INTERNATIONAL COAL GROUP, INC.
Exhibit
10.40
2005
EQUITY AND PERFORMANCE INCENTIVE PLAN
NON-EMPLOYEE
DIRECTOR RESTRICTED SHARE UNIT AGREEMENT
THIS
RESTRICTED SHARE UNIT AGREEMENT (this “Agreement”), dated as of _______________,
20___, is entered into between International Coal Group, Inc., a Delaware
corporation (the “Company”), and __________________________
(“Grantee”). Capitalized terms used herein but not defined shall have
the meanings assigned to those terms in the Company’s 2005 Equity and
Performance Incentive Plan, as amended (the “Plan”).
W
I T N E S S E T H:
A. The
Plan provides for grants of Restricted Share Units to Non-Employee Directors of
the Company; and
B. Grantee
is a Non-Employee Director of the Company; and
C. The
execution of this Agreement in the form hereof has been authorized by the
Board.
NOW,
THEREFORE, in consideration of these premises and the covenants and agreements
set forth in this Agreement, the Company and Grantee agree as
follows:
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1.
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Grant of Restricted Share
Units. Subject to and upon the terms, conditions, and
restrictions set forth in this Agreement and in the Plan, the Company
hereby grants to the Grantee __________ Restricted Share Units (the
“Grant”). This Agreement constitutes an “Evidence of Award”
under the Plan.
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2.
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Date of
Grant. The effective date of the grant of the Restricted
Share Units is ________ (the “Date of
Grant”).
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3.
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Restrictions on Transfer of
Restricted Share Units. Other than as provided herein,
neither the Restricted Share Units granted hereby nor any interest therein
shall be transferable other than by will or the laws of descent and
distribution.
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4.
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Vesting of Restricted Share
Units. Subject to Section 5 hereof, the Restricted Share
Units shall be fully vested on the Date of Grant; provided,
however, that the certificates representing the Common
Shares subject to the Grant shall not be delivered to Grantee until the
six-month anniversary of the date on which Grantee ceases to provide
services to the Company as a Non-Employee Director of the
Company.
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5.
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Forfeiture of Restricted Share
Units. Notwithstanding any provisions of this Agreement
to the contrary, if Grantee violates the terms and conditions contained in
Section 9, Grantee will forfeit the Grant (including the vested Restricted
Share Units).
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6.
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Payment of Restricted Share
Unit. The restrictions on transfer on the Restricted
Share Units imposed by Section 3 shall lapse and the shares of Common
Stock underlying the Restricted Share Units shall be transferred to the
Grantee (or to the Grantee’s estate as the case may be), except as
otherwise provided in Section 8, upon the six-month anniversary of
the date on which Grantee ceases to provide services to the Company as a
Non-Employee Director of the Company; provided, however, that if at the
time a payment or settlement would otherwise be due under this Section 6,
the Grantee is a “specified employee” within the meaning of Section 409A
of the Code (determined in accordance with methodology and procedures
adopted by the Company and then in effect) and the payment is considered
deferred compensation within the meaning of Section 409A of the Code, such
payment shall instead be made on the first day after the sixth month
following the month in which the payment was initially due to be
made.
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7.
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Dividend, Voting and Other
Rights. The Grantee shall have no rights of ownership in
the Restricted Share Units and shall have no voting rights with respect to
such Restricted Share Units until the date on which the shares of Common
Stock are transferred to the Grantee pursuant to Section 6
above. From and after the Date of Grant and until the earlier
of (a) the time when the Grantee receives the shares of Common Stock
underlying the Restricted Share Units in accordance with Section 6
hereof or (b) the time when the Grantee’s right to receive the Restricted
Share Units is forfeited in accordance with Section 5 hereof, the
Company shall pay to the Grantee whenever a normal cash dividend is paid
on shares of Common Stock, an amount of cash equal to the product of the
per-share amount of the dividend paid times the number of such Restricted
Share Units. Such payment shall be made within 30 days after
the corresponding dividend payment is made to the stockholders of the
Company.
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8.
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Retention of Common Stock by
the Company. During the period in which the restrictions
on transfer and risk of forfeiture provided in Sections 3, 4 and 5 above
are in effect, the certificates representing the Common Shares covered by
the Grant shall be retained by the Company. To the extent the
issuance of the Common Stock is recorded in a book-entry system,
appropriate notations shall be made to reflect the restrictions on
transfer and risk of forfeiture. At such time as the Restricted
Share Units become payable as specified in Section 4, the Company shall
deliver all certificates representing such payable shares of Common Stock
to the Grantee or remove the restrictions from the book-entry system,
except in the event that the Grantee has notified the Company of his or
her election to satisfy any tax obligations by surrender of a portion of
such Common Shares, the Company will deliver the certificates or adjust
the book-entry representing the remaining balance of Common Shares after
the amount necessary for such taxes has been
deducted.
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9.
