GRANTEE: AWARD NO. 2008- DATE OF GRANT: NUMBER OF RSUs:
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GRANTEE:
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| AWARD NO. 2008- |
| DATE OF GRANT: |
| NUMBER OF RSUs: |
AMENDED
AND RESTATED
2008
EQUITY INCENTIVE PLAN
* * *
FORM
OF EXECUTIVE OFFICER
This
RESTRICTED STOCK UNIT AGREEMENT, effective as of ____________, 2008 (the
“Effective Date”), is entered into by and among ZULU ENERGY CORP., a Colorado
corporation (together with its successors and assigns, the “Company”), and
_________ (“Grantee”).
Recitals
A.
The
Company and Grantee entered into an employment agreement, effective as of
_________ (the “Employment Agreement”).
B.
Pursuant
to the Employment Agreement, the Company agreed to credit Grantee with
___________ phantom stock units on the terms set forth in the Employment
Agreement and the Company agreed to adopt a phantom stock plan with respect
to
such units.
C.
The
Company has adopted the Zulu Energy Corp. Amended and Restated 2008 Equity
Incentive Plan (the “Plan”), which provides for Restricted Stock Units (“RSUs”)
as opposed to phantom stock units, and the Company now desires to issue RSUs
under the Plan to Grantee on the terms set forth in this Agreement.
Agreement
NOW,
THEREFORE, intending to be legally bound hereby, the parties agree as
follows:
1. Definitions.
In this
Agreement, terms with initial capitals that are not otherwise defined herein
shall have the meanings provided in the Plan. In addition to the other terms
that are defined herein, the following terms shall have the meanings set forth
below:
(a) “Agreement”
means this Restricted Stock Unit Agreement;
(b) “Common
Stock” means the common stock, $.001 par value per share, of the
Company;
(c) “Disability”
has the meaning ascribed to that term in section 13(e) of the Employment
Agreement; and
(d) “for
cause” has the meaning ascribed to that term in section 13(b)(ii) of the
Employment Agreement.
2. Award
of RSUs.
(a) Pursuant
to the Plan, and subject to the terms and conditions of this Agreement, the
Company hereby grants to Grantee ________ RSUs as of the Effective
Date.
(b) Each
RSU
represents the right to receive one share of Common Stock at the time provided
for in this Agreement.
(c) Each
share of Common Stock issued in settlement of an RSU shall, on the date
delivered to Grantee pursuant to this Agreement, have been properly registered
and qualified for immediate resale by Grantee under federal securities laws
and
all applicable state securities or “blue sky” laws and shall have been listed
for trading on each stock exchange or similar market on which shares of the
Common Stock are traded.
3. Vesting.
The
RSUs granted pursuant to this Agreement shall vest as follows: (i) 40% of the
RSUs (______ RSUs) shall vest on January 1, 2009; (ii) 30% of the RSUs (_______
RSUs) shall vest on January 1, 2010; and (iii) 30% of the RSUs (_______ RSUs)
shall vest on January 1, 2011; provided,
however,
that if
Grantee’s employment with the Company is terminated by Grantee or the Company
for any reason (including as a result of Grantee’s death or Disability) other
than by the Company for cause in accordance with section 13(b)(ii) of the
Employment Agreement, all of the RSUs granted pursuant to this Agreement that
have not vested in accordance with this Section 3 on or prior to the date of
such termination shall immediately become vested as of the date of such
termination; and
provided further
that if
Grantee’s employment with the Company is terminated by the Company for cause in
accordance with section 13(b)(ii) of the Employment Agreement, any RSUs that
have not vested in accordance with this Section 3 on or prior to the date of
such termination shall be forfeited by Grantee as of the date of such
termination.
4. Settlement.
Immediately upon vesting, each RSU shall become payable and shall be settled
in
shares of Common Stock, and a properly executed certificate or certificates
with
respect to which shall be issued by the Company and delivered to Grantee on
the
date of vesting; provided
that if
the Company is unable to deliver shares of Common Stock that have been fully
registered, qualified and listed in accordance with Section 2(c) on such date,
then the Company shall settle such RSUs in cash (based on the Fair Market Value
of the Common Stock on the date of settlement), which shall be paid to Grantee
on the date of vesting.
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5. Dividend
Equivalents.
Grantee
shall be entitled to receive cash payments (referred to as dividend equivalents)
equal to any cash dividends and other distributions paid in cash with respect
to
shares of Common Stock. The amount of each dividend equivalent payment shall
equal the per share amount of the applicable dividend or other distributions
with respect to the Common Stock multiplied
by
the
number of RSUs then outstanding under this Agreement. Each dividend equivalent
payment shall be made to Grantee on same date that the corresponding dividend
or
other distribution is paid with respect to the Common Stock.
6. Adjustments
to RSUs.
Upon
the occurrence of an event described in section 17 of the Plan, then appropriate
adjustment shall in good faith be made to the number and kind of shares
represented by the RSUs granted under this Agreement, in accordance with section
17 of the Plan.
7. Reorganization
and Change of Control.
Upon
the occurrence of a Change in Control, all of the RSUs granted pursuant to
this
Agreement that have not vested in accordance with Section 3 on or prior to
the
date of such Change in Control shall immediately become vested as of the date
of
such Change in Control.
