NEWPARK RESOURCES, INC. RESTRICTED STOCK AGREEMENT
Exhibit 4.11
NEWPARK RESOURCES, INC.
1. Grant of Restricted Stock. Subject to the conditions described in this agreement (the
“Award Agreement”) and in the Newpark Resources, Inc. 2006 Equity Incentive Plan (As Amended and
Restated Effective June 10, 2009), as may be amended from time to time (the “Plan”), Newpark
Resources, Inc., a Delaware corporation (the “Company”), hereby grants to
____________________________ (“Participant”) all rights, title and interest in the record and
beneficial ownership of ________________ (______) shares (the “Restricted Stock”) of common stock,
$0.001 par value per share, of the Company (“Common Stock”). This Award of Restricted Stock shall
be effective as of the date (the “Date of Grant”) of approval by the Compensation Committee. The
Date of Grant is ________________ _____, 20___. All capitalized terms not otherwise defined
herein shall have the meanings set forth in the Plan, the terms of which are incorporated herein by
reference.
2. Vesting.
(a) Vesting Schedule. Subject to the satisfaction of the terms and conditions
set forth in the Plan and this Award Agreement, Participant shall vest in his rights under
the Restricted Stock and the Company’s right to the return and reacquisition of such shares
by or upon Participant’s forfeiture shall lapse with respect to the Restricted Stock
according to the following schedule:
(i) ____________ of the Restricted Stock (rounded to the nearest whole number
of shares) shall vest on the[ first anniversary] of the Date of Grant.
(ii) ____________ of the Restricted Stock (rounded to the nearest whole number
of shares) shall vest on the [second anniversary] of the Date of Grant.
(iii) [Additional anniversaries as necessary.]
(iv) The remainder of the Restricted Stock shall vest on the _______
anniversary of the Date of Grant.
The term “Restriction Period” refers to the period, applicable to a given share of
Restricted Stock, from the Date of Grant until that share of Restricted Stock has become
vested and the restrictions thereon have lapsed, whether pursuant to Section 2(a) or Section
2(b) below. References to the end of the Restriction Period or to times following the
Restriction Period shall refer to the time of, or the time following, as the case may be,
the vesting of shares of Restricted Stock and the lapse of the restrictions thereon, and
shall not be construed to refer to the event of or the period following the forfeiture of shares of Restricted Stock
(b) Vesting upon Change in Control. Notwithstanding the foregoing, in the
event of a Change in Control, then immediately prior to the consummation of such Change in
Control, any of the Restricted Stock held by Participant which remain unvested and not
previously forfeited at such time shall immediately become vested. For
purposes of this Award Agreement, “Change of Control” shall have the meaning set forth
in the Plan unless the Participant has entered into a change of control letter agreement
with the Company (a “Change in Control Agreement”), in which event the term shall have the
meaning set forth in the Change in Control Agreement. To the extent there is any conflict
between the definition in the Change in Control Agreement and the definition in the Plan,
the definition in the Change in Control Agreement shall control. Upon the occurrence of a
Change in Control or Potential Change in Control (as defined in the Change in Control
Agreement), the provisions of the Change in Control Agreement pertaining to the acceleration
of vesting of any Awards, including the Award evidenced by this Award Agreement, shall
control.
In the case any item of income under the Award subject to this Award Agreement to which the
definition of “Change in Control” under the Plan or Change in Control Agreement, as
appropriate, would otherwise apply with the effect that the income tax under Section 409A of
the Code would apply or be imposed on income under that Award, but where such tax would not
apply or be imposed if the meaning of the term “Change in Control” met the requirements of
Section 409A(a)(2)(A)(v) of the Code, then the term “Change in Control” herein shall mean,
but only with respect to the income so affected, a transaction, circumstance or event that
constitutes a “Change in Control” under the Plan or Change in Control Agreement, as
appropriate, and that also constitutes a “change in control event” within the meaning of
Treas. Reg. §1.409A-3(i)(5).
3. Issuance and Transferability.
(a) Registration and Restricting Legend. Upon grant, the Restricted Stock
granted hereunder shall be represented by uncertificated shares designated for the
Participant in book-entry registration on the records of the Company’s transfer agent or at
the discretion of the Company, by a stock certificate issued and registered in the
Participant’s name, in each case subject to the restrictions set forth in this Award
Agreement. Any book-entry uncertificated shares or stock certificates evidencing the
Restricted Stock shall be held in custody by the Company until the restrictions thereon have
lapsed, and as a condition of this Award, the Participant shall deliver to the Company a
stock power in substantially the form of Exhibit A attached hereto, endorsed in blank, with
respect to any certificated shares of Restricted Stock.
