BRIGHAM EXPLORATION COMPANY RESTRICTED STOCK AGREEMENT
XXXXXXX
EXPLORATION COMPANY
1997
INCENTIVE PLAN
THIS
AGREEMENT, made as of the 10th day of October, 2005, by and between XXXXXXX
EXPLORATION COMPANY, a Delaware corporation (the “Company”), and
__________________ (“Employee”);
W
I T N E S S E T H:
WHEREAS,
the Compensation Committee of the Board of Directors of the Company (the
“Committee”), acting under the Company’s 1997 Incentive Plan (the “Plan”), has
determined that it is desirable to award shares of restricted stock to Employee
under the Plan; and
WHEREAS,
pursuant to the Plan, the Committee has determined that the shares of restricted
stock so awarded shall be subject to the restrictions, terms and conditions
of
this Agreement;
NOW,
THEREFORE, in consideration of the premises and mutual covenants and agreements
herein contained, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
1. Plan
Provisions.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings given such terms in the Plan. By execution of this
Agreement, Employee agrees that the Restricted Stock covered hereby shall be
governed by and subject to all applicable provisions of the Plan. This Agreement
is subject to the Plan, and the Plan shall govern where there is any
inconsistency between the Plan and this Agreement.
2. Restricted
Stock.
On the
terms and conditions and subject to the restrictions, including forfeiture,
hereinafter set forth, the Company hereby makes to Employee, and Employee hereby
accepts, the awards of Restricted Stock (each such issuance is herein called
an
“Award”) set forth on Exhibit
A
hereto,
which awards are being issued by the Company pursuant to the Plan. The number
of
shares of Restricted Stock of each Award covered hereby (the “Restricted
Shares”), the date of issuance of such shares (the “Issue Date”), and the
Restricted Period applicable to such shares, including the date on which such
Restricted Period is scheduled to terminate (the “Scheduled Termination Date”),
are set forth on Exhibit
A
attached
hereto. A certificate or certificates representing the Restricted Shares shall
be issued in the name of Employee as of the applicable Issue Date and delivered
to Employee on such Issue Date or as soon thereafter as practicable. Employee
shall cause the certificate(s) representing the Restricted Shares, upon receipt
thereof by Employee, to be deposited, together with stock powers and any other
instrument of transfer reasonably requested by the Company duly endorsed in
blank, with the Company, to be held by the Company in escrow for Employee’s
benefit until such time as any Restricted Shares represented by such
certificate(s) are forfeited to the Company or the restrictions thereon
terminate. Restricted Shares shall be delivered to Employee upon vesting or
assigned and transferred to and reacquired by the Company upon forfeiture,
as
hereinafter set forth.
3. Vesting/Forfeiture.
(a)
Subject
to Sections 3(b), 3(c) and 3(d), with respect to each Award of Restricted Shares
to Employee, the Restricted Shares subject to such Award shall be forfeited
to
the Company at no cost to the Company if Employee’s employment with the Company
or a subsidiary of the Company terminates prior to the termination of the
Restricted Period applicable to such Restricted Shares.
(b)
Upon
Employee’s termination of employment during the Restricted Period due to death
during the Restricted Period, then, the Awards covered hereby that have not
vested shall be deemed to have vested as of the date of the Employee’s death and
the Restricted Period applicable to such shares shall terminate.
(c)
Upon
(i)
Employee’s termination of employment during the Restricted Period due to
Disability (as defined below), or (ii) the involuntary termination of Employee’s
employment with the Company and its subsidiaries by action of the Company (or
its subsidiary, if Employee is employed by a subsidiary of the Company) during
the Restricted Period for reasons other than Just Cause (as defined below)
(each, a “Termination Event”), then, with respect to the Award covered hereby
with the earliest Scheduled Termination Date after such Termination Event,
(A) a
ratable portion of the number of Restricted Shares applicable to such Scheduled
Termination Date (the “Next Vested Shares”) shall be deemed to have vested as of
the date of such Termination Event, determined by multiplying the number of
Next
Vested Shares by a fraction with a numerator equal to the number of full months
which have then elapsed since the last date of termination of a Restricted
Period pursuant to this Agreement (or Issue Date in the event that no shares
had
previously vested) and a denominator equal to the total number of months between
the last date of termination of a Restricted Period pursuant to this Agreement
(or Issue Date in the event that no shares had previously vested) and the next
Scheduled Termination Date under this Agreement, and rounding to the closest
whole number, and (B) the Restricted Period applicable to such ratable portion
of Next Vested Shares shall terminate.
