Exhibit 4.3


 


GAINSCO, INC.

2005 LONG-TERM INCENTIVE COMPENSATION PLAN


 


RESTRICTED STOCK UNIT INCENTIVE
AGREEMENT


 


This
Restricted Stock Unit Incentive Agreement (the “Agreement”) is entered
into as of «Grant Date» (the “Grant
Date”) by and between GAINSCO, INC., a Texas corporation (the “Company”),
and «Name», an Employee of a GAINSCO
Company (the “Grantee”), pursuant to the GAINSCO, INC. 2005 Long-Term
Incentive Compensation Plan (terms defined in such Plan are used herein with
the same meanings).


 


1.                                      Performance
Restricted Stock Unit Award.  In order to
foster and promote the long-term financial success of the Company and to
increase shareholder value and pursuant to Section 3.1 of the Plan, the
Committee hereby grants to Grantee                               
Restricted Stock Units (the “Units”), each Unit representing the right
to earn one share of Common Stock upon and subject to the satisfaction of all
of the Performance Goals and other conditions, restrictions and limitations set
forth herein and in the Plan.  Grantee
hereby acknowledges and accepts such grant, and agrees to the Performance Goals
and other conditions, restrictions and limitations contained in this Agreement
and the Plan.


 


2.                                      Performance-Based Vesting.


 


(a)                                  Appendix A attached hereto and incorporated
herein by this reference sets forth the Performance Period, the target
performance levels for each Performance Goal in each year of the Performance
Period (“Performance Year”) and the number of Units allocated to each
Performance Goal in each Performance Year.


 


(b)                                 The Units shall vest based on the extent to
which each Performance Goal in each Performance Year set forth in Appendix A is
achieved or exceeded, subject to the following provisions which shall be
determined separately for each Performance Goal identified on Appendix A (in
each case rounded if necessary to the nearest whole number of Units):


 


(i)                                       If for a Performance
Year and Performance Goal, actual results  divided by the applicable target level of
performance for the Performance Goal (the percentage thus derived to be called “Actual
Performance”) is equal to or greater than the threshold level of performance as
shown on the performance scale on Appendix A (“Threshold Performance”) but less
than the superior level of performance shown on the performance scale (“Superior
Performance”) , the percentage of Units allocated to that Performance Year that
vest will be equal to the value on the vesting scale provided on Appendix A
that corresponds to Actual Performance on the performance scale.  The percentage vested will be interpolated
from the corresponding values on the vesting scale provided on Appendix A if
Actual Performance is between specific values on the performance scale.


 


(ii)                                      If for a Performance
Year and Performance Goal, Actual Performance is less than Threshold
Performance as shown in Appendix A, the Grantee will not earn any vested
interest in Units allocated for award in such Performance Year with respect to
the applicable Performance Goal.


 


(iii)                                 If Actual Performance is less than Superior
Performance with respect to any applicable Performance Goal in any
Performance Year, except for the final Performance Year, Grantee will
have the opportunity to earn the unvested Units in future Performance Years (“Carryover
Units”). The number of Units that would have vested if Actual Performance had
equaled Superior Performance, less the actual number of Units vested in the
Performance Year plus any Carryover Units from prior periods, shall be
available for this purpose.


 


The possible vesting of Carryover Units in any Performance
Year for a Performance Goal will be based upon comparing the actual cumulative
vesting-to-date through the Performance Year being measured with the number of
Units that would have vested based on Actual Performance calculated on a
cumulative basis, using the methodologies of paragraph (i) above on a
cumulative basis.  The number of
Carryover Units that will vest will equal the number of Units that would


 





















 


have vested based on such calculations, less the
cumulative number of Units vested (before this calculation) from the first
Performance Year through the Performance Year being measured.  In no case will the Units that vest pursuant
to this paragraph exceed the number of Carryover Units available for the
Performance Goal for the Performance Year being measured nor will the Units be
less than zero.  Unvested Carryover Units
will remain available for vesting in future Performance Years.


 


(iv)                                  If Actual Performance is
greater than Superior Performance, vesting with respect to the Applicable
Performance Goal will equal the maximum vesting amount provided on Appendix A
for that Performance Goal.


 


(c)                                  The Units shall vest as of the end of the
applicable Performance Period in which the applicable Performance Goals are
satisfied, subject to certification by the Committee whether the applicable
Performance Goals have been achieved and the number of Units vested in the
Performance Period.


