to the related
Option.
(b) Manner of Exercise. A Participant shall exercise
Stock Appreciation Rights by giving written notice of such
exercise to the Company. The date on which such written
notice is received by the Company shall be the exercise date
for the Stock Appreciation Rights.
(c) Appreciation Available. Each Stock Appreciation
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Right shall entitle a Participant to the excess of the fair
market value of a share of Common Stock on the exercise date
over the Option Price of the related Option.
(d) Payment of Appreciation. In the discretion of the
Committee, the appreciation available to a Participant from
an exercise of Stock Appreciation Rights may be paid to the
Participant either in cash or Common Stock. If paid in
cash, the amount thereof shall be the amount of appreciation
available (see (d) above). If paid in Common Stock, the
number of shares that shall be issued pursuant to the
exercise of Stock Appreciation Rights shall be determined by
dividing the amount of appreciation by the fair market value
of a share of Common Stock on the exercise date of the Stock
Appreciation Rights; provided, however, that no fractional
shares shall be issued upon the exercise of Stock
Appreciation Rights.
(e) Limitations Upon Exercise of Stock Appreciation
Rights. If a Participant exercises a Stock Appreciation
Right for cash, the Option to which the Stock Appreciation
Right relates shall expire. Stock Appreciation Rights may
be exercised only at such times and by such persons as may
exercise Options under the Plan. Adjustment to the number
of shares in the Plan and the price per share pursuant to
Section 13 below shall also be made to any Stock
Appreciation Rights held by each Participant.
9. Termination of Employment. A Participant's Options and
Stock Appreciation Rights will immediately terminate and his or
her right to exercise Options and Stock Appreciation Rights will
immediately terminate upon the involuntary termination by the
Company of the Participant's employment with the Company or a
subsidiary of the Company. If a Participant's employment with
the Company or a subsidiary of the Company is voluntarily
terminated by the Participant, the Participant may exercise his
or her Options or Stock Appreciation Rights that are otherwise
exercisable pursuant to this Plan on the date of such termination
for up to and including one hundred and eighty (180) days after
such termination of his or her employment, but in no event shall
any Option or Stock Appreciation Right be exercisable more than
ten years and one day from the date it was granted. The
Committee has the right to cancel an Option or Stock Appreciation
Right during such 180 day period if the Participant engages in
employment or activities contrary, in the opinion of the
Committee, to the best interests of the Company. The Committee
shall also determine in each case whether a termination of
employment (including a termination due to disability) shall be
considered voluntary or involuntary. In addition, the Committee
shall determine, subject to applicable law, whether a leave of
absence or similar circumstance shall constitute a termination of
employment and the date upon which a termination resulting
therefrom became effective. Any such determination of the
Committee shall be final and conclusive, unless overruled by the
entire Board of Directors at its next regular or special meeting.
A Participant's right to exercise Options or Stock Appreciation
Rights after his or her death are governed by Section 10 of this
Plan.
10. Rights in Event of Death. If a Participant dies while
employed by the Company, or within one hundred and eighty (180)
days after having retired or voluntarily terminated his or her
employment, and at the time of death had unexercised Options or
Stock Appreciation Rights, the executors or administrators, or
legatees or heirs, of his estate shall have the right to exercise
such Options and Stock Appreciation Rights within one year of the
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Participant's death to the extent that such deceased Participant
was entitled to exercise the Options and Stock Appreciation
Rights on the date of his death; provided, however, that in no
event shall the Options or Stock Appreciation Rights be
exercisable more than ten years and one day from the date they
were granted. As a condition to any such exercise, the Committee
may require any such executor, administrator, legatee or heir
seeking to exercise such Options or Stock Appreciation Rights to
provide evidence satisfactory to the Committee, in its sole
discretion, of his or her authority to exercise such Options or
Stock Appreciation Rights on behalf of the Participant's estate.
11. No Obligation To Exercise Option of Stock Appreciation
Rights. The granting of an Option or Stock Appreciation Rights
shall impose no obligation upon the Participant to exercise such
Option or Stock Appreciation Rights.
12. Nonassignability. Options and Stock Appreciation
Rights shall not be transferable other than by will or by the
laws of descent and distribution and during a Participant's
lifetime shall be exercisable only by such Participant.
13. Effect of Change in Stock Subject to the Plan. The
aggregate number of shares of Common Stock available for Options
under the Plan, the shares subject to any Option, the price per
share, and the number of related Stock Appreciation Rights shall
all be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock subsequent to the
effective date of the Plan resulting from (1) a subdivision or
consolidation of shares or any other capital adjustment, (2) the
payment of a stock dividend or (3) other increase or decrease in
such shares effected without receipt of consideration by the
Company. If the Company shall be the surviving corporation in
any merger or consolidation, any Option or Stock Appreciation
Rights shall pertain, apply and relate to the securities to which
a holder of the number of shares of Common Stock subject to the
Option would have been entitled after the merger or
consolidation. Upon dissolution or liquidation of the Company,
or upon a merger or consolidation in which the Company is not the
surviving corporation, all outstanding Options and Stock
Appreciation Rights under the Plan shall terminate; provided,
however, that each Participant shall have the right, immediately
prior to such dissolution or liquidation, or such merger or
consolidation, to exercise such Options and Stock Appreciation
Rights in whole or in pan, but only those Options and Stock
Appreciation Rights exercisable on the date of the dissolution,
liquidation, merger or consolidation.
14. Amendment The Board of Directors, by resolution, may
terminate, amend or revise the Plan with respect to any shares as
to which Options have not been granted. Neither the Board of
Directors nor the Committee may, without the consent of the
holder of an Option, alter or impair any Options or Stock
Appreciation Rights previously granted pursuant to the Plan,
except as authorized herein.
15. Agreement and Representation of Employees. As a
condition to the exercise of a portion of any Options or Stock
Appreciation Rights, the Company may require the person
exercising such Options or Stock Appreciation Rights to represent
and warrant at the time of such exercise that any shares of
Common Stock acquired by exercise are being acquired only for
investment and without any present intention to sell or
distribute such shares, if, in the opinion of counsel for the
Company, such a representation is required under the Securities
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Act of 1933 or any other applicable law, regulation or rule of
any governmental agency.
16. Reservation of Shares of Common Stock. The Company,
during the term of the Plan, will at all times reserve and keep
available the number of shares of Common Stock that shall be
sufficient to satisfy the requirements of this Plan. The
inability of the Company to obtain from any regulatory body
having jurisdiction the authority deemed necessary by legal
counsel for the Company for the lawful issuance and sale of its
Common Stock hereunder shall relieve the Company of any liability
in respect of the failure to issue or sell Common Stock as to
which the requisite authority has not been obtained.
17. Effective Date of Plan. The Plan shall be effective as
of June 9, 1987.
18. Termination Date of Plan. This Plan may be terminated
by the Board of Directors, in its sole discretion, and no Options
or Stock Appreciation Rights shall be granted pursuant to this
Plan after such termination. Termination of this Plan shall not
affect any Options or Stock Appreciation Rights granted during
the term of this Plan.
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