BRIGHAM EXPLORATION COMPANY RESTRICTED STOCK AGREEMENT
Exhibit 10.45
XXXXXXX EXPLORATION COMPANY
1997 INCENTIVE PLAN
THIS AGREEMENT, made as of the
_____
day of
_____, 20
_____, by and between XXXXXXX
EXPLORATION COMPANY, a Delaware corporation (the “Company”), and
_____
(“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, as amended (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), 3(c) and 3(d), with respect to each Award of Restricted
Shares to Employee, the Restricted Shares subject to 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 Employee’s termination of employment during the Restricted Period due to death
during the Restricted Period, then, the Awards covered hereby that have not vested shall be deemed
to have vested as of the date of the Employee’s death and the Restricted Period applicable to such
shares shall terminate.
(c) Upon (i) Employee’s termination of employment during the Restricted Period due to
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.
(d) If either (1) Xxx X. Xxxxxxx is no longer both the Chief Executive Officer and
Chairman of the Board of the Company, or (2) any “person,” as that term is defined in Section
3(a)(9) of the Securities Exchange Act of 1934 (the “Exchange Act”) (other than the Company, any of
its subsidiaries, any employee benefit plan of the Company or any of its subsidiaries, or any
entity organized, appointed or established by the Company for or pursuant to the terms of such a
plan), together with all “affiliates” and “associates” (as such terms are defined in Rule 12b-2
under the Exchange Act) of such person, or any “Person” or “group” (as those terms are used in
Sections 13(d) and 14(d) of the Exchange Act), becomes the “beneficial owner” or “beneficial
owners” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
securities of the Company representing in the aggregate forty-nine percent (49%) or more of either
the then outstanding shares of Common Stock of the Company or the voting power of the Company, in
either such case (each of the events described in (1) and (2) above being referred to herein as a
“Fundamental Change”), and Recipient’s employment with the Company is involuntarily terminated
within two (2) years of such Fundamental Change, then immediately upon such termination, the
Restricted Shares covered hereby that have not vested shall vest as of such date and the Restricted
Period applicable to such Restricted Shares shall terminate. In the event that within two (2)
years of a Fundamental Change Employee’s job responsibilities are substantially reduced, his annual
salary is reduced, or he is required to move his office location more than 30 miles from its
existing location, and Employee terminates his employment due to such reduction or required move
within 15 days of such reduction or the announcement of the required move, then Employee shall be
deemed to have been involuntarily terminated for purposes of this paragraph, and immediately upon
such termination, the Restricted Shares covered hereby that have not vested shall vest as of such
date and the Restricted Period applicable to such Restricted Shares shall terminate.
(e) 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.
(f) 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 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.
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(g) 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.
(h) 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 the Restricted Shares until such
Restricted Shares with respect to which such dividend or other distribution was paid or made are
either vested or forfeited; provided further, that no dividend or other distribution shall be
payable upon the vesting of Restricted Shares in accordance with Section 3(d). 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 vest in accordance with Section 3(d), then Employee shall
not be entitled to receive such dividend or distribution with respect to such Restricted Shares and
such dividend or distribution with respect to such Restricted Shares shall 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 other than Section 3(d), 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. Any
amount payable pursuant to the preceding sentence shall be paid to the Employee as soon as
administratively practicable but no later than the March 15th following the end of the
calendar year in which the right to such payment is no longer subject to a substantial risk of
forfeiture under Section 409A of the Internal Revenue Code.
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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 statutory
minimum taxes required by law to be withheld with respect to the shares of Restricted Stock with
respect to which such restrictions have terminated.
(ii) The Company may elect to allow Employee, to the extent permitted by law, 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:
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
, 20 _____. 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 Delaware, 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.
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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
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.
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: | ||||||||
| Name: | Xxx X. Xxxxxxx | |||||||
| Title: | President and CEO | |||||||
| EMPLOYEE | ||||||||
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EXHIBIT A
RESTRICTED STOCK AWARDS
| Number of | ||||||||
| Shares of Restricted | Duration of | Scheduled | ||||||
| Award | Stock | Issue Date | Restricted Period | Termination Date | ||||
1. |
Commencing on __________ and ending at 12:01 AM on __________ | 12:01 AM on | ||||||
2. |
Commencing on __________ and ending at 12:01 AM on __________ | 12:01 AM on | ||||||
3. |
Commencing on __________ and ending at 12:01 AM on __________ | 12:01 AM on | ||||||
4. |
Commencing on __________ and ending at 12:01 AM on __________ | 12:01 AM on | ||||||
5. |
Commencing on __________ and ending at 12:01 AM on __________ | 12:01 AM on |
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