Exhibit 10.95
ERSUAA No. __________________
OFFICER'S RESTRICTED STOCK UNIT AWARD AGREEMENT
Name: _________________
Number of Restricted Stock Units: _______________
Grant Date: _______________________
Pursuant to, among other things, Sections 6(e) and 6(h) of US Energy
Systems, Inc.'s 2000 Executive Incentive Compensation Plan (the "2000 Plan"),
you are hereby granted, subject to your execution of this agreement and the
execution of this agreement by US Energy Systems, Inc. ("US Energy"), as of the
Grant Date, the number of restricted stock units ("Restricted Stock Units") set
forth above. Upon the vesting of the Restricted Stock Units as described below
and the expiration of the deferral period provided for herein, each Restricted
Stock Unit will be automatically converted into one share of common stock of US
Energy, par value $.01 per share (the "Common Stock"). Capitalized terms not
otherwise defined herein shall have the meanings ascribed to such term by the
2000 Plan.
1. Vesting of Award. Subject to Section 2, the Restricted Stock Units
shall vest and become non-forfeitable in cumulative annual increments of 25%
commencing on the first anniversary of the Grant Date. (The date on which any
Restricted Stock Unit vests being the "Vesting Date" for such Restricted Stock
Unit and the period beginning on the Grant Date hereof and ending on the day
prior to the Vesting Date for a Restricted Stock Unit is herein referred to as
the "Restriction Period" with respect to such Restricted Stock Unit). In the
event that a fractional number of Restricted Stock Units would vest on any
Vesting Date, the number of units so vesting shall be rounded up to the next
whole number.
2. Termination of Relationship. (a) If during the Restriction Period your
employment with US Energy and all Subsidiaries thereof terminates for Cause (as
defined) or if you voluntarily terminate your employment ("Voluntary
Termination"), any Restricted Stock Units that have not vested as of the date of
termination shall be forfeited. Voluntary Termination does not include your
termination of your employment due to, the assignment to you after the Grant
Date of any duties inconsistent in any material respect of your then position
(including status, offices, titles and reporting relationships, authority,
duties or responsibilities), or any other action by US Energy after the Grant
Date which when taken as a whole results in a significant diminution in your
position, authority, duties or responsibilities.
(b) If during the Restriction Period your employment with US Energy and
all Subsidiaries thereof terminates for any other reason other than Cause or
Voluntary Termination, the Restricted Stock Units will become non-forfeitable
and vest immediately, the Restriction Period will end and the Underlying Shares
(as defined) will be delivered to you as specified in Section 3 hereof.
(c) Upon the occurrence of a Change in Control during or after the
expiration of the Restriction Period, the provisions of Section 9 (a) of the
2000 Plan shall apply. In furtherance of and not by way of limitation of the
foregoing, the restrictions, deferral of settlement, and forfeiture conditions
applicable to the Restricted Stock Units shall lapse and such units shall be
deemed to be fully vested as of the time of the Change in Control, except to the
extent you waive same and subject to the applicable restrictions set forth in
Section 10(a) of the 2000 Plan.
(d) The term "Cause" means your (i) having been convicted of a crime which
constitutes a felony under applicable law or having entered a plea of guilty or
nolo contendere with respect thereto, or (ii) engaging in illegal or fraudulent
conduct with respect to US Energy.
3. Delivery of Shares Underlying Restricted Stock Units. (a) After the
expiration of the deferral period elected pursuant to Section 3(b), US Energy
will deliver to you or your legal representative, a certificate representing the
shares of Common Stock underlying your Restricted Stock Units (the "Underlying
Shares") that have vested pursuant to this agreement.
(b) By signing this agreement, you hereby irrevocably elect to defer
receipt of the Underlying Shares and all other benefits incident thereto to the
extent same have vested as provided above, until the expiration of the deferral
period specified on the signature page hereto or as otherwise provided herein.
