NEWPARK RESOURCES, INC. RESTRICTED STOCK UNIT AGREEMENT
Exhibit 4.12
NEWPARK RESOURCES, INC.
1. Grant of Restricted Stock Unit.
(a) Subject to the conditions described in this agreement (the “Award Agreement”) and
in the Newpark Resources, Inc. 2006 Equity Incentive Plan (As Amended and Restated Effective
June 10, 2009), as may be amended from time to time (the “Plan”), Newpark Resources, Inc., a
Delaware corporation (the “Company”), hereby grants to ____________________________
(“Participant”) ____________________ (______) Restricted Stock Units. This Award of
Restricted Stock Units shall be effective as of the date (the “Date of Grant”) of approval
by the Compensation Committee. The Date of Grant is ________________ _____, 20___. All
capitalized terms not otherwise defined herein shall have the meanings set forth in the
Plan, the terms of which are incorporated herein by reference.
(b) The Company shall establish and maintain a Restricted Stock Unit account for the
Participant, and such account shall be credited for the number of Restricted Stock Units
granted to the Participant. The Restricted Stock Unit account shall be credited for any
securities or other property (including cash dividends) declared and distributed during the
Restriction Period with respect to one Share of Common Stock for each Restricted Stock Unit
(“Notional Dividends”). Any such property shall be subject to the same vesting schedule as
the Restricted Stock Units to which they relate and references herein to a Restricted Stock
Unit shall mean and include all Notional Dividends with respect to such Restricted Stock
Unit.
2. Vesting.
(a) Vesting Schedule. Subject to the satisfaction of the terms and conditions
set forth in the Plan and this Award Agreement, the interest of the Participant in the
Restricted Stock Units shall vest according to the following schedule:
(i) ____________ of the Restricted Stock Units (rounded to the nearest whole
number of shares) shall vest on the[ first anniversary] of the Date of Grant.
(ii) ____________ of the Restricted Stock Units (rounded to the nearest whole
number of shares) shall vest on the [second anniversary] of the Date of Grant.
(iii) [Additional anniversaries as necessary.]
(iv) The remainder of the Restricted Stock Units shall vest on the _______
anniversary of the Date of Grant.
The term “Restriction Period” refers to the period, applicable to a given Restricted Stock
Unit, from the Date of Grant until that Restricted Stock Unit has become vested and the
restrictions thereon have lapsed, whether pursuant to this Section 2(a) or Section 2(b),
below. References to the end of the Restriction Period or to times following the Restriction
Period shall refer to the time of, or the time following, as the case may be, the vesting of
a Restricted Stock Unit and the lapse of the restrictions thereon, and shall not be
construed to refer to the event of or the period following the forfeiture of a Restricted
Stock Unit.
(b) Vesting upon Change in Control. Notwithstanding the foregoing, in the
event of a Change in Control, then immediately prior to the consummation of such Change in
Control, any of the Restricted Stock Units held by Participant which remain unvested at such
time shall immediately become vested. For purposes of this Award Agreement, “Change of
Control” shall have the meaning set forth in the Plan unless the Participant has entered
into a change of control letter agreement with the Company (a “Change in Control
Agreement”), in which event the term shall have the meaning set forth in the Change in
Control Agreement. To the extent there is any conflict between the definition in the Change
in Control Agreement and the definition in the Plan, the definition in the Change in Control
Agreement shall control. Upon the occurrence of a Change in Control or Potential Change in
Control (as defined in the Change in Control Agreement), the provisions of the Change in
Control Agreement pertaining to the acceleration of vesting of any Awards, including the
Award evidenced by this Award Agreement, shall control.
In the case any item of income under the Award subject to this Award Agreement to which the
definition of “Change in Control” under the Plan or Change in Control Agreement, as
appropriate, would otherwise apply with the effect that the income tax under Section 409A of
the Code would apply or be imposed on income under that Award, but where such tax would not
apply or be imposed if the meaning of the term “Change in Control” met the requirements of
Section 409A(a)(2)(A)(v) of the Code, then the term “Change in Control” herein shall mean,
but only with respect to the income so affected, a transaction, circumstance or event that
constitutes a “Change in Control” under the Plan or Change in Control Agreement, as
appropriate, and that also constitutes a “change in control event” within the meaning of
Treas. Reg. §1.409A-3(i)(5).
