XCL LTD.
RESTRICTED STOCK AWARD AGREEMENT
XCL LTD., a Delaware corporation (the "Company" or "XCL"),
effective as of the []st of [], 199[], hereby grants to []
("Grantee"), in consideration of services rendered and to be
rendered by the Grantee (the "Award"), [] shares of the Company's
fully-paid and non-assessable common stock, par value $.01 per
share (the "Shares") pursuant to the Company's Long-Term Stock
Incentive Plan, as amended and restated effective as of [], 199[]
(the "Plan"), with such Award to be evidenced by a certificate or
certificates for all Shares registered in the name of the Grantee
which shall be promptly drawn and held for the Grantee by the
Company, subject however to the following terms and conditions:
1. Forfeiture Restrictions. The Shares may not be sold,
assigned, pledged, exchanged, hypothecated or otherwise
transferred, encumbered or disposed of to the extent then subject
to the Forfeiture Restrictions (as hereinafter defined). The
prohibition against transfer and the obligation to forfeit and
surrender Shares to the Company upon termination of employment
are herein referred to as the "Forfeiture Restrictions." The
Forfeiture Restrictions shall be binding upon and enforceable
against any transferee of Shares.
2. Release of Restrictions.
(a) Subject to (b) below, and provided the Grantee
has been continuously employed by the Company from the date of
this Award through the Lapse Date specified in the table below
("Lapse Table"), the Forfeiture Restrictions shall be released as
to the number of Shares on the applicable Lapse Date, but only if
the "Fair Market Value" or "FMV" (as hereinafter defined) of the
Company's common stock, without any allowance for any dividends
of any kind paid by the Company on such common stock, has reached
the required FMV on such Lapse Date:
Lapse Date Number of Shares FMV of Common Stock
[] The first [] $[]
[] An additional [] []
[] An additional [] []
"FMV" of the Company's common stock shall mean the last
sales price, regular way, per share of the common stock on such
day as reported in the principal consolidated reporting system
with respect to the common stock listed on the principal United
States securities exchange on which the common stock is listed or
admitted to trading, or if the common stock is not then listed on
any United States stock exchange, the last sales price reported
on each such day in the National Market System of the National
Association of Securities Dealers' Automated Quotation System
("NASDAQ"), or, if not so reported, the average of the bid and
asked prices on each such day as reported in the "pink sheets"
published by the National Quotation Bureau, Inc. or any successor
thereof, or, if not so reported, the average of the middle market
quotations on each such day as reported on The Stock Exchange
Daily Official List or, if applicable, the closing price on any
stock exchange on which the common stock is traded or, if not so
traded, the FMV shall be determined in good faith by the Board.
If the required FMV of the Company's common stock on
the pertinent Lapse Date is not equal to the FMV specified in the
Lapse Table above for such Lapse Date, the Forfeiture
Restrictions as to such Shares shall not lapse, and such Shares
shall become "Suspended Shares" as of such Lapse Date. The
Forfeiture Restrictions with respect to Suspended Shares shall
lapse, if on any subsequent Lapse Date, the FMV of the Company's
common stock is equal to, or greater than, the required FMV
referenced in the Lapse Table for such Lapse Date.
(b) Paragraph (a) above to the contrary
notwithstanding, the Forfeiture Restrictions on all Shares to the
extent then still applicable shall lapse in full on [], 200[], if
Grantee is employed by the Company on such date. Paragraph (a)
above further to the contrary notwithstanding, the Forfeiture
Restrictions on all Shares to the extent then still applicable
shall lapse in full if Grantee's employment with the Company is
terminated for any reason other than termination of such
employment by the Company for "cause" or termination of such
employment by Grantee without "good reason." For purposes of
this Agreement, the term "cause" shall mean the termination of
Grantee's employment with the Company due to the Grantee's
(i) engagement in gross negligence or willful misconduct in the
performance of his duties with respect to the Company or any of
its affiliates, (ii) conviction of a felony or misdemeanor, (iii)
refusal without proper legal reason to perform his duties and
responsibilities to the Company or any of its affiliates or (iv)
breach of any provision of a written employment agreement between
Grantee and the Company; provided, however, that if Grantee's
employment with the Company is subject to and governed by the
terms of a written employment contract as of the date of
Grantee's termination of employment, the term "cause" for
purposes of this Agreement shall include only those events or
circumstances which, pursuant to the terms of such employment
agreement, enable the Company to terminate Grantee's employment
without liability to Grantee (whether in the nature of breach of
contract damages, liquidated damages, punitive damages,
compensatory damages or otherwise). For purposes of this
Agreement, the term "good reason" shall mean (i) the removal of
Grantee as Vice Chairman of the Company, (ii) a reduction in
Grantee's annual base salary by more than 10% unless such
reduction was pursuant to a Company-wide cost reduction program
pursuant to which all Company employees were treated
substantially equally, (iii) a breach by the Company of any
obligation owed to Grantee under any written agreement between
Grantee and the Company with respect to Grantee's employment
with, or benefits from, the Company or any of its affiliates, or
(iv) death or total disability of Grantee.