(d)
If
either
(1) Xxx X. Xxxxxxx is no longer both the Chief Executive Officer and Chairman
of
the Board of the Company, or (2) any
“person,” as that term is defined in Section 3(a)(9) of the Securities Exchange
Act of 1934 (the “Exchange Act”) (other than the Company, any of its
subsidiaries, any employee benefit plan of the Company or any of its
subsidiaries, or any entity organized, appointed or established by the Company
for or pursuant to the terms of such a plan), together with all “affiliates” and
“associates” (as such terms are defined in Rule 12b-2 under the Exchange Act) of
such person, or any “Person” or “group” (as those terms are used in Sections
13(d) and 14(d) of the Exchange Act), becomes the “beneficial owner” or
“beneficial owners” (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of securities of the Company representing in
the
aggregate forty-nine percent (49%) or more of either the then outstanding shares
of Common Stock of the Company or the voting power of the Company, in either
such case (each of the events described in (1) and (2) above being referred
to
herein as a "Fundamental Change"), and Recipient’s employment with the Company
is involuntarily terminated within two (2) years of such Fundamental Change,
then immediately upon such termination, the unvested Restricted Shares shall
be
forfeited to the Company at no cost to the Company and Employee shall receive
a
new separate grant of __________________ (___00) shares of fully vested and
unrestricted Company common stock
2
(the
“Additional Grant”). In the event that within two (2) years of a Fundamental
Change Employee’s job responsibilities are substantially reduced, his annual
salary is reduced, or he is required to move his office location more than
30
miles from its existing location, and Employee terminates his employment due
to
such reduction or required move within 15 days of such reduction or the
announcement of the required move, then Employee shall be deemed to have been
involuntarily terminated for purposes of this paragraph, and immediately upon
such termination, the unvested Restricted Shares shall be forfeited to the
Company at no cost to the Company and Employee shall receive the Additional
Grant of _____________ (____00) shares. However, notwithstanding the above,
the
Company’s obligation to issue the Additional Grant shall be contingent upon the
Company having availability under the Plan.
(e)
Unless
and until Restricted Shares are delivered to Employee upon vesting, such
Restricted Shares shall not be sold, assigned, transferred, discounted,
exchanged, pledged, or otherwise encumbered or disposed of by Employee in any
manner. Transfer of employment without interruption of service between or among
the Company and any of its subsidiaries shall not be considered a termination
of
employment.
(f)
With
respect to each Award of Restricted Shares to Employee, upon the termination
of
the Restricted Period applicable to such shares, the restrictions applicable
to
the Restricted Shares that have not theretofore been forfeited shall terminate,
and as soon as practicable thereafter a stock certificate for the number of
Restricted Shares with respect to which the restrictions have terminated,
together with any dividends or other distributions with respect to such shares
then being held by the Company pursuant to the provisions of this Agreement,
shall be delivered, free of all such restrictions, to Employee or Employee’s
beneficiary or estate, as the case may be.
(g)
Notwithstanding
anything contained herein to the contrary, the Committee shall have the right
to
cancel all or any portion of any outstanding restrictions prior to the
termination of such restrictions with respect to any or all of the Restricted
Shares on such terms and conditions as the Committee may, in writing, deem
appropriate.
(h)
For
purposes of this Agreement, the following terms shall have the indicated
meanings:
Disability:
The “Disability” of Employee shall be deemed to have occurred if, in the good
faith judgment of the Committee, Employee shall become unable to continue the
proper performance of Employee’s duties as an employee of the Company or a
subsidiary thereof on a full-time basis as a result of Employee’s physical or
mental incapacity.