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Confidentiality;
Non-Disparagement. Grantee, both during the term hereof
and thereafter, will not, directly or indirectly, use for himself or use
for, or disclose to, any party other than the Company, any secret or
confidential information or data regarding the business of the Company or
any of its Subsidiaries, or any secret or confidential information or data
regarding the business or property of the Company or any of its
Subsidiaries, or regarding any secret or confidential apparatus, process,
system or other method at any time use, developed or investigated by or
for the Company or any of its Subsidiaries, whether or not developed,
acquired, discovered or investigated by Grantee. Upon the date Grantee
ceases to provide services to the Company, or as soon thereafter as
possible, Grantee shall promptly deliver to the Company all memoranda,
notes, records, plats, sketches, plans or other documents made by,
compiled by, delivered to, or otherwise acquired by Grantee concerning the
business or properties of the Company or any of its Subsidiaries, or any
secret or confidential product, apparatus or process used, developed,
acquired or investigated by the Company or any of its
Subsidiaries.
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Grantee
agrees that Grantee will not make any statements, whether oral, written,
telephonic, electronic, or by or in any other method or in any other
format, that in any way disparage, damage, or undermine the character or
reputation of the Company or any of its Subsidiaries, or any member of
management thereof; provided, however, that Grantee may make such
statements as are necessary to comply with law. The Company may
resort to a court of equity to enforce this Section 9 by injunctive
relief. In the event of a breach or threatened breach of this
Section 9 by Grantee, the Company may withhold the Grant (including any
vested Restricted Share Units) under this Agreement pending the outcome of
litigation and/or arbitration regarding such alleged breach of this
Agreement by Grantee. Grantee agrees that the Company may
enforce this Section 9 without posting a bond and without giving notice to
the maximum extent permitted by
law.
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10.
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Compliance with
Law. The Company shall make reasonable efforts to comply
with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Company shall
not be obligated to issue any shares of Common Stock or other securities
pursuant to this Agreement if the issuance thereof would, in the
reasonable opinion of the Company, result in a violation of any such
law. In such case, the Company shall comply with Treasury
Regulation section
1.409A-2(b)(7)(ii).
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11.
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Compliance with Section 409A of
the Code. To the extent applicable, it is intended that
this Agreement and the Plan comply with the provisions of
Section 409A of the Code, so that the income inclusion provisions of
Section 409A(a)(1) do not apply to Grantee. This Agreement
and the Plan shall be administered in a manner consistent with this
intent.
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12.
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Communications. All
notices, demands and other communications required or permitted hereunder
or designated to be given with respect to the rights or interests covered
by this Agreement shall be deemed to have been properly given or delivered
when delivered personally or sent by certified or registered mail, return
receipt requested, U.S. mail or reputable overnight carrier, with full
postage prepaid and addressed to the parties as
follows:
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If
to the Company, at:
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000
Xxxxxxxxx Xxxxxx Xxxxx
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Xxxxx
Xxxxx, XX 00000
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Attention: General
Counsel
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If
to Grantee, at:
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Grantee’s
address provided by Grantee on the last page
hereof
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Either
the Company or Grantee may change the above designated address by written notice
to the other specifying such new address.
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13.
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Interpretation. The
interpretation and construction of this Agreement by the Board shall be
final and conclusive. No member of the Board shall be liable
for any such action or determination made in good
faith.
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14.
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Amendment in
Writing. This Agreement may be amended as provided in
the Plan; provided, however, that all such amendments shall be in
writing.
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15.
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Integration. The
Restricted Share Units are granted pursuant to the
Plan. Notwithstanding anything in this Agreement to the
contrary, this Agreement is subject to all of the terms and conditions of
the Plan. In the event of any inconsistency between
the provisions of this Agreement and the Plan, the Plan shall
govern. A copy of the Plan is available upon request and is
incorporated herein by reference. As such, this Agreement and
the Plan embody the entire agreement and understanding of the Company and
Grantee and supersede any prior understandings or agreements, whether
written or oral, with respect to the Restricted Share
Units. The Board acting pursuant to the Plan, as constituted
from time to time, shall, except as expressly provided otherwise herein,
have the right to determine any questions which arise in connection with
this Grant. Any amendment to the Plan shall be deemed to be an
amendment to this Agreement to the extent that the amendment is applicable
hereto; provided however, that no amendment shall adversely affect the
rights of Grantee under this Agreement without Grantee’s
consent.
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16.
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Severance. In
the event that one or more of the provisions of this Agreement shall be
invalidated for any reason by a court of competent jurisdiction, any
provision so invalidated shall be deemed to be separable from the other
provisions hereof and the remaining provisions hereof shall continue to be
valid and fully enforceable.
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17.
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Successors and
Assigns. The provisions of this Agreement shall inure to
the benefit of, and be binding upon, the successors, administrators,
heirs, legal representatives, and assigns of Grantee, and the successors
and assigns of the Company.
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18.
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Governing
Law. This Agreement is made under, and shall be
construed in accordance with, the laws of the State of
Delaware.
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19.
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Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one and
the same instrument.
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[REST
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, this Agreement is executed by a duly authorized representative
of the Company on the day and year first above written.
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By:
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Name:
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Title:
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The
undersigned Grantee acknowledges receipt of an executed original of this
Agreement and accepts the Restricted Share Units subject to the applicable terms
and conditions of the Plan and the terms and conditions hereinabove set
forth.
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Date:
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Grantee
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GRANTEE: Please
complete/update the following information.
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Name:
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Address:
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