exhibit109formofencorewi






Active 69831019.2.DOCX  ENCORE WIRE CORPORATION  2020 LONG TERM INCENTIVE PLAN    Time-Based Restricted Stock Unit Award Agreement    This Time-Based Restricted Stock Unit Award Agreement (this “Agreement”) is made by  and between Encore Wire Corporation, a Delaware corporation (the “Company”), and [NAME]  (the “Participant”), effective as of [DATE], 2022 (the “Grant Date”).  RECITALS    WHEREAS, the Company has adopted the Encore Wire Corporation 2020 Long Term  Incentive Plan (as the same may be amended from time to time, the “Plan”), which Plan is  incorporated herein by reference and made a part of this Agreement, and capitalized terms not  otherwise defined in this Agreement shall have the meanings ascribed to those terms in the Plan;  and  WHEREAS, the Committee has authorized and approved the grant of an Award of  Restricted Stock Units to the Participant that will provide the Participant the opportunity to receive  shares of the common stock of the Company (the “Common Stock”) upon the settlement of the  Award on the terms and conditions set forth in the Plan and this Agreement.  NOW THEREFORE, in consideration of the premises and mutual covenants set forth in  this Agreement, the parties agree as follows:  1. Grant of Restricted Stock Unit Award.  The Company hereby grants to the Participant  [NUMBER] Restricted Stock Units, on the terms and conditions set forth in the Plan and  this Agreement, subject to adjustment as set forth in the Plan.    2. Vesting and Forfeiture of Restricted Stock Units.  Subject to the terms and conditions set  forth in the Plan and this Agreement, the Restricted Stock Units shall vest as follows:    (a) General.  Except as otherwise provided in this Section 2, the Restricted Stock Units  shall vest (in whole shares, rounded down) according to the following schedule,  subject to the Participant’s continued employment with the Company or its Affiliate  through each applicable vesting date:  Number of Restricted Stock Units Vesting Vesting Date  1/3 of the Restricted Stock Units First Anniversary of Grant Date  1/3 of the Restricted Stock Units Second Anniversary of Grant Date  Remainder of the Restricted Stock Units Third Anniversary of Grant Date     (b) Change in Control.  All unvested Restricted Stock Units shall fully vest upon a  Change in Control (as defined below), subject to the Participant’s continued  employment with the Company or its Affiliate as of the date of consummation of  





 






2  Active 69831019.2.DOCX  such Change in Control.  For purposes of this Agreement and notwithstanding  Section 2(g) of the Plan, “Change in Control” means the occurrence of any of the  following events after the Grant Date:  (i) a “change in the ownership” of the  Company within the meaning of Treasury Regulation § 1.409A-3(i)(5)(v), whereby  any one person, or more than one person acting as a “group” (as such term is defined  in Treasury Regulation § 1.409A-3(i)(5)(v)(B)), acquires ownership of stock in the  Company that, together with stock held by such person or group, constitutes more  than 50% of the total fair market value or total voting power of the stock of the  Company; (ii) a “change in the effective control” of the Company within the  meaning of Treasury Regulation § 1.409A-3(i)(5)(vi)(A)(2), whereby a majority of  the members of the Board are replaced during any 12-month period by directors  whose appointment or election is not endorsed by a majority of the members of the  Board prior to the date of the appointment or election; or (iii) a “change in the  ownership of a substantial portion” of the Company’s assets within the meaning of  Treasury Regulation § 1.409A-3(i)(5)(vii), whereby any one person, or more than  one person acting as a “group” (as such term is defined in Treasury Regulation §  1.409A-3(i)(5)(vii)(C)), acquires (or has acquired during the 12-month period  ending on the date of the most recent acquisition by such person or persons) assets  of the Company that have a total gross fair market value equal to or more than 75%  of the total gross fair market value of all the assets of the Company immediately  prior to such acquisition or acquisitions.    (c) Retirement.  Upon termination of the Participant’s employment with the Company  and its Affiliates by the Participant after reaching age 60 and completing 10 years  of continuous employment with the Company and its Affiliates (“Retirement”), all  unvested Restricted Stock Units shall fully vest as of the date of such termination  of employment.    (d) Death or Disability.  Upon termination of the Participant’s employment with the  Company and its Affiliates as a result of the Participant’s death or Disability, all  unvested Restricted Stock Units shall fully vest as of the date of such termination  of employment.  “Disability” means the inability of the Participant to engage in any  substantial gainful activity by reason of any medically determinable physical or  mental impairment that can be expected to result in death or that has lasted or can  be expected to last for a continuous period of not less than 12 months as provided  in Sections 22(e)(3) and 409A(a)(2)(c)(i) of the Code, and will be determined by  the Committee on the basis of such medical evidence as the Committee deems  warranted under the circumstances.    (e) Forfeiture.  Any unvested Restricted Stock Units shall be forfeited immediately,  automatically and without consideration upon a termination of the Participant’s  employment with the Company and its Affiliates for any reason other than  Retirement or the Participant’s death or Disability.    (f) Termination for Cause.  Notwithstanding the foregoing provisions of this Section  2, in the event the Participant’s employment with the Company and its Affiliates is  





