PUDA COAL, INC. Restricted Stock Unit Grant Agreement
Ex.
10.6
2008
Equity Incentive Plan
This
Restricted Stock Unit Agreement (the “Agreement”) is dated
as of _______ and entered into between Puda Coal, Inc., a Florida corporation
(the “Company”), and [name
of employee] (the “Employee”).
Pursuant
to the terms of the 2008 Equity Incentive Plan (the “Plan”) the Company
hereby awards to the Employee restricted stock units (“Restricted Stock
Units”) on the terms and conditions as set forth in this Agreement and
the Plan. The grant date of this award is ________ (the “Grant
Date”). Capitalized terms used but not defined in this
Agreement shall have the meaning specified in the Plan.
In
consideration of the mutual promises set forth below, the parties hereto agree
as follows:
1. Award of Restricted Stock
Units. Subject to the terms and conditions of this Agreement
and the Plan (the terms of which are incorporated herein by reference) and
effective as of the Grant Date, the Company hereby grants to the
Employee
Restricted Stock Units. The
Restricted Stock Units relate on a one-for-one basis to shares of the Company’s
Common Stock (each such share, adjusted in accordance with Section 14 of the
Plan, a “Share”).
2. Vesting. Restricted
Stock Units vest (meaning that the Employee’s right to the Restricted Stock
Units and the underlying Shares becomes nonforfeitable and no longer subject to
any continuing service obligation) on the one (1) year anniversary of the Grant
Date (the “Vesting
Date”), provided that continuously through the Vesting Date the following
requirements are met: (a) the Employee remains continuously employed by the
Company or a Subsidiary; (b) the Employee does not during the Restricted Period
(as defined below) become an employee of, or doing work outside the Company for,
a past or present competitor of the Company or a Subsidiary. The
period between the Grant Date and the earlier of (a) the Vesting Date, (b) the
date on which the Employee’s services with the Company or a Subsidiary
terminates as a result of his death or disability, including Total and Permanent
Disability (either, the “Termination Date”),
or (c) the date of any accelerated vesting as a result of Section 5 below (such
date, the “Change in Control Date”) is referred to as the “Restricted
Period.”
3. Effect of Termination of
Service or Leave of Absence. If the Employee’s service is
terminated by the Employee or by the Company or a Subsidiary for any reason
except the Employee’s death or disability (including Total and Permanent
Disability) before the Vesting Date, all Restricted Stock Units shall be
forfeited. Upon forfeiture of Restricted Stock Units under this
Agreement, the portion of the award so forfeited shall terminate and the Company
shall have no obligation to issue any Shares in settlement of that portion of
the award. If the Employee dies or becomes disabled (including Total
and Permanent Disability), a pro rata portion of the Employee’s Restricted Stock
Units through the Termination Date (measured as if the award had vested monthly
as to one-twelfth of the Restricted Stock Units commencing one month from the
Grant Date) shall vest immediately upon the Termination Date and the remainder
of the Restricted Stock Units shall be forfeited. If the Employee
returns to service immediately after the end of a leave of absence approved by
the Company, for the purpose of this Agreement only the Employee shall be
considered to have remained continuously employed by the Company through the
period of the leave of absence.
4. Distribution. Subject
to any limitations set forth in this Agreement (including Sections 7 and 8
below) and the Plan, a number of Shares will be issued (“distributed”) to the
Employee in settlement and full satisfaction of the Restricted Stock Units equal
to the number of then-vested Restricted Stock Units on the earlier to occur of
(a) the Vesting Date, (b) thirty (30) days after the Termination Date (but only
with respect to the portion of the award that vests as set forth in Section 3
above) or (c) the Change in Control Date (the earlier of such dates is referred
to as the “Distribution Date”). Stock certificates (including
electronic notations reflecting the same, the “Certificate”) evidencing the
Shares to be issued upon settlement of vested Restricted Stock Units shall be
issued and registered in the Employee’s name and delivered to (or appropriate
notice in the case of electronic Certificate delivered to) the Employee (or in
the case of the Employee’s death, to his beneficiary or estate) as soon as
practicable following the Distribution Date.