3. Payment. Payment of the vested Restricted Stock Units, excluding any Notional Dividends,
shall be made in Shares of Common Stock. The Committee shall cause a stock certificate to be
delivered to Participant with respect to such Shares free of all restrictions hereunder, except for
applicable federal securities laws restrictions. Notional Dividends credited to the Restricted
Stock Unit account with respect to Restricted Stock Units that vest shall be paid in-kind, or, in
the discretion of the Committee, in cash. All payments hereunder shall be made not later than
2-1/2 months after the vesting date of the Restricted Stock Units. Pending the payment or delivery
of amounts, Shares or other property hereunder, the Company’s obligation hereunder shall constitute
an unfunded, unsecured general obligation of the Company.
4. Forfeiture. In the event of the termination of the Participant’s employment during the
Restriction Period by either the Company or by Participant for any reason whatsoever, including,
without limitation, as a result of the Participant’s death or Disability, the unvested portion of
the Restricted Stock Units held by Participant at that time shall immediately be forfeited;
provided, however, that if the Participant is a party to a Change in Control Agreement
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and the Participant’s employment is terminated under circumstances covered by such Change in
Control Agreement, the provisions of the Change in Control Agreement shall control.
5. Restrictions on Transfer. Neither this Award, this Award Agreement nor the Restricted
Stock Units may be assigned, pledged, sold or otherwise transferred or encumbered by the
Participant; provided, however, that the designation of a beneficiary pursuant to the Plan shall
not constitute an assignment, alienation, pledge, sale, transfer or encumbrance. No right or
benefit hereunder shall in any manner be liable for or subject to any debts, contracts,
liabilities, or torts of Participant. Any purported assignment, alienation, pledge, attachment,
sale, transfer or other encumbrance of the Restricted Stock Units, regardless of by whom initiated
or attempted, shall be void and unenforceable against the Company. If, notwithstanding the
foregoing, an assignment, alienation, pledge, attachment, sale, transfer or other encumbrance of
the Restricted Stock Units is effected by operation of law, court order or otherwise, the affected
Restricted Stock Units shall remain subject to the risk of forfeiture, vesting requirement and all
other terms and conditions of this Award Agreement. In the case of Participant’s death or
Disability, Participant’s vested rights under this Award Agreement (if any) may be exercised and
enforced by Participant’s guardian or legal representative.
6. Reorganization of the Company. The existence of this Award Agreement shall not affect in
any way the right or power of the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure
or its business; any merger or consolidation of the Company; any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Common Stock underlying the
Restricted Stock Units or the rights of such Common Stock; the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
7. Changes in Capitalization. In the event that at any time after the Date of Grant the
outstanding shares of Common Stock are changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of a merger, consolidation, spin-off,
recapitalization, reorganization, liquidation, dissolution or other similar corporate change, or
any other increase, decrease or change in the Common Stock without receipt or payment of
consideration by the Company including stock split, stock dividend, combination of shares or the
like, the aggregate number of Restricted Stock Units which have not vested under this Award
Agreement, subject to any required action by the stockholders of the Company, shall automatically
be proportionately adjusted.
8. Certain Restrictions. By executing this Award Agreement, Participant acknowledges that he
will make or enter into such written representations, warranties and agreements and execute such
documents as the Company may reasonably request in order to comply with the securities law or any
other applicable laws, rules or regulations, or with this Award Agreement or the terms of the Plan.
The Company may from time to time impose such conditions on the transfer of the Shares issuable
upon vesting of the Restricted Stock Units as it deems necessary or advisable to ensure that any
transfers of such Shares will satisfy the applicable requirements of federal and state securities
laws. Such conditions may include, without limitation, the partial or complete suspension of the
right to transfer such Shares until the Shares have been registered under the Securities Act of
1933, as amended.
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9. Amendment and Termination. This Award Agreement may not be terminated by the Board of
Directors or the Compensation Committee at any time without the written consent of Participant. No
amendment or termination of the Plan will adversely affect the rights and privileges of Participant
under the Award Agreement or to the Restricted Stock Units granted hereunder without the consent of
Participant.
10. No Guarantee of Employment. Neither this Award Agreement nor the award of Restricted
Stock Units evidenced hereby shall confer upon Participant any right with respect to continuance of
employment with the Company nor shall it interfere in any way with the right the Company would
otherwise have to terminate such Participant’s employment at any time.