The book-entry or share certificates evidencing the Restricted Stock which are the subject
of this Award Agreement shall be subject to the following legend:
“The shares represented by this Certificate or book-entry registration have
been issued pursuant to the terms of the Newpark Resources, Inc. 2006 Equity
Incentive Plan (As Amended and Restated Effective June 10, 2009) and may not
be sold, pledged, transferred, assigned or otherwise encumbered in any
manner except as set forth in the terms of the Restricted Stock Agreement
dated __________, 20_.”
In addition, the shares of Restricted Stock shall be subject to such stop-transfer orders
and other restrictive measures as the Company may deem advisable under applicable
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securities laws, or to implement the terms, conditions or restrictions under this Award
Agreement.
Subject to, and following, the vesting of any portion of the shares of Restricted Stock and
the removal of any restrictions thereon in accordance with Section 2 of this Award
Agreement, the Company will cause the book-entry for such portion of the Restricted Stock to
be modified to remove the foregoing legend or, at the Company’s discretion, issue a stock
certificate without such restrictive legend, in each case only with respect to the vested
portion of the shares of Restricted Stock registered on the Company’s books and records in
the name of the Participant. Following the expiration of the Restriction Period, the
Company will cause all restrictions to be removed from the book-entry registrations or, at
the Company’s discretion, issue a stock certificate without such restrictive legend, for any
shares of the Restricted Stock that have vested and with respect to which the restrictions
imposed thereon have lapse, in each case only to the extent such action has not previously
been taken in accordance with the provisions of this paragraph.
(b) Prohibition on Transfer. During the Restriction Period, the Restricted
Stock shall not be transferable. No right or benefit hereunder shall in any manner be
liable for or subject to any debts, contracts, liabilities, or torts of Participant. Any
purported assignment, alienation, pledge, attachment, sale, transfer or other encumbrance of
the Restricted Stock, regardless of by whom initiated or attempted, prior to the lapse of
restrictions shall be void and unenforceable against the Company. If, notwithstanding the
foregoing, an assignment, alienation, pledge, attachment, sale, transfer or other
encumbrance of the Restricted Stock is effected by operation of law, court order or
otherwise, the affected Restricted Stock shall remain subject to the risk of forfeiture,
vesting requirement and all other terms and conditions of this Award Agreement. In the case
of Participant’s death or Disability, Participant’s vested rights under this Award Agreement
(if any) may be exercised and enforced by Participant’s guardian or legal representative.
4. Forfeiture. In the event of the termination of the Participant’s employment during the
Restriction Period by either the Company or by Participant for any reason whatsoever, including,
without limitation, as a result of the Participant’s death or Disability, the unvested portion of
the Restricted Stock held by Participant at that time shall immediately be forfeited; provided,
however, that if the Participant is a party to a Change in Control Agreement and the Participant’s
employment is terminated under circumstances covered by such Change in Control Agreement, the
provisions of the Change in Control Agreement shall control.
5. Ownership Rights/Dividends. Subject to any reservations, conditions or restrictions set
forth in this Award Agreement and/or the Plan, upon grant to Participant of the Restricted Stock,
Participant shall be the holder of record of the Restricted Stock and shall have all of the rights
of a stockholder with respect to such Restricted Stock, including the right to vote such Restricted
Stock and the right to receive dividends and other distributions payable with respect to the
Restricted Stock; provided, however, that during the Restriction Period, any dividends, cash or
stock, that would otherwise be payable or deliverable on any shares of Restricted Stock shall be
deferred and shall not be paid or delivered unless and until such share or shares of Restricted
Stock become fully vested and the restrictions thereon lapse. In the event of the forfeiture of
any shares of the Restricted Stock, the Participant shall have no further rights with respect to
such Restricted Stock and shall forfeit any dividends, whether in cash or stock,
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related to the forfeited shares of Restricted Stock. To the extent the shares of Restricted
Stock shall become fully vested and the restrictions thereon shall lapse, all dividends, whether in
cash or stock, or other distributions payable with respect to the Restricted Stock, if any, shall
be paid or delivered to the Participant without interest within ten (10) days of the date on which
the underlying share or shares of Restricted Stock vest and the restrictions thereon lapse. If and
to the extent vesting of any share or shares of Restricted Stock occurs by reason of a Change in
Control, then notwithstanding the foregoing, the vesting of any accrued dividends on any such
shares of Restricted Stock shall be controlled by and separately determined in accordance with the
last paragraph of Section 2(b) above. Pending the payment or delivery of any such dividends, the
Company’s obligation in respect thereof shall constitute an unfunded, unsecured general obligation
of the Company.
