EX-10.32 3 d272206dex1032.htm FORM OF PERFORMANCE-BASED RESTRICTED STOCK AWARD REX ENERGY CORPORATION PERFORMANCE-BASED RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.32
XXX ENERGY CORPORATION
2007 LONG-TERM INCENTIVE PLAN
PERFORMANCE-BASED RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (the “Award Agreement”) is effective as of December 14, 2011 (the “Grant Date”) between Xxx Energy Corporation, a Delaware corporation (the “Company”) and Name (the “Recipient”).
WHEREAS, the Recipient is currently an employee of the Company or one of its Affiliates;
1. | Definitions. For purposes of this Award Agreement, the following terms shall have the meanings indicated: |
(a) | “Barrels of Oil Equivalents” or “XXXx” means barrels of oil equivalents for the Performance Period as set forth in the Financial Statements. |
(b) | “BOE Goals” are as set forth on Exhibit A. |
(c) | “Discretionary Cash Flow Per Share” or “DSCF ps” means a financial measure (not recognized by United States generally accepted accounting principles) that is calculated for the Performance Period by adding the following to net income (loss) as stated in the Financial Statements: |
i. | depletion, depreciation and amortization; |
ii. | accretion expenses on ARO; |
iii. | non-cash compensation; |
iv. | income (loss) attributable to minority interests; |
v. | gain/loss on sale of assets; |
vi. | impairment expense; |
vii. | unrealized losses from derivatives; |
viii. | income tax expense (benefit); and |
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ix. | other non-cash expense items to net income at the Committee’s discretion then dividing the resulting sum by the weighted average Shares (as determined on a fully diluted basis) of the Company that are outstanding during the Performance Period, in all cases, as determined in good faith by the Committee based on the Financial Statements. |
(d) | “DSCF ps Goals” are as set forth on Exhibit A. |
(e) | “Financial Statements” means the Company’s audited financial statements for the Performance Period as filed with the Securities and Exchange Commission (or, for purposes of Sections 5(d) and 5(e), the Company’s unaudited financial statements and records as determined in the good faith discretion of the Committee). |
(f) | “Forfeiture Restrictions” shall mean any prohibitions and restrictions set forth herein with respect to the sale or other disposition of Shares issued to the Recipient hereunder and the obligation to forfeit and surrender such shares to the Company. |
(g) | “Goals” means the BOE Goals and the DSCF ps Goals. |
(h) | “Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended. |
(i) | “Performance Period” means the three-year period beginning January 1, 2012 and ending December 31, 2014. |
(j) | “Restricted Shares” shall mean the Shares that are subject to the Forfeiture Restrictions under this Award Agreement. |
Capitalized terms not otherwise defined in this Award Agreement shall have the meanings given to such terms in the Plan.
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i. | The “DSCF ps Percentage Achieved” shall be determined as follows: |
A. | If the DSCF ps Entry Goal is not achieved, or is exactly achieved, for the Performance Period, then the DSCF ps Percentage Achieved shall be 0%. |
B. | If the DSCF ps exceeds the DSCF ps Entry Goal and is between the DSCF ps Entry Goal and the DSCF ps Target Goal, the applicable DSCF ps Percentage Achieved shall be determined by interpolation by determining the sum of the quotient obtained by dividing the DSCF ps minus 9.09 by 0.63 plus 1 ((DSCF ps – 9.09)/0.63 + 1). |
C. | If the DSCF ps Target Goal is exactly achieved or if the DSCF ps is greater than the DSCF ps Target Goal, then the DSCF ps Percentage Achieved shall be 100%. |
ii. | The “BOE Percentage Achieved” shall be determined as follows: |
A. | If the BOE Entry Goal is not achieved, or is exactly achieved, for the Performance Period, then the BOE Percentage Achieved shall be 0%. |
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B. | If the BOE exceeds the BOE Entry Goal and is between the BOE Entry Goal and the BOE Target Goal, the applicable BOE Percentage Achieved shall be determined by interpolation by determining the sum of the quotient obtained by dividing the BOE minus 19,910,000 by 1,380,000 plus 1 ((BOE – 19,910,000)/1,380,000 + 1). |
C. | If the BOE Target Goal is exactly achieved or if the BOE is greater than the BOE Target Goal, then the BOE Percentage Achieved shall be 100%. |
(e) | Change in Control of the Company. Notwithstanding the vesting schedule set forth above, all Forfeiture Restrictions will immediately lapse upon a Change in Control of the Company before March 1, 2015 with respect to 100% of the Target Number of Shares. |
Shares that do not become vested pursuant to Sections 5(a), 5(b), 5(d) or 5(e) above shall be forfeited and the Recipient shall cease to have any rights of a stockholder with respect to such forfeited Shares as of the date of the Recipient’s Termination of Employment or as of March 1, 2015 if the Committee certifies that the Goals with respect to such forfeited Shares have not been satisfied, as applicable.
Upon the lapse of the Forfeiture Restrictions with respect to Shares granted hereby (or, in the event the Forfeiture Restrictions lapse on a Saturday, Sunday, or holiday, as soon as reasonably practicable thereafter), and the satisfaction of the withholding provisions of Section 9, the Company shall cause its registrar and transfer agent to remove all restrictions noted in the Recipient’s registered account with respect to such Shares , and such Shares shall thereafter be transferable by the Recipient (except to the extent that any proposed transfer would, in the opinion of counsel satisfactory to the Company, constitute a violation of applicable securities law).
The Committee may not increase the number of Shares that may be issued under this Award Agreement except for adjustments in accordance with Section 4.5 of the Plan. The Committee may, in its sole discretion, make such adjustments as it deems necessary and appropriate, if any, with respect to the Goals and achievement of the Goals to address the merger or consolidation of the Company, an acquisition or disposition of a significant portion of the Company’s businesses or assets as it exists on the date hereof, any other extraordinary event occurring in relation to the Company during the term of this Award Agreement, or other events or conditions as the Committee, in its sole discretion, deems approriate.
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The Committee shall determine whether the Goals hereunder have been satisfied and, to the extent such Goals have been satisfied, shall certify in writing that such Goals have been satisfied no later than 30 days following the filing of the Financial Statements with the SEC.
7. | Changes in the Company’s Capital Structure. The existence of the Restricted Shares shall not affect in any way the right or power of the Company (or any company the stock of which is awarded pursuant to this Award Agreement) or its stockholders to make or authorize any adjustment, recapitalization, reorganization or other change in its capital structure or its business, engage in any merger or consolidation, issue any debt or equity securities, dissolve or liquidate, or sell, lease, exchange or otherwise dispose of all or any part of its assets or business, or engage in any other corporate act or proceeding, whether of a similar character or otherwise. |
The Company shall have no obligation upon the lapse of any Forfeiture Restrictions to deliver any shares of Stock hereunder until the Company or an Affiliate has received payment sufficient to cover the Minimum Statutory Tax Withholding Obligation with respect to that lapse. Neither the Company nor any Affiliate shall be obligated to advise the Recipient (or other person validly receiving the Restricted Shares) of the existence of the tax or the amount which it will be required to withhold.
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10. | Forfeiture for Cause. This Award shall be subject to the Forfeiture for Cause provisions set forth in Section 4.7 of the Plan. |
16. |
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waiving compliance hereof shall make any waiver of the terms or conditions effective. Any waiver granted by the Company shall be effective only if executed and delivered by a duly authorized executive officer of the Company. The failure of any party at any time or times to require performance of any provisions hereof shall in no manner affect the right to enforce the same. No waiver by any party of any term or condition, or of any breach of any term or condition, contained in this Award Agreement, in one or more instances, shall be construed as a continuing waiver of any such condition or breach, a waiver of any other term or condition, or a waiver of any breach of any other term or condition. |
17. | Governing Law and Severability. This Award Agreement shall be governed by the laws of the State of Delaware, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of the Plan to the substantive law of another jurisdiction. Recipients of Awards under the Plan are deemed to submit to the exclusive jurisdiction and venue of the federal or state courts of Pennsylvania. The invalidity of any provision of this Award Agreement shall not affect any other provision of this Award Agreement, which shall remain in full force and effect. |
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XXX ENERGY CORPORATION: | ||
By: | ||
Name: | Xxxxxxxxx X. Xxxxxxxx | |
Title: | SVP, Human Resources & Administration |
RECIPIENT: | ||
By: |
Name: |
Address: | ||
Facsimile No.: |
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