(c) Notwithstanding any provision in this Agreement
or the Plan to the contrary, the Forfeiture Restrictions as to
all Shares shall lapse and cease to be applicable upon the
occurrence of an event which constitutes a change of control of
XCL. For purposes of this Paragraph (c), a "change in control of
XCL" shall mean a change in control of a nature that would be
required to be reported in response to Item 5(f) of Schedule 14A
of Regulation 14A promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"); provided that, without
limitation, such a change in control shall be deemed to have
occurred if (Y) any "person" (as such term is used in Section
13(d) and 14(d) of the Exchange Act), other than XCL or any
person who on the date the Plan is amended is a director or
officer of XCL is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of XCL representing 20% or more of the combined voting
power of XCL's then outstanding securities, unless such person
owns, directly or indirectly, as of the date the Plan is amended,
more than 25% of the combined voting power of XCL's then
outstanding securities, in which case, if any such person (a
"Major Stockholder") becomes the beneficial owner, directly or
indirectly, of 33a% or more of the combined voting power of XCL's
then outstanding securities; provided, further, however, that
acquisition of 33a% or more of such combined voting power shall
not constitute a "change in control of XCL" if (1) such combined
voting power does not exceed 372% or more of the combined voting
power of XCL's then outstanding securities, and (2) either (i) to
the extent any such increase in a Major Stockholder's beneficial
ownership results from a redemption or purchase by XCL of its
securities, or (ii) if the Board of Directors of XCL, by vote of
two-thirds (b) of the full Board, in good faith, determines
(hereinafter referred to as a "Determination") both (A) that such
acquisition does not constitute, in fact, a change in the control
of XCL and (B) that such Major Stockholder does not and cannot
then control XCL or (Z) during any period of two consecutive
years prior to the date of such Determination, individuals who at
the beginning of such period constituted the Board of Directors
cease for any reason to constitute at least a majority thereof,
unless the election of each director who was not a director at
the beginning of such period has been approved in advance by
directors representing at least two-thirds of the directors then
in office who were directors at the beginning of the period.
Further notwithstanding any provision in this Agreement or the
Plan to the contrary, upon the occurrence of a "change in control
of XCL" and the lapse of the Forfeiture Restrictions on the
Shares resulting therefrom, Grantee shall have the right at any
time during the sixty-day period immediately following such
"change in control of XCL" to require the Company to purchase
from Grantee at their then Fair Market Value up to 40% (as
elected by Grantee) of the Shares as to which the Forfeiture
Restrictions lapsed as a result of such "change in control of
XCL". Grantee shall exercise the put option provided pursuant to
the preceding sentence by written notice to the Company
specifying the number of Shares which Grantee demands that the
Company purchase. The purchase price for Shares purchased by the
Company from Grantee pursuant to the put option provided
hereunder shall be paid in cash and in full no later than thirty
days after the date of Grantee's notice to Company of Grantee's
exercise of the put option provided herein and tender of the
Shares as to which such put option is being exercised.
3. Adjustments on Recapitalization. The number of
Shares subject hereto shall be proportionately adjusted for any
increase or decrease in the number of issued Shares resulting
from the subdivision or consolidation of Shares, or the payment
of a stock dividend on the Shares or increase in the Shares
outstanding effected without receipt of consideration by the
Company, provided that any fractional Shares resulting from such
adjustments shall be eliminated.
If the Company shall at any time merge or consolidate with
or into another corporation, Grantee (or other party entitled to
the Award) will thereafter receive the securities or property to
which a holder of the number of Shares then deliverable upon the
lapse of the Forfeiture Restrictions of the Award would have been
entitled upon such merger or consolidation, and the Company shall
take such steps in connection with such merger or consolidation
as may be necessary to assure that provisions of the Plan shall
thereafter be applicable, as nearly as reasonably may be, in
relation to any securities or property thereafter deliverable
upon lapse of the Forfeiture Restrictions of the Award. A sale
of all or substantially all of the assets of the Company for a
consideration (apart from the assumption of obligations)
constituted primarily of securities shall be deemed a merger or
consolidation for the foregoing purposes. In the event of the
proposed dissolution, liquidation or reorganization of the
Company, other than pursuant to a merger or consolidation as
hereinabove provided, the Forfeiture Restrictions on the Award
shall terminate as of a date to be fixed by the Company's
Compensation Advisory Committee; provided that not less than 120
days (or such shorter period as shall elapse between the date the
Board of Directors shall decide upon a dissolution, liquidation
or reorganization and the effective date of such dissolution,
liquidation or reorganization) prior written notice shall be
given to Grantee and Grantee shall have the right, during such
period, to receive unrestricted Shares covered by the Award,
including Shares granted pursuant to the Award as to which the
Forfeiture Restrictions would not otherwise have lapsed.