 






3  Active 69831019.2.DOCX  terminated on account of fraud, dishonesty or the performance of other acts  detrimental to the Company or its Affiliate, as determined by the Committee in its  reasonable, good faith discretion, then all Restricted Stock Units outstanding as of  the date of such termination of employment, whether vested or unvested, shall be  forfeited as of such date.    3. Dividend Equivalents.  The Participant shall be entitled to Dividend Equivalents with  respect to the Restricted Stock Units granted pursuant to this Award.  Each Restricted Stock  Unit subject to this Award is hereby granted in tandem with a corresponding Dividend  Equivalent, which Dividend Equivalent shall remain outstanding from the Grant Date until  the earlier of the settlement or forfeiture of the Restricted Stock Unit to which the Dividend  Equivalent corresponds.  Each Dividend Equivalent entitles the Participant to receive cash  payments, subject to and in accordance with this Agreement, in an amount equal to any  cash dividends paid by the Company in respect of the share of Common Stock underlying  the Restricted Stock Unit to which such Dividend Equivalent relates.  The Company shall  establish, with respect to each Restricted Unit, a separate Dividend Equivalent  bookkeeping account for such Restricted Stock Unit (a “DE Account”), which shall be  credited (without interest) on the applicable dividend payment dates with an amount equal  to any cash dividends paid during the period that such Restricted Unit remains outstanding  with respect to the share of Common Stock underlying the Restricted Stock Unit to which  such Dividend Equivalent relates.  Upon the vesting of a Restricted Stock Unit, the  Dividend Equivalent (and the DE Account) with respect to such vested Restricted Stock  Unit shall also become vested.  Similarly, upon the forfeiture of a Restricted Stock Unit,  the Dividend Equivalent (and the DE Account) with respect to such forfeited Restricted  Stock Unit shall also be forfeited.  Dividend Equivalents shall not entitle the Participant to  any payments relating to cash dividends paid after the earlier to occur of the date that the  applicable Restricted Stock Unit is settled in accordance with Section 4 or the forfeiture of  the Restricted Stock Unit underlying such Dividend Equivalent.  Payments with respect to  vested Dividend Equivalents shall be made in cash as soon as practicable, and not later  than 60 days, after the date that such Dividend Equivalent vests.  The Participant shall not  be entitled to receive any interest with respect to the payment of Dividend Equivalents.    4. Payment.  Promptly following each applicable vesting date or vesting event of the  Restricted Stock Units (but no later than 60 days following such vesting date or event), the  Company shall deliver to the Participant a number of shares of Common Stock equal to the  aggregate number of Restricted Stock Units that vest as of such date or event.  No fractional  shares of Common Stock shall be delivered; the Company shall pay cash in respect of any  fractional shares of Common Stock.  The Company may deliver such shares either through  book entry accounts held by, or in the name of, the Participant or cause to be issued a  certificate or certificates representing the number of shares of Common Stock to be issued  in respect of the Restricted Stock Units, registered in the name of the Participant.    5. Withholding Requirements.  The Company shall be entitled to take any of the following  actions in order to satisfy tax withholding obligations arising on account of amounts  accrued or payable under this Agreement:  (i) deduct from any amount accrued or payable  under this Agreement, including withholding shares of Common Stock, the amount equal  





 






