Exhibit 10.3
Agreement No. 2005 LTIP-2
XXXXXX DRILLING COMPANY
PERFORMANCE-BASED
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this "Agreement") is made and entered
into by and between Xxxxxx Drilling Company (the "Company") and [Executive
Officer Name], ("Grantee"), on the ___ day of May, 2005 (the "Grant Date"),
subject to the terms and provisions of Xxxxxx Drilling Company 2005 Long-Term
Incentive Plan, effective as of March 18, 2005 (the "2005 Plan"). The 2005 Plan
is hereby incorporated herein in its entirety by this reference. Capitalized
terms not otherwise defined in this Agreement shall have the meaning given to
such terms in the 2005 Plan.
WHEREAS, Grantee is an Employee of the Company, and in connection
therewith, the Company desires to grant to Grantee [no. of shares] shares of the
Company's Common Stock, par value $.1666 per share ("Common Stock"), subject to
the terms and conditions of this Agreement and the 2005 Plan, with a view to
increasing Grantee's interest in the Company's success and growth; and
WHEREAS, Grantee desires to be the holder of shares of Common Stock
subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Grant of Common Stock. Subject to the restrictions, forfeiture
provisions and other terms and conditions set forth herein (a) the Company
grants to Grantee, [no. in words (no. in numbers)] shares of Common Stock of the
Company ("Grant Shares"), and (b) Grantee shall have all rights and privileges
of ownership of such shares subject to this Agreement and the 2005 Plan. The
Company may require Grantee to reimburse the Company for, or the Company may
withhold from any amounts which it may owe Grantee, all amounts required by
applicable federal, state and local law in respect of the issuance or vesting of
the Grant Shares. This Agreement is subject to the terms and conditions of the
2005 Plan, which is incorporated herein in its entirety by reference.
2. Transfer Restrictions.
(a) Generally. Grantee shall not sell, assign, transfer, exchange,
pledge, encumber, gift, devise, hypothecate or otherwise dispose of
(collectively, "Transfer") any Grant Shares. Any purported Transfer of Grant
Shares in breach of this Agreement shall be void and ineffective and shall not
operate to Transfer any interest or title in the purported transferee.
(b) The Transfer restrictions imposed by this Section 2 shall lapse
in accordance with the following schedule, until all Grant Shares are fully
vested; provided that, subject to Section 3(a), Grantee then is, and
continuously since the Grant Date has been, an Employee of the Company. The
Grant Shares as to which such restrictions have lapsed are referred to as
"Vested Shares."
Vesting Date Vested %
------------ --------
-- --
-- --
-- --
Total 100%
(c) Accelerated Vesting: Notwithstanding the vesting schedule set
forth with respect to the Grant Shares in Section 2(b), the Transfer
restrictions imposed by Section 2 shall lapse in accordance with the following
accelerated vesting schedule if the Fair Market Value of the Company's Common
Stock increases to the specified price per Share (the "Target Share Value") for
at least __ consecutive trading days over a __-day period, subject to
certification by the Compensation Committee of the Company's Board of Directors
(the "Committee") that the specified Target Share Value has been attained during
the specified trading period; provided, however, that in no event shall the
Grant Shares become 100% vested under this Section 2(c) earlier than one day
after the ________ anniversary of the Grant Date of such Shares.
Target Share Value Percentage of Restricted
Shares Vested
------------------------ ----------------------------
$ -- --
------------------------ ----------------------------
(b) Dividends, Splits and Voting Rights. If the Company (i) declares
a stock dividend or makes a distribution on Common Stock in shares of Common
Stock, (ii) subdivides or reclassifies outstanding shares of Common Stock into a
greater number of shares of Common Stock or (iii) combines or reclassifies
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, then the number of Grant Shares subject to the Transfer restrictions of
this Section 2 shall be proportionately increased or reduced, as applicable, so
as to prevent the enlargement or dilution of Grantee's rights and duties
hereunder. The determination of the Compensation Committee (the "Committee") of
the Company's Board of Directors
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regarding such adjustments shall be binding. In addition, the Grantee shall have
the right to vote the Grant Shares while they remain subject to the Transfer
restrictions of this Section 2.