Just
Cause: The term “Just Cause” shall mean any of the following: (i) conduct by
Employee that constitutes willful misconduct or gross negligence in the
performance of his duties; (ii) conduct by the Employee that constitutes fraud,
dishonesty, or a criminal act, whether or not with respect to the Company;
(iii)
embezzlement of funds or misappropriation of other property by Employee, (iv)
any act or conduct by Employee that, in the good faith opinion of the Board
of
Directors or the President of the Company, is materially detrimental to the
Company or reflects unfavorably on the Company or the Employee to such an extent
that the Company’s best interests reasonably require the Employee’s
discharge.
3
4. Rights
as Stockholder.
Upon
the issuance of a certificate or certificates representing any Restricted Shares
to Employee, Employee shall become the owner thereof for all purposes and shall
have all rights as a stockholder, including voting rights and the right to
receive dividends and distributions, with respect to such Restricted Shares,
subject to the provisions hereof. If the Company shall pay or declare a dividend
or make a distribution of any kind, whether due to a reorganization,
recapitalization or otherwise, with respect to the shares of Common Stock
constituting Restricted Shares, then the Company shall pay or make such dividend
or other distribution with respect to such Restricted Shares; provided, however,
that the cash, stock or other securities and other property constituting such
dividend or other distribution shall be held by the Company subject to the
restrictions applicable to any Restricted Shares until such Restricted Shares
with respect to which such dividend or other distribution was paid or made
are
either vested or forfeited. If any Restricted Shares with respect to which
such
dividend or distribution was paid or made do not vest but instead are forfeited
pursuant to the provisions hereof, then Employee shall not be entitled to
receive such dividend or distribution with respect to such forfeited shares
and
such dividend or distribution with respect to such forfeited shares shall
likewise be forfeited and automatically transferred to and reacquired by the
Company. If any Restricted Shares with respect to which such dividend or
distribution was paid or made become vested pursuant to the provisions hereof,
then Employee shall be entitled to receive such dividend or distribution with
respect to such vested shares, without interest, and such dividend or
distribution with respect to such vested shares shall likewise be delivered
to
Employee.
5. Withholding
Taxes.
(a)
With
respect to each Award of shares of Restricted Stock to Employee, Employee may
elect, within 30 days of the Issue Date of such shares and on notice to the
Company, to realize income for federal income tax purposes equal to the fair
market value of the shares on the Issue Date. In such event, Employee shall
make
arrangements satisfactory to the Compensation Committee to pay in the year
of
the Award any federal, state, or local taxes required to be withheld with
respect to such shares. If Employee fails to make such payments, then any
provision of this Agreement to the contrary notwithstanding, the Company and
its
subsidiaries shall, to the extent permitted by law, have the right to deduct
from any payments of any kind otherwise due from the Company or its subsidiaries
to or with respect to Employee, whether or not pursuant to this Agreement or
the
Plan and regardless of the form of payment, any federal, state, or local taxes
of any kind required by law to be withheld with respect to such shares.
(b)
(i)
No
later
than the date of the termination of the restrictions on any of the shares of
Restricted Stock covered hereby, Employee will pay to the Company or its
subsidiaries, or make arrangements satisfactory to the Compensation Committee
regarding payment of, any statutory minimum taxes required by law to be withheld
with respect to the shares of Restricted Stock with respect to which such
restrictions have terminated.
(ii) The
Company may elect to allow Employee, to the extent permitted by law, to deliver
to the Company or its subsidiaries shares of Restricted Stock to which Employee
shall be entitled upon the vesting thereof (or other unrestricted shares of
Common Stock owned by Employee), valued at the fair market value of such shares
at the time of such delivery to the Company or its subsidiaries, to satisfy
the
obligation of Employee under Section 5(b)(i) hereof.
4
(iii) Any
provision of this Agreement to the contrary notwithstanding, if Employee does
not otherwise satisfy the obligation of Employee under Section 5(b)(i) hereof,
then the Company and its subsidiaries shall, to the extent permitted by law,
have the right to deduct from any payments of any kind otherwise due from the
Company or its subsidiaries to or with respect to Employee, whether or not
pursuant to this Agreement or the Plan and regardless of the form of payment,
any federal, state, or local taxes of any kind required by law to be withheld
with respect to the shares of Restricted Stock with respect to which the
restrictions on the Restricted Stock have terminated.