4. Status of Shares.
(a) The Grantee agrees that (i) the Shares will not
be sold or otherwise disposed of in any manner which would
constitute a violation of any applicable federal or state laws,
(ii) the certificates representing the Shares shall bear such
legend or legends as the Committee deems appropriate in order to
reflect the Forfeiture Restrictions and to assure compliance with
applicable securities laws, (iii) the Company may refuse to
register the transfer of the Shares on the stock transfer records
of the Company if such proposed transfer would constitute a
violation of the Forfeiture Restrictions or, in the opinion of
counsel satisfactory to the Company, any applicable securities
laws, and (iv) the Company may give related instructions to its
transfer agent, if any, to stop registration of the transfer of
Shares.
(b) As the Forfeiture Restrictions on the Award are
released, a certificate without the legend describing such
Forfeiture Restrictions and evidencing the number of Shares with
respect to which restrictions have been released will be
delivered to the Grantee as soon as practicable.
5. Subject to Plan. The Award granted hereunder has
been issued under the Plan and is specifically subject to and
conditioned upon approval by the stockholders of the Company of
the June 1, 1997 amendment and restatement of the Plan and shall
be null and void ab initio if such approval is not obtained. In
addition to the provisions hereof, this Award will be subject to
the power under the Plan of the Company's Compensation Advisory
Committee and the Board of Directors to make interpretations of
the Plan and of any awards granted thereunder, and to make
determinations and take other actions with respect to the Plan;
provided, however, that if any such interpretations,
determinations or other actions shall conflict with any of the
provisions of this Agreement, the provisions shall hereof
control. By acceptance hereof, Grantee acknowledges receipt of a
copy of the Plan and recognizes and agrees that determinations,
interpretations or other actions respecting the Plan may be made
by a majority of the Board of Directors or by the Compensation
Advisory Committee.
6. Securities Laws. Grantee acknowledges that he has
been informed of, or is otherwise familiar with, the nature and
the limitations imposed by the Securities Act of 1933, as amended
(the "Act"), the Exchange Act, state securities or Blue Sky
laws, and the rules and regulations thereunder (in particular,
Rule 144, promulgated under the Act and Section 16 of the
Exchange Act, and Rule 16b-3 promulgated thereunder), concerning
the restricted stock awarded under this Agreement and agrees to
be bound by the restrictions embodied in such Act, the Exchange
Act, state securities or Blue Sky laws, and all the rules and
regulations promulgated thereunder.
7. Grantee a Stockholder. Grantee shall be entitled to
all rights of a stockholder of the Company, including the right
to vote and to receive all dividends and other distributions made
or paid with respect to the Shares.
8. The Company's Right to Terminate Employment. Nothing
contained in this Agreement shall confer upon Grantee the right
to employment by the Company or any of its affiliates.
9. Withholding. Grantee hereby agrees that he will make
such arrangements as the Company deems necessary to discharge any
federal, state or local taxes imposed upon the Company in respect
of this Award.
10. Entire Agreement. This Agreement contains the
entire agreement of the parties relative to the subject matter
hereof, superseding and terminating all prior agreements or
understandings, whether oral or written, between the parties
hereto relative to the subject hereof, and this Agreement may not
be extended, amended, modified or supplemented without written
consent of the parties hereto.
11. Governing Law. This Agreement and all amendments or
changes relating hereto shall be deemed to have been entered into
pursuant to, and shall be governed by, the laws of the State of
Delaware.
12. Notices. Notices given pursuant hereto shall be
registered or certified mail and shall be deemed delivered four
(4) days after deposit in the United States mail, postage
prepaid, addressed as follows:
If to the Company:
XCL Ltd.
000 Xxx Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
If to Grantee:
IN WITNESS WHEREOF, this Agreement is executed as of the
[]st day of [], 199[].
Attest
XCL LTD.
By:___________________________
Name:_________________________ By:___________________________
Title:________________________ Name:_________________________
Title:________________________
The undersigned Grantee hereby accepts the foregoing
Restricted Stock Award Agreement dated as of the []st day of [],
199[] (the "Date of Grant"), and the undertaking on his part
contained therein, and agrees to all of the terms and conditions
thereto.
____________________________
Grantee