(c) Change in Control. If there is a Change in Control of the
Company (as defined in the 2005 Plan), the Transfer restrictions of this Section
2 shall automatically cease as of the date immediately preceding the effective
date of such Change in Control, and all the Grant Shares shall thus be 100%
vested on the effective date of the Change in Control.
3. Status of Grant Shares upon Termination of Employment.
(a) Termination of Employment. If Grantee's Employment with the
Company is terminated due to death or Disability of the Grantee, then, in either
such event, all Grant Shares shall become fully vested and transferable to the
Grantee free of restrictions.
For purposes of this Section 3(a), "Disability" means as determined
by the Committee in its discretion exercised in good faith, a physical or mental
condition of the Grantee that would entitle him to payment of disability income
payments under the Company's long-term disability insurance policy or plan for
Employees, as then effective, if any; or in the event that the Grantee is not
covered, for whatever reason, under the Company's long-term disability insurance
policy or plan, "Disability" means a permanent and total disability as defined
in Code Section 22(e)(3). A determination of Disability may be made by a
physician selected or approved by the Committee and, in this respect, the
Grantee shall submit to any reasonable examination(s) required by such physician
upon request.
If Grantee's Employment with the Company is voluntarily or
involuntarily terminated by the Company or Grantee for any reason other than due
to death or Disability, then Grantee shall immediately forfeit all Grant Shares
which are not Vested Shares. A Transfer of Employment by the Grantee, without an
interruption of Employment service, between or among the Company and any parent
or subsidiary of the Company, shall not be considered a termination of
Employment for purposes of this Agreement.
(b) Forfeited Shares. All shares of Common Stock forfeited hereunder
automatically shall revert to the Company and become canceled. Any
certificate(s) representing Grant Shares which include forfeited shares shall
only represent that number of Grant Shares which have not been forfeited
hereunder. Upon the Company's request, Grantee agrees to tender to the Company
any certificate(s) representing Grant Shares which include forfeited shares for
a new certificate representing the unforfeited number of Grant Shares.
4. Issuance of Certificate.
(a) The Grant Shares may not be Transferred until they become Vested
Shares. Further, the Vested Shares may not be sold or otherwise disposed of in
any manner which would constitute a violation of any applicable federal or state
securities laws in the opinion of counsel for the Company. The Company shall
cause to be issued a stock certificate, registered in the name of the Grantee,
evidencing the Grant Shares upon receipt of a stock power duly endorsed in blank
with respect to such shares. Each such stock certificate shall bear the
following legend:
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The transferability of this certificate and the shares of stock
represented hereby are subject to the restrictions, terms and
conditions (including forfeiture and restrictions against transfer)
contained in the Xxxxxx Drilling Company 2005 Long-Term Incentive
Plan (the "2005 Plan") and a
Restricted Stock Agreement entered into
between the registered owner of such shares and Xxxxxx Drilling
Company. Copies of the 2005 Plan and
Restricted Stock Agreement are
on file in the main corporate offices of Xxxxxx Drilling Company.
(b) The Certificate issued pursuant to this Section 4, together with
the stock powers relating to the Grant Shares evidenced by such certificate,
shall be held by the Company. The Company shall issue to the Grantee a receipt
evidencing the certificates held by it which are registered in the name of the
Grantee.
5. Grantee's Representations. Notwithstanding any provision hereof to
the contrary, the Grantee hereby agrees and represents that Grantee will not
acquire any Grant Shares, and that the Company will not be obligated to issue
any Grant Shares to the Grantee hereunder, if the issuance of such shares
constitute a violation by the Grantee or the Company of any law or regulation of
any governmental authority. Any determination in this regard that is made by the
Committee, in good faith, shall be final and binding. The rights and obligations
of the Company and the Grantee are subject to all applicable laws and
regulations
6. Tax Withholding. To the extent that the receipt of the Grant Shares
results in compensation income to Grantee for federal, state or local income tax
purposes, Grantee shall deliver to Company at such time the sum that the Company
requires to meet its tax withholding obligations under applicable law or
regulation , which sum may be satisfied in cash, by directing the Company to
withhold such portion of the Vested Shares that has a value equal to such sum or
by tendering other Common Stock to the Company that has a value equal to such
sum, and, if Grantee fails to do so, Company is authorized to (a) withhold from
any cash or stock remuneration then or thereafter payable to Grantee any tax
required to be withheld, or (b) sell such number of Grant Shares before their
Transfer to Grantee as is appropriate to satisfy such tax withholding
requirements, before transferring the resulting net number of shares to Grantee
in full satisfaction of its obligations under this Agreement.