4  Active 69831019.2.DOCX  to the federal, state and local income taxes and other amounts as may be required by law  to be withheld with respect thereto, (ii) require the Participant to pay to the Company such  withholding taxes, or (iii) deduct from any other compensation payable to the Participant  the amount of any withholding obligations with respect to amounts accrued or payable  under this Agreement.  The Committee shall determine in its discretion which of the above  actions shall be taken in order to satisfy tax withholding obligations arising on account of  amounts accrued or payable under this Agreement, including but not limited to withholding  from shares of Common Stock not otherwise issuable at such time by accelerating the  issuance of such shares, as permitted under Treasury Regulation Section 1.409A- 3(j)(4)(vi).    6. Adjustment of Shares of Common Stock.  In the event of any change with respect to the  outstanding shares of Common Stock contemplated by Section 8 of the Plan, the Restricted  Stock Units may be adjusted in accordance with Section 8 of the Plan.    7. Miscellaneous Provisions.    (a) Securities Laws Requirements.  No shares of Common Stock will be issued or  transferred pursuant to this Agreement unless and until all then applicable  requirements imposed by federal and state securities and other laws, rules and  regulations and by any regulatory agencies having jurisdiction, and by any  exchanges upon which the shares of Common Stock may be listed, have been fully  met.  As a condition precedent to the issuance of shares of Common Stock pursuant  to this Agreement, the Company may require the Participant to take any reasonable  action to meet those requirements.  The Committee may impose such conditions on  any shares of Common Stock issuable pursuant to this Agreement as it may deem  advisable, including, without limitation, restrictions under the Securities Act, as  amended, under the requirements of any exchange upon which shares of the same  class are then listed and under any blue sky or other securities laws applicable to  those shares of Common Stock.    (b) Rights of a Shareholder of the Company.  Prior to settlement of the Restricted Stock  Units in shares of Common Stock, the Participant will not have any rights as a  shareholder of the Company with respect to any shares of Common Stock  underlying the Restricted Stock Units.    (c) Transfer Restrictions. The shares of Common Stock delivered hereunder will be  subject to such stop transfer orders and other restrictions as the Committee may  deem advisable under the Plan or the rules, regulations and other requirements of  the Securities and Exchange Commission, any stock exchange upon which such  shares are listed, any applicable federal or state laws and any agreement with, or  policy of, the Company or the Committee to which the Participant is a party or  subject, and the Committee may cause orders or designations to be placed upon the  books and records of the Company’s transfer agent to make appropriate reference  to such restrictions.    





 






5  Active 69831019.2.DOCX  (d) No Right to Continued Employment.  Nothing in this Agreement or the Plan confers  upon the Participant any right to continue in the employment of the Company or its  Affiliates for any period of specific duration or interfere with or otherwise restrict  in any way the rights of the Company (or any Affiliate employing or retaining the  Participant) or of the Participant, which rights are hereby expressly reserved by  each, to terminate his or her employment at any time and for any reason.  (e) Notification.  Any notification required by the terms of this Agreement will be  given by the Participant (i) in writing addressed to the Company at its principal  executive office and will be deemed effective upon actual receipt when delivered  by personal delivery or by registered or certified mail, with postage and fees  prepaid, or (ii) by electronic transmission to the Company’s e-mail address of the  Company’s Chief Financial Officer and will be deemed effective upon actual  receipt.  Any notification required by the terms of this Agreement will be given by  the Company (x) in writing addressed to the address that the Participant most  recently provided to the Company and will be deemed effective upon personal  delivery or within three (3) days of deposit with the United States Postal Service,  by registered or certified mail, with postage and fees prepaid, or (y) by facsimile or  electronic transmission to the Participant’s primary work fax number or e-mail  address (as applicable) and will be deemed effective upon confirmation of receipt  by the sender of such transmission.  (f) Entire Agreement.  This Agreement and the Plan constitute the entire agreement  between the parties hereto with regard to the subject matter of this Agreement.  This  Agreement and the Plan supersede any other agreements, representations or  understandings (whether oral or written and whether express or implied) that relate  to the subject matter of this Agreement.  (g) Waiver.  No waiver of any breach or condition of this Agreement will be deemed  to be a waiver of any other or subsequent breach or condition whether of like or  different nature.  (h) Successors and Assigns.  The provisions of this Agreement will inure to the benefit  of, and be binding upon, the Company and its successors and assigns and upon the  Participant, the Participant’s executor, personal representative(s), distributees,  administrator, permitted transferees, permitted assignees, beneficiaries, and  legatee(s), as applicable, whether or not any such person will have become a party  to this Agreement and have agreed in writing to be joined herein and be bound by  the terms hereof.  (i) Severability.  The provisions of this Agreement are severable, and if any one or  more provisions are determined to be illegal or otherwise unenforceable, in whole  or in part, then the remaining provisions will nevertheless be binding and  enforceable.  (j) Amendment.  Except as otherwise provided in the Plan, this Agreement will not be  amended unless the amendment is agreed to in writing by both the Participant and  the Company.  