(c) Notwithstanding your deferral election, in the event of the earlier to
occur of your death, your Disability, a Change in Control, the termination of
your employment with US Energy and all Subsidiaries or the day immediately
preceding the tenth anniversary of the Grant Date, the deferral effected herein
shall immediately terminate and you shall promptly receive the Underlying Shares
to which you are entitled pursuant to this agreement. You acknowledge that until
the deferral period has terminated, you will not, except as otherwise provided
in Section 3(d) hereof, be entitled to any rights as a stockholder with respect
to the Restricted Stock Units, including without limitation, the right to vote.
(d) Contemporaneously with the grant of Restricted Stock Units to you
pursuant to this agreement, US Energy hereby grants you, pursuant to, among
other things, Section 6(g) of the 2000 Plan, Dividend Equivalent Rights (as
defined). The term "Dividend Equivalent Rights" shall mean your right to
receive, subject to your execution of an agreement in form reasonably acceptable
to US Energy, the number of Restricted Stock Units equal to the quotient
obtained by dividing the aggregate cash dividends that would have been payable
with respect to your Underlying Shares (as if such shares had been issued and
had not been deferred) as of the record date for the payment of such dividends
by the Fair Market Value of a share of Common Stock on such date. The terms and
conditions (including the deferral provided for by Section 3 hereof) of the
Restricted Stock Units granted pursuant to the Dividend Equivalent Rights shall
be the same as otherwise provided herein and shall vest as provided in Section 1
and 2 hereof and as if the Grant Date for determining the Restriction Period
with respect to such units was the Grant Date set forth above. The Restricted
Stock Units, if any, granted pursuant to the Dividend Equivalent Rights shall be
granted only to the extent the applicable dividend payment is actually paid.
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4. Transferability. You may not transfer, pledge, assign, sell or
otherwise alienate your Restricted Stock Units or the Underlying Shares, until
the termination or expiration of the Restriction Period and deferral period with
respect thereto.
5. Taxes. US Energy shall deduct or cause to be deducted from, or collect
or cause to be collected with respect to, your Restricted Stock Units (including
the Underlying Shares) any federal, state, or local taxes required by law to be
withheld or paid with respect to your Restricted Stock Units (including the
Underlying Shares), and you or your legal representative or beneficiaries shall
be required to pay any such amounts. US Energy shall have the right to take such
action as may be necessary, in its reasonable judgment, to satisfy such
obligations.
6. Governing Law. The validity, construction and effect of this Agreement
shall be determined in accordance with the laws of the State of Delaware without
giving effect to choice of law principles.
7. Subject To 2000 Plan. This Agreement and the grant of Restricted Stock
Units and Dividend Equivalent Rights are subject to all of the terms and
conditions of the 2000 Plan.
8. Section 16. Notwithstanding anything to the contrary herein, in the
event that you would be subject to liability for short swing profits pursuant to
Section 16 of the Exchange Act resulting from the distribution to you of the
Underlying Shares, then, except as otherwise provided by the Plan, the
distribution of the Underlying Shares will be deferred and/or limited to the
extent necessary to eliminate such liability.
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Please indicate your acceptance of the foregoing by signing at the place
provided and returning the original of this Agreement.
Very truly yours,
US ENERGY SYSTEMS, INC.
By: ____________________________________
ACCEPTANCE OF RESTRICTED STOCK UNITS AND DEFERRAL ELECTION
I hereby accept these Restricted Stock Units and Dividend Equivalent Rights and
elect to defer my receipt of the Underlying Shares, subject to acceleration as
provided in Section 2(c) herein, as follows (insert your initials in the
appropriate box and then sign your name below):
|_| On the vesting of all* of my Restricted Stock Units subject to this
agreement.
|_| On the first anniversary of the vesting of all* of my Restricted Stock Units
subject to this agreement.
|_| On the second anniversary of the vesting all* of my Restricted Stock Units
subject to this agreement.
|_| On the _____________ anniversary of vesting of all* of my Restricted Stock
Units subject to this agreement (but in no event, on or after the tenth
anniversary of the Grant Date).
*The reference to "all" my Restricted Stock Units shall mean all such units
subject to this agreement, provided, however, if my employment with US Energy
and Subsidiaries terminates for Cause or Voluntary Termination, the term "all"
shall refer to my Restricted Stock Units that vested as of the date of
termination of my employment.
ACCEPTED AND AGREED:
____________________________
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