5. Change in
Control. In the event of a Change in Control (as defined in
the Plan), the Board or Committee may, in its discretion, (i) provide for
the assumption or substitution of, or adjustment (including to the number and
type of Shares and purchase price applicable) to, each outstanding Award;
(ii) terminate any restrictions on Stock Awards; and/or (iii) provide
for the cancellation of Awards for a cash payment to the Employee. For the
purposes of this Section 14(c), an Award shall be considered assumed, without
limitation, if, at the time of issuance of the stock or other consideration upon
a Change in Control, as the case may be, each holder of an Award would be
entitled to receive upon exercise of the Award the same number and kind of
shares of stock or the same amount of property, cash or securities as such
holder would have been entitled to receive upon the occurrence of the
transaction if the holder had been, immediately prior to such transaction, the
holder of the number of Shares covered by the Award at such time (after giving
effect to any adjustments in the number of Shares covered by the Award as
provided for in Section 14(a)); provided that if such consideration received in
the transaction is not solely common stock of the successor corporation, the
Administrator may, with the consent of the successor corporation provide for the
consideration to be received upon exercise of the Award to be solely common
stock of the successor corporation equal to the Fair Market Value of the per
Share consideration received by holders of Common Stock in the
transaction.
6. Dividends. To
the extent the Company pays any cash dividends, stock dividends or other
distributions on or with respect to Shares during the Restricted Period,
Employees holding Restricted Stock Units shall be entitled to receive credit for
cash dividends, stock dividends and other distributions paid during the
Restricted Period with respect to the corresponding number of Shares underlying
the Restricted Stock Units, provided that the fair market
value of any such dividends or distributions shall be converted into an
additional number of Restricted Stock Units (based on the Fair Market Value of
the Common Stock at the time of such payment or distribution), which additional
Restricted Stock Units shall be subject to the same forfeiture restrictions and
restrictions on transferability as apply to, and shall be settled at the same
time as the Restricted Stock Units with respect to which they
relate. Credit under this paragraph for any dividends paid during the
Restricted Period shall be done as soon as practicable following the payment
date for such dividend.
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7. Tax Withholding
Obligations. In such circumstances in which withholding is
applicable, to meet any such obligations of the Company and Employee that might
arise with respect to any withholding taxes, social security contributions, or
the like under any federal, state, local or PRC statute, ordinance, rule, or
regulation in connection with the award grant, vesting, deferral, or settlement
of the Restricted Stock Units (including without limitation additional
Restricted Stock Unit, if any, provided to the Employee pursuant to Section 6
above), the Committee can, in the circumstances where appropriate, require that
the Company withhold a number of shares of Common Stock otherwise deliverable
having a Fair Market Value sufficient to satisfy the statutory minimum (or such
higher amount as is allowable without adverse accounting consequences) of the
Employee’s estimated total federal, state, local or PRC tax and other social
security contribution obligations associated with award, vesting or settlement
of the Restricted Stock Units. In such circumstances, the Company may
also, in lieu of or in addition to the foregoing, at its sole discretion, either
require the Employee to deposit with the Company an amount of cash sufficient to
meet such requirements and/or withhold the required amounts from the Employee’s
pay during the pay periods next following the date on which any such applicable
tax or social contribution liability otherwise arises. The Company
shall not deliver any of the Certificates until and unless the Employee has made
the deposit required herein or proper provision for required withholding or
contribution has been made. The Employee hereby consents to any action
reasonably taken by the Company to meet all or any of such
obligations.
8. Restriction on
Transferability. Until the Distribution Date, the Restricted
Stock Units may not be sold, transferred, pledged, assigned, or otherwise
alienated at any time. Any attempt to do so contrary to the
provisions hereof shall be null and void. Notwithstanding the above,
distribution can be made pursuant to will, the laws of descent and distribution,
intrafamily transfer instruments or to an inter vivos trust.
9. Rights as
Stockholder. Subject to Section 6 above with respect to
dividends, the Employee shall not have voting or any other rights as a
stockholder of the Company with respect to the Restricted Stock Units prior to
the Distribution Date. Upon the Distribution Date, the Employee will obtain full
voting and other rights as a stockholder of the Company.
10.
Administration. The
Committee shall have the power to interpret the Plan and this Agreement and to
adopt such rules for the administration, interpretation, and application of the
Plan as are consistent therewith and to interpret or revoke any such
rules. All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Employee, the Company,
and all other interested persons. No member of the Committee shall be
personally liable for any action, determination, or interpretation made in good
faith with respect to the Plan or this Agreement.
11. Effect on Other Employee
Benefit Plans. The value of the Restricted Stock Units granted
pursuant to this Agreement shall not be included as compensation, earnings,
salaries, pensionable salary or other similar terms used when calculating the
Employee’s benefits under any employee benefit, pension plan or post-employment
payment or severance arrangement sponsored by the Company or any Subsidiary
except as such plan otherwise expressly provides. The Company
expressly reserves its rights to amend, modify, or terminate any of the
Company’s or any Subsidiary’s employee benefit plans or
arrangements.
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12. No Employee
Rights.