8. Withholding.
Upon
the settlement of RSUs in accordance with this Agreement, the Company shall
withhold from the shares of Common Stock otherwise deliverable to Grantee
pursuant to this Agreement a number of shares of Common Stock having a Fair
Market Value (on the date of settlement) equal to the sum of all withholding
amounts at the highest marginal rates with respect to such settlement under
applicable federal, state, local and other tax laws (collectively, “Withholding
Taxes”) and shall timely remit such amounts to the proper taxing authorities.
Upon the payment of each dividend equivalent pursuant to Section 5, the Company
shall withhold from such amount an amount equal to the Withholding Taxes with
respect to such payment, and shall timely remit such amounts to the proper
taxing authorities.
9. Restrictions
on Transferability.
The
RSUs granted pursuant to this Agreement may not be sold, assigned, transferred,
exchanged, pledged, hypothecated or otherwise encumbered, except by will or
pursuant to the laws of descent and distribution.
10. Notice.
Any
notice required, permitted, or desired to be given pursuant to any of the
provisions of this Agreement shall be deemed to have been sufficiently given
or
served for all purposes when telecopied (if receipt is acknowledged by the
party
to receive such notice), when delivered by hand, or when received by registered
or certified mail, postage prepaid, or by nationally reorganized overnight
courier service, in each case, addressed to the party to receive such notice
at
the following address or any other address substituted therefor by notice
pursuant to these provisions:
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If
to the Company, at:
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000
00xx
Xxxxxx,
Xxxxx 0000
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Xxxxxx,
Xxxxxxxx 00000
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Attention:
Chief Financial Officer
Fax:
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with
a copy to:
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Xxxxxx
Xxxxx LLP
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0000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxx,
XX 00000
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Attention:
Xxxxxx X. Xxxxxxx, Esq.
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Fax:
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| If to the Grantee, at: |
[Insert
name]
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[Address]
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[Fax]
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11. Representations.
Grantee
has received a copy of the Plan and has reviewed with Grantee’s own tax advisors
the federal, state, local and foreign tax consequences of this investment and
the transactions contemplated by this Agreement. Grantee is relying solely
on
such advisors and not on any statements or representations of the Company or
any
of its agents. Grantee understands that Grantee (and not the Company) shall
be
responsible for Grantee’s own tax liability that may arise as a result of the
transactions contemplated by this Agreement.
12. Rights
as Stockholder.
Grantee
shall have none of the rights and privileges of a stockholder with respect
to
outstanding RSUs and shall only have the rights and privileges of a stockholder
to the extent that Grantee is issued shares of Common Stock in settlement of
fully vested RSUs.
13. Subject
to the Plan.
The
RSUs and this Agreement are subject to the terms and conditions of the Plan,
which are incorporated herein by reference.
14. Employment.
Neither
the grant of RSUs pursuant to this Agreement nor any term or provision of this
Agreement shall constitute or be evidence of any understanding, express or
implied, on the part of the Company or any Related Company to employ Grantee
for
any period.
15. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors and permitted assigns of the parties
hereto.
16. Choice
of Law.
This
Agreement shall be governed, construed and administered in accordance with
the
laws of the State of Colorado without giving effect to conflict of laws
principles.
17. Severability.
If any
provision of this Agreement shall be held to be invalid, illegal or
unenforceable in any material respect, such provision shall be replaced with
a
provision that is as close as possible in effect to such invalid, illegal or
unenforceable provision, and still be valid, legal and enforceable, and the
validity, legality and enforceability of the remainder of this Agreement shall
not in any way be affected or impaired thereby.
18. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original by the party executing the same but all of which
together will constitute one and the same instrument.
19. Amendment.
Except
as provided herein, this Agreement may not be amended or otherwise modified
unless evidenced in writing and signed by the Company and Grantee.
Notwithstanding the foregoing, this Agreement may be amended in the sole
discretion of of the Option Committee by a writing that states specifically
that
it is amending this Agreement if a copy of the amendment is delivered to
Grantee; provided,
however,
that no
such amendment may adversely affect the rights of Grantee without Grantee’s
written consent.
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20. Timing
of RSU Settlement Payment.
Notwithstanding any provision of this Agreement to the contrary, if Grantee
is a
Specified Employee (as defined below) on the date that his employment with
the
Company is terminated and, as a result thereof, Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), and the rules promulgated
thereunder would so require, any settlement of RSUs resulting from such
termination of employment shall be made on the first day following the date
that
is six (6) months after the date on which his employment with the Company is
terminated. For purposes of this Agreement, “Specified Employee” shall mean a
key employee (as defined in Section 416(i) of the Code, without regard to
paragraph 5 thereof) of the Company if any stock of the Company (or any entity
with which the Company would be considered a single employer under section
414(b) or 414(c) of the Code) is publicly traded on an established securities
market or otherwise or such other definition as may be set forth in Section
409A
of the Code.
21.
Employment
Agreement Terms.
Grantee
acknowledges and agrees that this Agreement and the grant of the RSUs hereunder
fulfill the obligations of the Company concerning the crediting of phantom
stock
pursuant to section 4(c) of the Employment Agreement.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Company and Grantee have executed this Agreement effective
as of the Effective Date.
| ZULU ENERGY CORP. | ||
| |
|
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| By: | ||
| Name: | ||
| Title: | ||
| GRANTEE | ||
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