11. Taxes and Withholdings.
(a) Tax Consequences. The granting, vesting and/or payments of all or any
portion of the Restricted Stock Units, including any Notional Dividends, may trigger tax
liability. Participant agrees that he shall be solely responsible for all tax liability
arising from the Restricted Stock Units, including the Notional Dividends. Participant is
encouraged to contact his tax advisor to discuss any tax implications which may arise in
connection with the Restricted Stock Units.
(b) Withholding. Participant shall be liable for any and all taxes, including
withholding taxes, arising from the Restricted Stock Units and/or any Notional Dividends.
Participant understands and acknowledges that the Company will not deliver the Shares or
make any other payment hereunder until it is satisfied that appropriate arrangements have
been made to satisfy any tax obligation under this Award Agreement or the Plan and agrees to
make appropriate arrangements suitable to the Company for satisfaction of all tax
withholding obligations. Further, Participant hereby agrees and grants to the Company the
right to withhold from any payments or amounts of compensation, payable in cash or
otherwise, in order to meet any tax withholding obligations under this Award Agreement or
the Plan. As such, if the Company requests that Participant take any action required to
effect any action described in this Section 11 and to satisfy the tax withholding obligation
pursuant to this Award Agreement and the Plan, Participant hereby agrees to promptly take
any such action.
12. No Guarantee of Tax Consequences. The Company, Board of Directors and Compensation
Committee make no commitment or guarantee to Participant that any federal, state or local tax
treatment will apply or be available to any person eligible for benefits under this Award Agreement
and assumes no liability whatsoever for the tax consequences to Participant.
13. Severability. In the event that any provision of this Award Agreement is, becomes or is
deemed to be illegal, invalid, or unenforceable for any reason, or would disqualify the Plan or
this Award Agreement under any law deemed applicable by the Board of Directors or the Compensation
Committee, such provision shall be construed or deemed amended as necessary to conform to the
applicable laws, or if it cannot be construed or deemed amended without, in the determination of
the Board of Directors or the Compensation Committee, materially altering the intent of the Plan or
this Award Agreement, such provision shall be stricken as to such jurisdiction, the Participant or
this Award Agreement, and the remainder of this Award Agreement shall remain in full force and
effect.
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14. Terms of the Plan Control. This Award Agreement and the underlying Award are made
pursuant to the Plan. The terms of the Plan, as amended from time to time and interpreted and
applied by the Compensation Committee, shall govern and take precedence in the event of any
conflict with the terms of this Award Agreement. Notwithstanding the foregoing, if the Participant
is a party to a Change in Control Agreement, in the event of any conflict between the terms of this
Award Agreement and the Plan, and the terms and provisions of such Change in Control Agreement, the
terms of the Change in Control Agreement shall control.
15. Governing Law. This Award Agreement shall be construed in accordance with (excluding any
conflict or choice of law provisions of) the laws of the State of Delaware to the extent federal
law does not supersede and preempt Delaware law.
16. Consent to Electric Delivery; Electronic Signature. Except as otherwise prohibited by
law, in lieu of receiving documents in paper format, Participant agrees, to the fullest extent
permitted by law, to accept electronic delivery of any documents that the Company may be required
to deliver (including, but not limited to, prospectuses, prospectuses supplements, grant or award
notifications and agreements, account statements, annual and quarterly reports, and all other forms
of communications) in connection with this and any other Award made or offered by the Company.
Electronic delivery may be via a Company electronic mail system or by reference to a location on a
Company intranet to which Participant has access. Participant hereby consents to any and all
procedures the Company has established or may establish for an electronic signature system for
delivery and acceptance of any such documents that the Company may be required to deliver, and
agrees that his electronic signature is the same as, and shall have the same force and effect as,
his manual signature.
17. Clawback Policy. Notwithstanding any provisions in the Plan or this Award Agreement to
the contrary, this Award Agreement, the Restricted Stock Units subject to this Award Agreement and
any Shares of Common Stock issuable (and Notional Dividends accrued thereon) pursuant to this Award
Agreement shall be subject to potential cancellation, rescission, clawback and recoupment (i) to
the extent necessary to comply with the requirements of the Xxxx-Xxxxx Xxxx Street Reform and
Consumer Protection Act of 2010 and any regulations or listing requirements promulgated thereunder,
and/or (ii) as may be required in accordance with the terms of any clawback/recoupment policy as
may be adopted by the Company to comply with the Xxxx-Xxxxx Xxxx Street Reform and Consumer
Protection Act of 2010 and any regulations or listing requirements promulgated thereunder.