(a) The
award of the Restricted Stock Units pursuant to this Agreement shall not give
the Employee any right to remain employed by the Company or a
Subsidiary. The award is granted completely within the discretion of
the Company. It is not made as a part of any ongoing element of
compensation or something which the Employee should expect to receive annually
or on any other periodic basis. It does not constitute part of the
Employee’s salary or wages and unless specifically agreed to otherwise with the
Company is not relevant for purpose of determining any post-employment payment
or severance.
(b) In
no circumstances shall the Employee on ceasing to hold the office or employment
by virtue of which the Employee is or may be eligible to participate in the Plan
be entitled to any compensation for any loss of any right or benefit or
prospective right or benefit under the Plan or this Agreement which the Employee
might otherwise have enjoyed (including, without limitation, the forfeiture of
Restricted Stock Units) by reason of the Employee’s ceasing to hold an office or
ceasing to be employed by the Company or any Subsidiary whether such
compensation is claimed by way of damages for wrongful dismissal or other breach
of contract or by way of compensation for loss of office or
otherwise. The Employee hereby waives all and any rights to
compensation or damages in consequence of the termination of his office or
employment for any reason whatsoever (including, without prejudice to the
generality of the foregoing, wrongful dismissal or dismissal in breach of
contract) insofar as those rights arise, or may arise, from the Employee’s
ceasing to have rights under this Agreement or forfeiting any Restricted Stock
Units as a result of such termination, or from the loss or diminution in value
of such rights or entitlements.
13. Amendment. This
Agreement may be amended only by a writing executed by the Company and the
Employee which specifically states that it is amending this Agreement.
Notwithstanding the foregoing, this Agreement may be amended solely by the
Committee by a writing which specifically states that it is amending this
Agreement, so long as a copy of such amendment is delivered to the Employee, and
provided that no such amendment adversely affects the rights of the Employee
(but limiting the foregoing, the Committee reserves the right to change, by
written notice to the Employee, the provisions of the Restricted Stock Units or
this Agreement in any way it may deem necessary or advisable to carry out the
purpose of the grant as a result of any change in Applicable Laws or regulations
or any future law, regulation, ruling, or judicial decision, provided that any
such change shall be applicable only to Restricted Stock Units which are then
subject to restrictions as provided herein).
14. Notices. Any
notice to be given under the terms of this Agreement to the Company shall be
addressed to the Company in care of its stock administrator. Any notice to be
given to the Employee shall be addressed to the Employee at the address listed
in the Company’s records. By a notice given pursuant to this Section,
either party may designate a different address for notices. Any
notice shall have been deemed given when actually delivered.
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15. Severability. If
all or any part of this Agreement or the Plan is declared by any court or
governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not invalidate any portion of this Agreement or the Plan not
declared to be unlawful or invalid. Any Section of this Agreement (or
part of such a Section) so declared to be unlawful or invalid shall, if
possible, be construed in a manner which will give effect to the terms of such
Section or part of a Section to the fullest extent possible while remaining
lawful and valid.
16. Construction. The
Restricted Stock Units are being issued pursuant to Section 11 of the Plan
and are subject to the terms of the Plan. A copy of the Plan has been
given to the Employee, and additional copies of the Plan are available upon
request during normal business hours at the principal executive offices of the
Company. To the extent that any provision of this Agreement violates
or is inconsistent with an express provision of the Plan, the Plan provision
shall govern and any inconsistent provision in this Agreement shall be of no
force or effect.
17. Miscellaneous.
(a) Legal
Compliance. This Agreement shall be subject to all Applicable Laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required. The Company shall
have no liability for failure to issue Shares pursuant to this Agreement unless
it is able to do so in compliance with all Applicable Laws.
(b) Successors. All
obligations of the Company under the Plan and this Agreement, with respect to
the Restricted Stock Units, shall be binding on any successor to the Company,
whether the existence of such successor is the result of a direct or indirect
purchase, merger, consolidation, or otherwise, of all or substantially all of
the business and/or assets of the Company.
(c) Data
Processing. By signing this Agreement, the Employee acknowledges that
his or her personal employment or other service information regarding
participation in the Plan and information necessary to determine and pay, if
applicable, benefits under the Plan must be shared with other entities,
including companies related to the Company and persons responsible for certain
acts in the administration of the Plan. By signing this Agreement,
the Employee consents to such transmission of personal data, as the Company
believes is appropriate to administer the Plan.
(d) Governing
Law. To the extent not preempted by federal law of the United States,
this Agreement shall be governed by, and construed in accordance with, the laws
of the State of Florida.
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IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement
effective as of the day and year first above written.
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“Employee”
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“Company”
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By
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Name:
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Title:
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