EX-4.3



 






Exhibit 4.3




RESTRICTED STOCK AGREEMENT

(For Non-Employee Directors)




     THIS RESTRICTED STOCK AGREEMENT (this “Agreement”) is made as of the ___day of
                     (the “Date of Grant”), between SUPERIOR WELL SERVICES, INC., a Delaware corporation
(the “Company”), and                                          (“Director”).



     1. Award. Pursuant to the SUPERIOR WELL SERVICES, INC. 2005 STOCK INCENTIVE PLAN, as
amended (the “Plan”), as of the Date of Grant, ___shares (the “Restricted Shares”) of the
Company’s common stock, par value $.01 per share, that are held in Treasury shall be issued as
hereinafter provided in Director’s name, subject to certain restrictions thereon in consideration
of Director’s paying to the Company $1.00 per Restricted Share. The Restricted Shares shall be
issued upon acceptance hereof by Director, the payment by Director of the purchase price for the
Restricted Shares, and satisfaction of the conditions of this Agreement. Director acknowledges
receipt of a copy of the Plan and agrees that this award of Restricted Shares shall be subject to
all of the terms and provisions of the Plan, including future amendments thereto, if any, pursuant
to the terms thereof. In the event of any conflict between the terms of this Agreement and the
Plan, the Plan shall control. Capitalized terms used but not defined in this Agreement shall have
the meaning attributed to such terms under the Plan, unless the context requires otherwise.



     2. Restricted Shares. Director hereby accepts the Restricted Shares when issued and
agrees with respect thereto as follows:




        (a) Forfeiture Restrictions. The Restricted Shares may not be sold, assigned,
pledged, exchanged, hypothecated, or otherwise transferred, encumbered, or disposed of to
the extent then subject to the Forfeiture Restrictions (as hereinafter defined), and in the
event of cessation of Director’s service as a member of the Board of Directors of the
Company for any reason other than death, disability (within the meaning of section 22(e)(3)
of the Code), or an “involuntary termination” (as hereinafter defined), Director shall, for
no consideration except as provided in Section 2(c) herein, forfeit to the Company all
Restricted Shares to the extent then subject to the Forfeiture Restrictions. The
prohibition against transfer and the obligation to forfeit and surrender Restricted Shares
to the Company upon termination of services are herein referred to as the “Forfeiture
Restrictions.” The Forfeiture Restrictions shall be binding upon and enforceable against
any transferee of Restricted Shares. For purposes of this Agreement, an “Involuntary
Termination” shall mean any termination of Director’s service as a member of the Board of
Directors of the Company which does not result from a resignation by Director; provided,
however, that the term “Involuntary Termination” shall not include a termination as a result
of death or disability (within the meaning of section 22(e)(3) of the Code) or a termination
for cause. As used in this paragraph, the term “cause” shall mean Director (i) has been
convicted of a misdemeanor involving moral turpitude or of a felony, (ii) has engaged in
gross negligence or willful misconduct in the performance of the duties of Director’s
service, (iii) has willfully disregarded any



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applicable written corporate policies
established by the Company, or (iv) has materially breached any material provision of any
written agreement between Director and the Company or any of its Affiliates.



     (b) Lapse of Forfeiture Restrictions. Provided that Director has continuously
served as a member of the Board of Directors of the Company from the Date of Grant through
the number of years following the Date of Grant as set forth in the following schedule, the
Forfeiture Restrictions shall lapse with respect to a percentage of the aggregate number of
Restricted Shares in accordance with the following schedule:



	 	 	 	 	 
	 	 	Percentage of Total Number
	 	 	Of Restricted Shares as to Which
	Number of Full Years	 	Forfeiture Restrictions Lapse
	Less than 1 year

	 	 	0	%
	1 year

	 	 	15	%
	2 years

	 	 	30	%
	3 years

	 	 	45	%
	4 years

	 	 	60	%
	5 years or more

	 	 	100	%







Notwithstanding the foregoing, the Forfeiture Restrictions shall lapse as to all of the
Restricted Shares then subject to the Forfeiture Restrictions on the date Director’s
membership on the Board of Directors of the Company is terminated by reason of death,
disability (within the meaning of section 22(e)(3) of the Code), or an Involuntary
Termination.