6. Legend.
Each
certificate representing shares of Restricted Stock covered hereby shall
conspicuously set forth on the face or back thereof, in addition to any legends
required by applicable law or other agreement, a legend in substantially the
following form:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ASSIGNED AND TRANSFERRED TO
THE
RECORD HOLDER HEREOF PURSUANT TO THE TERMS OF THE XXXXXXX EXPLORATION COMPANY
1997 INCENTIVE PLAN AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, DISCOUNTED,
EXCHANGED, PLEDGED, OR OTHERWISE ENCUMBERED OR DISPOSED OF IN ANY MANNER EXCEPT
AS SET FORTH IN THE TERMS OF THE AGREEMENT EMBODYING THE AWARD OF SUCH SHARES
DATED OCTOBER 10, 2005. A COPY OF SUCH PLAN AND AGREEMENT IS ON FILE IN THE
OFFICES OF THE CORPORATION.
7. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Delaware, without regard to the principles of conflicts
of
laws thereof.
8. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors, and permitted
assigns; provided, however, that Employee shall not assign or otherwise transfer
this Agreement or any of Employee’s rights or obligations
hereunder.
9. Entire
Agreement; Amendment.
This
Agreement, together with the exhibits hereto and any other writings referred
to
herein or delivered pursuant hereto, constitute the entire agreement between
the
parties hereto with respect to the subject matter hereof and supersede all
prior
agreements and understandings, whether written or oral, between the parties
with
respect to the subject matter hereof. To the fullest extent provided by
applicable law, this Agreement may be amended, modified, and supplemented by
mutual consent of the parties hereto at any time, with respect to any of the
terms contained herein, in such manner as may be agreed upon in writing by
such
parties.
10.
Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed given:
(a) If
to the
Company, when delivered by hand or on the third business day after being
deposited in the United States mail (certified mail with postage prepaid)
to:
5
Xxxxxxx
Exploration Company
0000
Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Vice President Administration
(b)
If
to
Employee, when delivered by hand or on the third business day after being
deposited in the United States mail (certified mail with postage prepaid) to
the
address for Employee contained in the Company’s records.
Either
party may at any time give to the other notice in writing of any change of
address of the party giving such notice and from and after the giving of such
notice the address or addresses therein specified will be deemed to be the
address of such party for the purposes of giving notice hereunder.
11.
Counterparts.
This
Agreement may be executed by the parties hereto in any number of counterparts,
each of which shall be deemed an original, but all of which shall constitute
one
and the same agreement. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all, the parties
hereto.
IN
WITNESS WHEREOF, the Company and Employee have executed this Agreement as of
the
date first above written.
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XXXXXXX
EXPLORATION COMPANY
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By:
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Name:
Xxx X. Xxxxxxx
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Title:
President and CEO
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6
EXHIBIT
A
RESTRICTED
STOCK AWARDS
|
Award
|
Number
of
Shares
of Restricted
Stock
|
Issue
Date
|
Duration
of
Restricted
Period
|
Scheduled
Termination
Date
|
||||
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1.
|
____
|
October
10, 2005
|
Commencing
on October 10, 2005 and ending at 12:01 AM on October 10,
2006
|
12:01
AM on October 10, 2006
|
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|
2.
|
____
|
October
10, 2005
|
Commencing
on October 10, 2005 and ending at 12:01 AM on October 10,
2007
|
12:01
AM on October 10, 2007
|
||||
|
3.
|
____
|
October
10, 2005
|
Commencing
on October 10, 2005 and ending at 12:01 AM on October 10,
2008
|
12:01
AM on October 10, 2008
|
||||
|
4.
|
____
|
October
10, 2005
|
Commencing
on October 10, 2005 and ending at 12:01 AM on October 10,
2009
|
12:01
AM on October 10, 2009
|
||||
|
5.
|
____
|
October
10, 2005
|
Commencing
on October 10, 2005 and ending at 12:01 AM on October 10,
2010
|
12:01
AM on October 10, 2010
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7