6. Reorganization of the Company. The existence of this Award Agreement shall not affect in
any way the right or power of the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure
or its business; any merger or consolidation of the Company; any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Restricted Stock or the rights
thereof; the dissolution or liquidation of the Company, or any sale or transfer of all or any part
of its assets or business, or any other corporate act or proceeding, whether of a similar character
or otherwise.
7. Changes in Capitalization. In the event that at any time after the Date of Grant the
outstanding shares of Common Stock are changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of a merger, consolidation, spin-off,
recapitalization, reorganization, liquidation, dissolution or other similar corporate change, or
any other increase, decrease or change in the Common Stock without receipt or payment of
consideration by the Company including stock split, stock dividend, combination of shares or the
like, the aggregate number of shares of Restricted Stock which have not vested under this Award
Agreement, subject to any required action by the stockholders of the Company, shall automatically
be proportionately adjusted.
8. Certain Restrictions. By executing this Award Agreement, Participant acknowledges that he
will make or enter into such written representations, warranties and agreements and execute such
documents as the Company may reasonably request in order to comply with the securities law or any
other applicable laws, rules or regulations, or with this Award Agreement or the terms of the Plan.
The Company may from time to time impose such conditions on the transfer of the Restricted Stock
as it deems necessary or advisable to ensure that any transfers of the Restricted Stock will
satisfy the applicable requirements of federal and state securities laws. Such conditions may
include, without limitation, the partial or complete suspension of the right to transfer the
Restricted Stock until the Restricted Stock has been registered under the Securities Act of 1933,
as amended.
9. Amendment and Termination. This Award Agreement may not be terminated by the Board of
Directors or the Compensation Committee at any time without the written consent of Participant. No
amendment or termination of the Plan will adversely affect the rights and privileges of Participant
under the Award Agreement or to the Restricted Stock granted hereunder without the consent of
Participant.
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10. No Guarantee of Employment. Neither this Award Agreement nor the award of Restricted
Stock evidenced hereby shall confer upon Participant any right with respect to continuance of
employment with the Company nor shall it interfere in any way with the right the Company would
otherwise have to terminate such Participant’s employment at any time.
11. Clawback Policy. Notwithstanding any provisions in the Plan or this Award Agreement to
the contrary, this Award Agreement and any shares of Restricted Stock (and dividends accrued
thereon) subject to this Award Agreement including, without limitation, shares of Restricted Stock
that have vested and with respect to which restrictions imposed thereon have lapsed, and any
dividends on such shares that have been paid, shall be subject to potential cancellation,
rescission, clawback and recoupment (i) to the extent necessary to comply with the requirements of
the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010 and any regulations or
listing requirements promulgated thereunder, and/or (ii) as may be required in accordance with the
terms of any clawback/recoupment policy as may be adopted by the Company to comply with the
Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010 and any regulations or listing
requirements promulgated thereunder.
12. Taxes and Withholdings.
(a) Tax Consequences. The granting, vesting and/or sale of all or any portion
of the Restricted Stock may trigger tax liability. Any dividends on Restricted Stock may
also trigger tax liability. Participant agrees that he shall be solely responsible for any
such tax liability. Participant is encouraged to contact his tax advisor to discuss any tax
implications which may arise in connection with the Restricted Stock.
(b) Withholding. Participant acknowledges that the vesting of Restricted Stock
granted pursuant to this Award Agreement, the making of an election under Section 83(b) of
the Code and the vesting and payment of any accrued dividends may result in federal, state
or local tax withholding obligations. Participant understands and acknowledges that the
Company will not deliver shares of Common Stock or make any payment of accrued dividends
until it is satisfied that appropriate arrangements have been made to satisfy any tax
obligation under this Award Agreement or the Plan and agrees to make appropriate
arrangements suitable to the Company for satisfaction of all tax withholding obligations.