     (c) Termination of Services. If Director’s service relationship with the
Company is terminated for any reason, then that portion, if any, of the Restricted Shares
for which restrictions have not lapsed as of the date of termination shall become null and
void and such shares shall be forfeited to the Company; provided, however, that the portion
of the Restricted Shares, if any, under this Agreement for which restrictions have lapsed as
of the date of such termination shall survive such termination. In such event, Director
will be repaid the lesser of the Fair Market Value of the Restricted Shares on the date of
termination or the amount (without interest) of cash or consideration Director paid to
acquire the Restricted Shares forfeited pursuant to Section 2.




     (d) Certificates. A certificate evidencing the Restricted Shares shall be
issued by the Company in Director’s name, pursuant to which Director shall have all of the
rights of a shareholder of the Company with respect to the Restricted Shares, including,
without limitation, voting rights and the right to receive dividends (provided, however,
that dividends paid in shares of the Company’s stock or other securities shall be



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subject to
the Forfeiture Restrictions and further provided that dividends that are paid other than in shares of the Company’s stock or other securities shall be paid no later than the end of the
calendar year in which the dividend for such class of stock is paid to stockholders of such
class or, if later, the 15th day of the third month following the date the dividend is paid
to stockholders of such class of stock). Director may not sell, transfer, pledge, exchange,
hypothecate, or otherwise dispose of the stock until the Forfeiture Restrictions have
expired and a breach of the terms of this Agreement shall cause a forfeiture of the
Restricted Shares. The certificate shall be delivered upon issuance to the Secretary of the
Company or to such other depository as may be designated by the Committee as a depository
for safekeeping until the forfeiture of such Restricted Shares occurs or the Forfeiture
Restrictions lapse pursuant to the terms of the Plan and this award. On the Date of Grant,
Director shall deliver to the Company a stock power, endorsed in blank, relating to the
Restricted Shares. Upon the lapse of the Forfeiture Restrictions without forfeiture, the
Company shall cause a new certificate or certificates to be issued without legend (except
for any legend required pursuant to applicable securities laws or any other agreement to
which Director is a party) in the name of Director in exchange for the certificate
evidencing the Restricted Shares. However, the Company, in its sole discretion, may elect
to deliver the certificate either in certificate form or electronically to a brokerage
account established for Director’s benefit at a brokerage/financial institution selected by
the Company. Director agrees to complete and sign any documents and take additional action
that the Company may request to enable it to deliver the shares on Director’s behalf.




     (e) Corporate Acts. The existence of the Restricted Shares shall not affect in
any way the right or power of the Board or the shareholders of the Company to make or
authorize any adjustment, recapitalization, reorganization, or other change in the Company’s
capital structure or its business, any merger or consolidation of the Company, any issue of
debt or equity securities, the dissolution or liquidation of the Company or any sale, lease,
exchange, or other disposition of all or any part of its assets or business or any other
corporate act or proceeding. The prohibitions of Section 2(a) hereof shall not apply to
the transfer of Restricted Shares pursuant to a plan of reorganization of the Company,
but the stock, securities, or other property received in exchange therefor shall also become
subject to the Forfeiture Restrictions and provisions governing the lapsing of such
Forfeiture Restrictions applicable to the original Restricted Shares for all purposes of
this Agreement, and the certificates representing such stock, securities or other property
shall be legended to show such restrictions.



       4. Withholding of Tax. To the extent that the receipt of the Restricted Shares or the
lapse of any Forfeiture Restrictions results in compensation income or wages to Director for
federal, state, or local tax purposes, Director shall deliver to the Company at the time of such
receipt or lapse, as the case may be, such amount of money or shares of Stock as the Company may
require to meet its minimum obligation under applicable tax laws or regulations, and if Director
fails to do so, the Company is authorized to withhold from any cash or stock remuneration
(including withholding any Restricted Shares distributable to Director under this Agreement) then
or thereafter payable to Director any tax required to be withheld by reason of



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such resulting
compensation income. Director acknowledges and agrees that the Company is making no representation
or warranty as to the tax consequences to Director as a result of the receipt of the stock, the
lapse of any Forfeiture Restrictions, or the repurchase of any stock pursuant to the Forfeiture
Restrictions.




