Exhibit 10.8.2
XXXXXXX EXPLORATION COMPANY
1997 INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, made as of the 27th day of October, 2000, by and between
XXXXXXX EXPLORATION COMPANY, a Delaware corporation (the "Company"), and [See
Schedule I attached] ("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) and 3(c), with respect to each Award of
Restricted Shares to Employee, the Restricted Shares subject of 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 (i) Employee's termination of employment during the Restricted
Period due to death or 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.
(c) If as a result of any merger or acquisition transaction involving the
Company or any transaction involving the issuance or redemption of equity
interests in the Company, more than fifty percent (50%) of such equity interests
is owned by parties other than those listed on Exhibit B attached hereto (such
event is referred to herein as a "Fundamental Change"), then immediately before
the consummation of the Fundamental Change, the Restricted Shares shall become
fully vested and all Restricted Periods shall terminate.
(d) 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.
(e) 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
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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.
(f) 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.
(g) 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.
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.
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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 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 such restrictions have terminated.
(ii) Employee shall, to the extent permitted by law, have the right
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.
(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:
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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 27,
2000. 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 Texas, 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:
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.
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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.
XXXXXXX EXPLORATION COMPANY
By: /s/ Xxx X. Xxxxxxx
-------------------------------------
Name: Xxx X. Xxxxxxx
-----------------------------------
Title: President
----------------------------------
/s/ [See Schedule I attached]
----------------------------------------
[See Schedule I attached]
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EXHIBIT A
RESTRICTED STOCK AWARDS
Number of
Shares of Duration of
Restricted Restricted Scheduled
Award Stock Issue Date Period Termination Date
----- ---------- ---------- ----------- ----------------
1. [See Schedule I] October 27, 2000 Commencing on October 27, Midnight on October 26, 2001
2000 and ending at midnight
on October 26, 2001
2. [See Schedule I] October 27, 2000 Commencing on October 27, Midnight on October 26, 2002
2000 and ending at midnight
on October 26, 2002
3. [See Schedule I] October 27, 2000 Commencing on October 27, Midnight on October 26, 2003
2000 and ending at midnight
on October 26, 2003
4. [See Schedule I] October 27, 2000 Commencing on October 27, Midnight on October 26, 2004
2000 and ending at midnight
on October 26, 2004
EXHIBIT B
XXXXXXX EXPLORATION COMPANY, A Delaware corporation
XXXXXXX OIL & GAS, L.P., A Delaware limited partnership
XXXXXXX, INC. (f/k/a Xxxxxxx Exploration Company), a Nevada corporation
GENERAL ATLANTIC PARTNERS III, L.P., a Delaware limited partnership
GAP-XXXXXXX PARTNERS, L.P., a Delaware limited partnership
XXX X. XXXXXXX
XXXX X. XXXXXXX
XXXXXX X. XXXXXX
RIMCO PARTNERS, X.X. XX
RIMCO PARTNERS, L.P. III
RIMCO PARTNERS, X.X. XX
SCHEDULE I
Name of Employee Award 1 Award 2 Award 4 Award 5
---------------- ------- ------- ------- -------
Xxxxx X. Xxxxxxx 15,664 15,663 15,663 15,663
Xxxx Xxxxx Xxxxxxxx 14,873 14,873 14,873 14,872
Xxxxx X. Xxxxx 5,000 5,000 5,000 5,000