Further, Participant hereby agrees and grants to the Company the right to withhold from any
payments or amounts of compensation, payable in cash or otherwise, in order to meet any tax
withholding obligations under this Award Agreement or the Plan. As such, if the Company
requests that Participant take any action required to effect any action described in this
Section 12 and to satisfy the tax withholding obligation pursuant to this Award Agreement
and the Plan, Participant hereby agrees to promptly take any such action.
(c) Section 83(b). Participant shall be permitted, at the Participant’s sole
discretion, to make an election under Section 83(b) of the Code with regard to the
Restricted Stock granted hereunder. Participant understands that any election under Section
83(b) of the Code with regard to the Restricted Stock must be made within thirty (30) days
of the Date of Grant and that, in the event of such election, Participant will so notify the
Company in writing in accordance with the Plan.
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13. No Guarantee of Tax Consequences. The Company, Board of Directors and Compensation
Committee make no commitment or guarantee to Participant that any federal, state or local tax
treatment will apply or be available to any person eligible for benefits under this Award Agreement
and assumes no liability whatsoever for the tax consequences to Participant.
14. Severability. In the event that any provision of this Award Agreement is, becomes or is
deemed to be illegal, invalid, or unenforceable for any reason, or would disqualify the Plan or
this Award Agreement under any law deemed applicable by the Board of Directors or the Compensation
Committee, such provision shall be construed or deemed amended as necessary to conform to the
applicable laws, or if it cannot be construed or deemed amended without, in the determination of
the Board of Directors or the Compensation Committee, materially altering the intent of the Plan or
this Award Agreement, such provision shall be stricken as to such jurisdiction, the Participant or
this Award Agreement, and the remainder of this Award Agreement shall remain in full force and
effect.
15. Terms of the Plan Control. This Award Agreement and the underlying Award are made
pursuant to the Plan. The terms of the Plan, as amended from time to time and interpreted and
applied by the Compensation Committee, shall govern and take precedence in the event of any
conflict with the terms of this Award Agreement. Notwithstanding the foregoing, if the Participant
is a party to a Change in Control Agreement, in the event of any conflict between the terms of this
Award Agreement and the Plan, and the terms and provisions of such Change in Control Agreement, the
terms of the Change in Control Agreement shall control.
16. Governing Law. This Award Agreement shall be construed in accordance with (excluding any
conflict or choice of law provisions of) the laws of the State of Delaware to the extent federal
law does not supersede and preempt Delaware law.
17. Consent to Electric Delivery; Electronic Signature. Except as otherwise prohibited by
law, in lieu of receiving documents in paper format, Participant agrees, to the fullest extent
permitted by law, to accept electronic delivery of any documents that the Company may be required
to deliver (including, but not limited to, prospectuses, prospectuses supplements, grant or award
notifications and agreements, account statements, annual and quarterly reports, and all other forms
of communications) in connection with this and any other Award made or offered by the Company.
Electronic delivery may be via a Company electronic mail system or by reference to a location on a
Company intranet to which Participant has access. Participant hereby consents to any and all
procedures the Company has established or may establish for an electronic signature system for
delivery and acceptance of any such documents that the Company may be required to deliver, and
agrees that his electronic signature is the same as, and shall have the same force and effect as,
his manual signature.
[signature blanks follow]
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Executed: .
| NEWPARK RESOURCES, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted: .
| PARTICIPANT: | ||||||
| Address: | ||||||
| [PARTICIPANT ADDRESS OF] | ||||||
| [RECORD INSERT HERE] | ||||||
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EXHIBIT A
Assignment Separate from Certificate
FOR VALUE RECEIVED, _____________________ hereby sells, assigns and transfers unto Newpark
Resources, Inc. a Delaware corporation (the “Company”), _____________ (_____________) shares of
common stock of the Company represented by Certificate No. ________ and does hereby irrevocably
constitute and appoint _____________________, or his designee or successor, as attorney to transfer
the said stock on the books of the Company with full power of substitution in the premises.
Dated: _________________, 20__.
INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE. THE PURPOSE OF THIS
ASSIGNMENT IS TO ENABLE THE COMPANY TO EXERCISE ITS “REPURCHASE OPTION” SET FORTH IN THE AWARD
AGREEMENT WITHOUT REQUIRING ADDITIONAL SIGNATURES ON THE PART OF THE PARTICIPANT.