 






6  Active 69831019.2.DOCX  (k) Choice of Law; Jurisdiction.  This Agreement and all claims, causes of action or  proceedings (whether in contract, in tort, at law or otherwise) that may be based  upon, arise out of or relate to this Agreement will be governed by the internal laws  of the State of Delaware, excluding any conflicts or choice-of-law rule or principle  that might otherwise refer construction or interpretation of this Agreement to the  substantive law of another jurisdiction.  (l) Clawback.  To the extent required by applicable law or any applicable securities  exchange listing standards, or as otherwise determined by the Board (or a  committee thereof), any shares of Common Stock granted and Dividend  Equivalents paid under this Agreement shall be subject to the provisions of any  applicable clawback policies or procedures adopted by the Company, which  clawback policies or procedures may provide for forfeiture and/or recoupment of  such shares of Common Stock and Dividend Equivalents.  Notwithstanding any  provision of this Agreement to the contrary, the Company reserves the right,  without the Participant’s consent, to adopt any such clawback policies and  procedures, including such policies and procedures applicable to this Agreement  with retroactive effect.  (m) Unfunded Award.  The Award represents an unfunded, unsecured right to receive  shares of Common Stock and the associated Dividend Equivalents in accordance  with the terms of this Agreement, and the Company shall not be required to  segregate any assets with respect to any payments due in connection with this  Agreement.  (n) Code Section 409A.  This Agreement and the Restricted Stock Units and Dividend  Equivalents granted hereunder are intended to comply with Section 409A of the  Code in both form and operation so that the additional taxes imposed by Section  409A of the Code will not apply, and any ambiguities herein shall be interpreted,  to the extent possible, in a manner consistent therewith.  For purposes of Section  409A of the Code, each payment due with respect to the grant of Restricted Stock  Units hereunder shall be considered a separate payment and the Participant’s  entitlement to a series of payments with respect to the grant of Restricted Stock  Units hereunder is to be treated as an entitlement to a series of separate payments.   Any payments to be made under this Agreement as a result of the Participant’s  termination of employment shall only be made if such termination of employment  constitutes a “separation from service” within the meaning of Treasury Regulation  Section 1.409A-1(h) (“Separation from Service”).  Any provision of this  Agreement to the contrary notwithstanding, if the Participant is a “specified  employee” within the meaning of Treasury Regulation Section 1.409A-1(i) as of  the date of his or her Separation from Service, any payment to be made under this  Agreement upon such Separation from Service will not be paid until six months  after the date of the Participant’s Separation from Service (or, if earlier, the date of  the Participant’s death).  In such case, any payment so delayed shall be paid in a  single lump sum on the first business day following the sixth-month anniversary of  the Participant’s Separation from Service (or, if earlier, upon the Participant’s  death).  None of the Company or its Affiliates shall be liable to the Participant for  





 






7  Active 69831019.2.DOCX  any payment made under this Agreement or with respect to any Restricted Stock  Unit, which is determined to result in an additional tax, penalty or interest under  Section 409A of the Code, nor for reporting, in good faith, any payment made under  this Agreement or with respect to any Restricted Stock Unit as an amount includible  in gross income under Section 409A of the Code.  (o) Signature in Counterparts. This Agreement may be signed in counterparts,  manually or electronically, each of which will be an original, with the same effect  as if the signatures to each were upon the same instrument.  (p) Electronic Delivery.  The Company may, in its sole discretion, decide to deliver any  documents related to any Awards granted under the Plan by electronic means or to  request the Participant’s consent to participate in the Plan by electronic means.  The  Participant hereby consents to receive such documents by electronic delivery and  to agree to participate in the Plan through an on-line or electronic system  established and maintained by the Company or another third party designated by  the Company, if applicable.  Such on-line or electronic system shall satisfy  notification requirements discussed in Section 7(e).  (q) Acceptance.  The Participant hereby acknowledges receipt of a copy of the Plan  and this Agreement.  The Participant has read and understands the terms and  provisions of the Plan and this Agreement, and accepts the Restricted Stock Units  subject to all of the terms and conditions of the Plan and this Agreement.  In the  event of a conflict between any term or provision contained in this Agreement and  a term or provision of the Plan, the applicable term and provision of the Plan will  govern and prevail.  [Signature page follows.]  





 






  [Signature Page – Restricted Stock Unit Award Agreement]  Active 69831019.2.DOCX   IN WITNESS WHEREOF, the Company and the Participant have executed this Restricted  Stock Unit Award Agreement as of the dates set forth below.  PARTICIPANT     ENCORE WIRE CORPORATION    Signature:    By:        Print Name:   Name:    Date:   Its:      Date: