DAYBREAK OIL AND GAS, INC. RESTRICTED STOCK AWARD AGREEMENT
Exhibit
4.6
DAYBREAK
OIL AND GAS, INC.
2009
RESTRICTED STOCK AND RESTRICTED UNIT PLAN
This
Restricted Stock Award Agreement (the “Agreement”) is made,
effective as of the _____ day of _________, 2___ (the “Grant Date”), by and
between Daybreak Oil and Gas, Inc. (the “Company”)
and _______________ (the
“Grantee”).
RECITALS:
WHEREAS, the Company has
adopted the 2009 Daybreak Oil and Gas, Inc. Restricted Stock and Restricted
Stock Unit Plan (the “Plan”) pursuant to
which awards of restricted shares of Common Stock of the
Company may be granted; and
WHEREAS, the Committee has
determined that it is in the best interests of the Company and its stockholders
to grant the award of restricted shares of Common Stock provided for herein (the
“Restricted Stock
Award”) to the Grantee in recognition of the Grantee’s services to the
Company, such grant to be subject to the terms set forth herein.
NOW, THEREFORE, in
consideration for the mutual covenants hereinafter set forth, the parties hereto
agree as follows:
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1.
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Grant
of Restricted Stock Award. Pursuant to
Section 7 of the Plan, the Company
hereby issues to the Grantee on the Grant Date a Restricted Stock Award
consisting of, in the aggregate, ____ shares of Common Stock in the
capital of the Company (hereinafter called the “Restricted
Stock”).
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2.
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Incorporation
by Reference. The provisions of the Plan are hereby
incorporated herein by reference. Except as otherwise expressly
set forth herein, this Agreement shall be construed in accordance with the
provisions of the Plan and any capitalized terms not otherwise defined in
this Agreement shall have the definitions set forth in the
Plan. The Committee shall have the authority to interpret and
construe the Plan and this Agreement and to make any and all
determinations thereunder, and its decision shall be binding and
conclusive upon the Grantee and his/her legal representative in respect of
any questions arising under the Plan or this
Agreement.
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3.
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Restrictions. Except
as provided in the Plan or this Agreement, the restrictions on the
Restricted Stock are that they will be forfeited by the Grantee and all of
the Grantee’s rights to such shares shall immediately terminate without
any payment or consideration by the Company, in the event of any sale,
assignment, transfer, hypothecation, pledge or other alienation of such
Restricted Stock made or attempted, whether voluntary or involuntary, and
if involuntary whether by process of law in any civil or criminal suit,
action or proceeding, whether in the nature of an insolvency or bankruptcy
proceeding or otherwise, without the written consent of the
Board.
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1
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4.
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Vesting.
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(a)
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Except
as otherwise provided herein, the restrictions described in Section 3
above will lapse with respect to 25% of the Restricted Stock on each of
the first four anniversaries of the Grant Date (each such date a “Vesting Date”);
provided,
that,
except as otherwise provided herein, the Grantee is then employed by the
Company. If the Grantee’s Continuous Service is terminated at
any time prior to a Vesting Date, the unvested Restricted Stock shall
terminate and be forfeited upon such cessation of service, unless
otherwise provided in this Section 4. Notwithstanding the
foregoing, in accordance with Section 4(b) of the Plan, the Committee may
elect to accelerate the vesting of all or any portion of the Restricted
Stock Award.
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(b)
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Change in
Control. At a time determined by the Committee prior to
a Change in Control, all restrictions on this Restricted Stock Award shall
expire and the Restricted Stock shall automatically become vested and
immediately nonforfeitable in full.
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5.
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Taxes.
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(a)
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Withholding. The
Grantee shall be required to pay to the Company or any Affiliate, and the
Company or any Affiliate shall have the right and is hereby authorized to
withhold, from any cash, shares of Common Stock, other securities or other
property deliverable under this Restricted Stock Award, the amount (in
cash, Common Stock, other securities or other property) of any required
withholding taxes in respect of this Restricted Stock Award or any payment
or transfer under this Restricted Stock Award or under the Plan and to
take such other action as may be necessary in the opinion of the Committee
or the Company to satisfy all obligations for the payment of such
withholding and taxes. The Grantee may satisfy this withholding
liability by: (a) the delivery of shares of Common Stock (which are
not subject to any pledge or other security interest and are Mature
Shares) owned by the Grantee having a Fair Market Value equal to such
withholding liability or (b) having the Company withhold from the
number of shares of Common Stock otherwise issuable or deliverable
pursuant to the settlement of the Restricted Stock Award a number of
shares with a Fair Market Value equal to such withholding liability (but
no more than the minimum required statutory withholding
liability).