 


3.                                      Restrictions
on Transfer.  The Units may not be transferred
or assigned other than: (a) by will or the laws of descent and
distribution or (b) pursuant to a qualified domestic relations order (as
defined under Code §414(p)).  Subject to
clauses (a) and (b) of the preceding sentence, no right or benefit
under this Agreement shall be subject to transfer, anticipation, alienation,
sale, assignment, pledge, encumbrance or charge, whether voluntary,
involuntary, by operation of law or otherwise, and any attempt to transfer,
anticipate, alienate, sell, assign, pledge, encumber or charge the same shall
be void.  No right or benefit hereunder
shall in any manner be liable for or subject to any debts, contracts,
liabilities or torts of the person entitled to such benefits.  If Grantee becomes bankrupt or attempts to
transfer, anticipate, alienate, assign, sell, pledge, encumber or charge any
right or benefit hereunder or if any creditor shall attempt to subject the same
to a writ of garnishment, attachment, execution, sequestration or any other
form of process or involuntary lien or seizure, then such right or benefit
shall cease and terminate.


 


4.                                      Effect
of Separation from Service.  If Grantee is
separated from service as an Employee for any reason, whether by action of the
Grantee or the Company with or without cause, or the Disability or death of the
Grantee, then except as otherwise provided in the Plan, (i) any non-vested
portion of the Units shall automatically expire and terminate at such time, (ii) no
further vesting shall occur after such time, and (iii) except as otherwise
provided in a Deferral Election, any vested portion of any Units shall be
settled as soon as administratively feasible, in each case unless the Committee
provides for a modification pursuant to the Plan.


 


5.                                      No
Rights as a Shareholder.  Except as
otherwise provided in the Plan, Grantee shall not have any right, title or
interest in, or any voting rights or Distribution Rights in respect of, or
otherwise be considered the owner of, any of the Shares covered by the Units until
such Units have become vested and the Grantee has become the record owner of
Shares issued in settlement of such Units.


 


6.                                      Securities
Requirements.  The Company shall be under no
obligation to effect the registration pursuant to the Securities Act of 1933 of
any Shares to be issued hereunder or to effect similar compliance under any
state laws.  Notwithstanding anything
herein to the contrary, the Company shall not be obligated to cause to be
issued or delivered any certificates evidencing Shares pursuant to the Plan unless
and until the Company is advised by its counsel that the issuance and delivery
of such certificates is in compliance with all applicable laws, regulations of
governmental authorities, and the requirements of any securities exchange on
which Shares are traded.  The Committee
may require, as a condition of the issuance and delivery of certificates
evidencing Shares pursuant to the terms hereof, that the Grantee make such
covenants, agreements and representations, and that such certificates bear such
legends, as the Committee deems necessary or desirable.


 


The
Committee may defer the effectiveness of any action in respect of any Units in
order to allow the issuance of Shares to be made pursuant to registration or an
exemption from registration or other methods for compliance available under federal
or state securities laws.


 


If
the Shares issuable or deliverable pursuant to any Units are not registered
under the Securities Act of 1933, the Company may imprint on the certificate
for such Shares such legend that the Company considers necessary or advisable
to comply with the Securities Act of 1933 and applicable state securities laws.


 


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7.                                      Change
in Capital Structure.  If while there
are any Units outstanding the Company shall effect any subdivision or
consolidation of Shares, dividend payable in Shares or stock split or reverse
stock split of the Shares, the terms of this Agreement, including the number of
Units subject to this Agreement, shall be adjusted as the Committee deems appropriate
and consistent with the Plan to give effect to such corporate action.


 


8.                                      No
Guarantee of Employment.  Nothing set
forth herein or in the Plan shall (i) confer upon the Grantee any Employment
rights (including right to continued Employment) for any period by any GAINSCO
Company, (ii) entitle the Grantee to remuneration or benefits not set
forth in the Plan, or (iii) interfere with or limit in any way the right
of any GAINSCO Company to terminate such Grantee’s employment at any time
without regard to the existence of this Agreement or the Plan.


 


9.                                      Right
of Recapture.  If at any time after the date on
which any Units become vested or Shares are issued due to the attainment of a
Performance Goal, the Committee determines that the earlier determination as to
the achievement of the Performance Goal was based on false or misleading data
and that the Performance Goal had not been achieved or had been achieved to a
lesser extent than originally determined, then any Units or portion of any Units
that became vested based on such false or misleading data shall be deemed to be
not vested and the Grantee shall be obligated to return to the Company and the
Committee may attempt to recover any transfer of Shares made to the Grantee
with respect to such Units.