     5. Lock-Up Provision. Director hereby agrees that in the event of any underwritten
public offering of Common Stock, including an initial public offering of Common Stock, made by the
Company pursuant to an effective registration statement filed under the Securities Act of 1933, as
amended (the “Securities Act”) (whether before or after the lapse of the Forfeiture Restrictions
with respect to any of the Restricted Shares), Director shall not offer, sell, contract to sell,
pledge, hypothecate, grant any option to purchase or make any short sale of, or otherwise dispose
of any shares of Common Stock or any rights to acquire Common Stock for such period of time from
and after the effective date of such registration statement as may be established by the
underwriter(s) for such public offering (the “Lock-Up Period”); provided, however, that such period
of time shall not exceed 180 days from the effective date of the registration statement to be filed
in connection with such public offering; provided further, however, that if (a) during the last 17
days of the initial Lock-Up Period, the Company releases earnings results or material news or a
material event relating to the Company occurs or (b) prior to the expiration of the initial Lock-Up
Period, the Company announces that it will release earnings results during the 16-day period
beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will
be extended until the expiration of the 18-day period beginning on the date of release of the
earnings results or the occurrence of the material news or material event, as applicable, unless
the managing underwriter(s) of such underwritten public offering waive, in writing, such extension.
Furthermore, Director hereby agrees to enter into a lock-up agreement with the underwriter(s) of
any such underwritten public offering if requested by such underwriter(s); provided, however, that
the terms of such lock-up agreement must be substantially the same as those executed by the
Company’s officers and directors and other stockholders in connection with such underwritten public
offering and the period of time covered by such lock-up agreement shall not exceed that set forth
in this Section 5. The limitations contained in this Section 5 shall not apply to any shares
registered in such public offering under the Securities Act. Director shall be subject to this
Section provided and only if the other officers and directors of the Company are also subject to
similar arrangements.



     6. Status of Stock. Director agrees that the Restricted Shares issued under this
Agreement will not be sold or otherwise disposed of in any manner which would constitute a
violation of any applicable federal or state securities laws. Director also agrees that (i) the
certificates representing the Restricted Shares may bear such legend or legends as the Committee
deems appropriate in order to reflect the Forfeiture Restrictions and to assure compliance with
applicable securities laws, (ii) the Company may refuse to register the transfer of the Restricted
Shares on the stock transfer records of the Company if such proposed transfer would constitute a
violation of the Forfeiture Restrictions or, in the opinion of counsel satisfactory to the Company,
of any applicable securities law, and (iii) the Company may give related instructions to its
transfer agent, if any, to stop registration of the transfer of the Restricted Shares.



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     7. Service Relationship. For purposes of this Agreement, Director shall be considered
to be in the service of the Company as long as Director remains a director of either the Company,
an Affiliate, or any successor corporation. Without limiting the scope of the preceding sentence,
it is expressly provided that Director shall be considered to have ceased service with the Company
at the time of the termination of the “Affiliate” status under the Plan of the entity or other
organization for which Director serves as a member of its board of directors. Any question as to
whether and when there has been a termination of such services, and the cause of such termination,
shall be determined by the Committee, and its determination shall be final.



     8. Notices. Any notices or other communications provided for in this Agreement shall
be sufficient if in writing. In the case of Director, such notices or communications shall be
effectively delivered if hand delivered to Director at his principal place of service or if sent by
registered or certified mail to Director at the last address Director has filed with the Company.
In the case of the Company, such notices or communications shall be effectively delivered if sent
by registered or certified mail to the Company at its principal executive offices.



     9. Entire Agreement; Amendment. This Agreement constitutes the entire agreement of
the parties with regard to the subject matter hereof, and contains all the covenants, promises,
representations, warranties, and agreements between the parties with respect to the subject matter
of this Agreement. Without limiting the scope of the preceding sentence, all prior understandings
and agreements, if any, among the parties hereto relating to the subject matter hereof are hereby
null and void and of no further force and effect. Any modification of this Agreement shall be
effective only if it is in writing and signed by both Director and an authorized officer of the
Company.



     10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
any successors to the Company and all persons lawfully claiming under Director.



     11. Controlling Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware.



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     IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by an officer
thereunto duly authorized, and Director has executed this Agreement, all as of the date first above
written.



	 	 	 	 	 	 	 
	 	 	SUPERIOR WELL SERVICES, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[DIRECTOR]
	 
	 	 	 	 	 	 
	 	 	 	 	 





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