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(b)
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Section 83(b) of the
Code. If the Grantee properly elects, within thirty (30)
days of the Grant Date, to include in gross income for federal income tax
purposes an amount equal to the Fair Market Value of the Restricted Stock
as of the Grant Date pursuant to Section 83(b) of the Code, to the extent
required by law, the Grantee shall pay to the Company, or make other
arrangements satisfactory to the Committee to pay to the Company in the
year of such grant, any federal, state or local taxes required to be
withheld with respect to such shares. If the Grantee fails to
make such payments, the Company or its Affiliates shall, to the extent
permitted by law, have the right to deduct from any payment of any kind
otherwise due to the Grantee any federal, state or local taxes of any kind
required by law to be withheld with respect to such
shares.
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2
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6.
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Rights
as Stockholder; Dividends. The Grantee shall be the
record owner of the Restricted Stock unless and until such shares of
Common Stock are sold or otherwise disposed of, and as record owner shall
be entitled to all rights of a stockholder of the Company, including,
without limitation, voting rights, if any, with respect to the Restricted
Stock while the Restricted Stock is held in
custody.
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7.
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Certificates. Reasonably
promptly following the Grant Date, the Company shall cause to be issued to
the Grantee a certificate in respect of the Restricted Stock which shall
bear the following (or a similar) legend in addition to any other legends
that may be required under federal or state securities
laws:
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“TRANSFER
OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
OF THE DAYBREAK OIL AND GAS, INC. 2009 RESTRICTED STOCK AND RESTRICTED STOCK
UNIT PLAN AND A RESTRICTED STOCK AWARD AGREEMENT DATED AS OF [INSERT DATE]
ENTERED INTO BETWEEN DAYBREAK OIL AND GAS, INC. AND THE REGISTERED
OWNER. A COPY OF SUCH PLAN AND AWARD AGREEMENT IS ON FILE AT THE
PRINCIPAL EXECUTIVE OFFICES OF DAYBREAK OIL AND GAS, INC.”
Upon the
expiration of the restrictions, the Company shall deliver to the Grantee (or
his/her legal representative, beneficiary or heir, if applicable) a stock
certificate for the shares of Common Stock that have not been forfeited free
from legend except as otherwise required by applicable law.
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8.
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Compliance
with Laws and Regulations. The issuance and
transfer of shares of Common Stock shall be subject to compliance by the
Company and the Grantee with all applicable requirements of securities
laws and with all applicable requirements of any stock exchange on which
the Company’s shares of Common Stock may be listed at the time of such
issuance or transfer.
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9.
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No
Right to Continuous Service. Nothing in
this Agreement shall be deemed by implication or otherwise to impose any
limitation on any right of the Company or any of its Affiliates to
terminate the Grantee’s Continuous Service at any
time.
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10.
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Notices. All
notices, demands and other communications provided for or permitted
hereunder shall be made in writing and shall be delivered by registered or
certified first class mail, return receipt requested, telecopier, courier
service or personal delivery:
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3
If to the
Company:
Daybreak Oil and Gas, Inc.
000 Xxxx Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
(000) 000-0000
If to the
Grantee, at the Grantee’s last known address on file with the
Company.
All such
notices, demands and other communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) business days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied.
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11.
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Bound
by Plan. By signing this Agreement, the Grantee
acknowledges that he/she has received a copy of the Plan and has had an
opportunity to review the Plan and agrees to be bound by all of the terms
and provisions of the Plan.
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12.
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Beneficiary. The
Grantee may file with the Committee a written designation of a beneficiary
on such form as may be prescribed by the Committee and may, from time to
time, amend or revoke such designation. If no designated
beneficiary survives the Grantee, the executor or administrator of the
Grantee’s estate shall be deemed to be the Grantee’s
beneficiary.
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13.
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Successors. The
terms of this Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and on the Grantee and the
beneficiaries, executors and administrators, heirs and successors of the
Grantee.
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14.
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Amendment
of Restricted Stock Award. Subject to Section 15 of this
Agreement, the Committee at any time and from time to time may amend the
terms of this Restricted Stock Award; provided, however, the
Grantee’s rights under this Restricted Stock Award shall not be materially
and adversely affected by any such amendment without the Grantee’s
consent.
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15.
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Adjustments. This
Restricted Stock Award is subject to adjustment pursuant to Section 12 of
the Plan.
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16.
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Governing
Law. This
Agreement shall be governed by the laws of the State of Washington without
regard to conflict of laws
principles.
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17.
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Interpretation. Any
dispute regarding the interpretation of this Agreement shall be submitted
by the Grantee or the Company to the Committee for review. The
resolution of such a dispute by the Committee shall be binding on the
Company and the Grantee.
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18.
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Severability. Every
provision of this Agreement is intended to be severable and any illegal or
invalid term shall not affect the validity or legality of the remaining
terms.
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19.
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Headings. The
headings of the Sections hereof are provided for convenience only and are
not to serve as a basis for interpretation of construction, and shall not
constitute a part of this
Agreement.
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20.
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Signature
in Counterparts. This Agreement may be signed in
counterparts, each of which shall be deemed an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
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[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date
set forth below.
| DAYBREAK OIL AND GAS, INC. | |||
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By:
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/s/ | |
| Name: | |||
| Title: | |||
| GRANTEE | |||
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By:
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/s/ | |
| Name: | |||
| Title: | |||
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