 


10.                               Taxes. The Grantee shall pay
to the Company promptly upon request, and in any event at the time the Company
determines that the Grantee has recognized taxable income in respect of the Units,
an amount equal to the taxes the Company determines it is required to withhold
under applicable tax laws with respect to the Units.  Such payment shall be made in the form of
cash, Shares already owned or otherwise issuable upon the lapse of
restrictions, or in a combination of such methods, subject to the terms of the
Plan.


 


11.                               Compliance
with Code Section 409A.  Notwithstanding
any provision in this Agreement to the contrary, this Agreement will be
interpreted, applied and, to the extent necessary, unilaterally amended by the
Committee, so that the Agreement does not fail to meet, and is operated in
accordance with, the requirements of Code Section 409A(a)(2), (3) and
(4).


 


12.                               Incorporation
of Plan; Conflicts.  Grantee acknowledges receipt of a copy of the
Plan, together with the prospectus relating thereto and to the Shares.  Grantee further acknowledges notice of the
terms, conditions, restrictions and limitations contained in the Plan and
acknowledges the restrictions set forth in this Agreement.  This Agreement and the Units shall be subject
to the terms of the Plan, as it may be amended from time to time.  To the extent that any provision of this
Agreement conflicts with the express terms of the Plan, it is hereby
acknowledged and agreed that the terms of the Plan shall control and, if
necessary, the applicable provisions of this Agreement shall be hereby deemed
amended so as to carry out the purpose and intent of the Plan.


 


13.                               Binding
Effect.  This Agreement shall be binding
upon and inure to the benefit of the Grantee and his heirs, executors and personal
representatives, and the Company and its successors and assigns.


 


14.                               Failure
to Enforce Not a Waiver.  The failure of the Committee to enforce at any
time any provision of this Agreement shall in no way be construed to be a
waiver of such provision or of any other provision hereof.


 


15.                               Notices.  Any notice required or permitted under this
Agreement shall be in writing and shall be deemed to be delivered (i) upon
physical delivery (if hand delivered); (ii) three business days after
deposit in the United States mail (if mailed), postage prepaid, certified or
registered mail, return receipt requested, addressed as set forth below or (iii) the
day such notice is sent via facsimile as set forth below:


 


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  The Company:

  	
   

  	
  GAINSCO, INC.

  
	
   

  	
   

  	
  3333 Lee Parkway, Suite 1200

  
	
   

  	
   

  	
  Dallas, Texas 75219

  
	
   

  	
   

  	
  Attn: Corporate Secretary

  
	
   

  	
   

  	
  Fax: (972) 629-4301

  
	
   

  	
   

  	
   

  
	
  Employee:

  	
   

  	
  Notices to Employee shall be given at the most recent address of
  Employee on the Company’s records

  	
   

  



 


Notice
given in any other manner shall be effective when received.  The address for notice may be changed by
notice given in accordance with this provision.


 


16.                               Governing
Law; Venue.  The validity, construction, and
enforcement of this Agreement shall be governed by the laws of the State of
Texas, without regard to any principles of conflict of laws.  Any dispute arising out of or relating to
this Agreement may be brought in a court of competent jurisdiction located in
Dallas, Texas, and both of the parties to this Agreement irrevocably submit to
the exclusive jurisdiction of such courts in any such dispute, waives any
objection it may now or hereafter have to venue or to convenience of forum,
agrees that all claims in respect of the dispute shall be heard and determined
only in any such court, and agrees not to bring any dispute arising out of or
relating to this Agreement in any other court. 
The parties agree that either or both of them may file a copy of this
paragraph with any court as written evidence of the knowing, voluntary and bargained
agreement among the parties irrevocably to waive any objections to venue or to
convenience of forum.  Process in any
dispute may be served on any party anywhere in the world.


 


17.                               Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be an original but
all of which together shall represent one and the same agreement.


 


IN
WITNESS WHEREOF, the
Company has executed this Agreement as of the day and year first above written.


 


	
   

  	
  GAINSCO,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


The
undersigned Grantee hereby accepts, and agrees to, all terms and provisions of
the foregoing Agreement.  If you do not
sign and return this Agreement, you will not be entitled to the Units.


 


 


	
   

  	
   

  	
   

  
	
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