18. Section 409A. It is intended that the provisions of this Award Agreement comply with
Section 409A of the Code, and all provisions of this Award Agreement shall be construed and
interpreted in a manner consistent with the requirements for avoiding taxes or penalties under
Section 409A. If, at the time of Participant’s separation from service (within the meaning of
Section 409A, (i) Participant is a specified employee (within the meaning of Section 409A) and
using the identification methodology selected by the Company from time to time), and (ii) the
Company shall make a good faith determination that an amount payable hereunder constitutes deferred
compensation (within the meaning of Section 409A) the payment of which is required to be delayed
pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties
under Section 409A, then the Company shall not pay such amount on the otherwise scheduled payment
date pursuant to this Award Agreement but shall instead pay it without interest, on the first
business day after such six-month period, or if earlier, upon the
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Participant’s death. The Company reserves the right to make amendments to this Award
Agreement as the Company deems necessary or desirable to avoid the imposition of taxes or penalties
under Section 409A.
19. Data Authorization. Pursuant to applicable data protection laws, Participant’s personal
data will be collected and used as necessary for the Company’s administration of the Plan and
Participant’s participation in the Plan. Participant’s denial and/or objection to the collection,
processing and transfer of personal data may affect Participant’s participation in the Plan. As
such, Participant voluntarily acknowledges and consents (where required under applicable law) to
the collection, use, processing and transfer of personal data as described herein.
As part of the Company’s administration of the Plan, the Company and its Subsidiaries may hold
certain personal information about Participant including Participant’s name, home address and
telephone number, date of birth, social security number or other employee identification number,
salary, nationality, job title, any Shares of Common Stock or directorships held in the Company,
details of all options, units or any other entitlement to Shares of Common Stock awarded, canceled,
purchased, vested, unvested or outstanding in Participant’s favor. This information is held for
the purpose of managing and administering the Plan (“Data”). The Data may be provided by
Participant or collected, where lawful, from third parties, and the Company or its subsidiaries
will process the Data for the exclusive purpose of implementing, administering and managing
Participant’s participation in the Plan. Data processing will take place through electronic and
non-electronic means as necessary to administer the Plan and will be handled in conformance with
the confidentiality and security provisions as set forth by applicable laws and regulations in
Participant’s country of residence (and country of employment, if different). The Data will be
accessible within the Company’s organization only by those persons requiring access for purposes of
the implementation, administration and operation of the Plan and for Participant’s participation in
the Plan.
The Company and its Subsidiaries may transfer Data amongst themselves as necessary for the
purpose of implementation, administration and management of Participant’s participation in the
Plan, and the Company and its Subsidiaries may each further transfer Data to any third parties
assisting the Company in the implementation, administration and management of the Plan. Please
note these entities may be located in the European Economic Area, the United States or elsewhere in
the world. Participant hereby authorizes (where required under applicable law) these parties to
receive, possess, use, retain and transfer the Data, in electronic or other form, for purposes of
implementing, administering and managing Participant’s participation in the Plan. This includes
any requisite transfer of such Data as may be required for the administration of the Plan and/or
the subsequent holding of Shares of Common Stock on Participant’s behalf to a broker or other third
party with whom Participant may elect to deposit any Shares of Common Stock acquired pursuant to
the Plan.
Participant may, at any time, exercise Participant’s rights provided under applicable personal
data protection laws. These rights may include (i) obtain confirmation as to the existence of the
Data, (ii) verify the content, origin and accuracy of the Data, (iii) request the integration,
update, amendment, deletion, or blockage of the Data, (iv) oppose, for legal reasons, the
collection, processing or transfer of the Data which is not necessary or required for the
impletion, administration and/or operation of the Plan and Participant’s participation in the Plan,
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and (v) withdraw Participant’s consent to the collection, processing or transfer of Data as
provided hereunder (in which case, Participant’s Award will be null and void). Participant may
seek to exercise these rights by contacting the Participant’s local Human Resources manager or the
Company’s Human Resources Department.
[signature blanks follow]
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Executed: _______________________________.
| NEWPARK RESOURCES, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted: _______________________________.
| PARTICIPANT: | ||||
| [PARTICIPANT NAME INSERT HERE] | ||||
| Address: | ||||
| [PARTICIPANT ADDRESS OF | ||||
| [RECORD INSERT HERE] | ||||
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