7. Consideration for Shares. The services rendered by the Employees
shall be deemed to be the purchase consideration for the issuance of the Grant
Shares after they become vested, based on the par value ($.1666) of each vested
Grant Share.
8. Miscellaneous.
(a) Certain Transfers Void. Any purported Transfer of shares of
Common Stock in breach of any provision of this Agreement shall be void and
ineffective, and shall not operate to Transfer any interest or title in the
purported transferee.
(b) No Fractional Shares. All provisions of this Agreement concern
whole shares of Common Stock. If the application of any provision hereunder
would yield a fractional
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share, such fractional share shall be rounded down to the next whole share if it
is less than 0.5 and rounded up to the next whole share if it is 0.5 or more.
(c) Not an Employment Agreement. This Agreement is not an Employment
agreement, and no provision of this Agreement shall be construed or interpreted
to create any Employment relationship between Grantee and the Company for any
time period. The Employment of Grantee with the Company shall be subject to
termination to the same extent as if this Agreement had not been executed.
(d) Dispute Resolution. Any dispute arising out of or relating to
this Agreement, or any breach hereof, shall be resolved by binding arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association as then in effect, and before a single arbitrator unless otherwise
mutually agreed by the parties. Judgment on any award rendered by the arbitrator
may be entered in any court of competent jurisdiction. The venue for any
arbitration proceeding shall be in Xxxxxx County,
Texas, otherwise mutually
agreed by the parties. All costs and expenses, including attorneys' fees,
relating to the resolution of any such dispute shall be borne by the party
incurring such costs and expenses.
(e) Notices. Any notice, instruction, authorization, request or
demand required hereunder shall be in writing, and shall be delivered either by
personal delivery, by telegram, telex, telecopy or similar facsimile means, by
certified or registered mail, return receipt requested, or by courier or
delivery service, addressed to the Company at its then current main corporate
address, and to Grantee at his address indicated on the Company's stock records,
or at such other address and number as a party has previously designated by
written notice given to the other party in the manner hereinabove set forth.
Notices shall be deemed given when received, if sent by facsimile means
(confirmation of such receipt by confirmed facsimile transmission being deemed
receipt of communications sent by facsimile means); and when delivered and
receipted for (or upon the date of attempted delivery where delivery is
refused), if hand-delivered, sent by express courier or delivery service, or
sent by certified or registered mail, return receipt requested.
(f) Amendment and Waiver. This Agreement may be amended, modified or
superseded only by written instrument executed by or on behalf of the Committee
and by Grantee. Any waiver of the terms or conditions hereof shall be made only
by a written instrument executed and delivered by the party waiving compliance.
Any waiver granted by the Company shall be effective only if executed and
delivered by a duly authorized executive officer of the Company other than
Grantee. The failure of any party at any time or times to require performance of
any provisions hereof shall in no manner effect the right to enforce the same.
No waiver by any party of any term or condition herein, or the breach thereof,
in one or more instances shall be deemed to be, or construed as, a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or the breach of any other term or condition.
(g) Governing Law and Severability. This Agreement shall be governed
by the internal laws, and not the laws of conflict, of the State of
Texas. The
invalidity of any
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provision of this Agreement shall not affect any other provision of this
Agreement, which shall remain in full force and effect.
(h) Successors and Assigns. Subject to the limitations which this
Agreement imposes upon transferability of shares of Common Stock, this Agreement
shall bind, be enforceable by, and inure to the benefit of, the Company and its
successors and assigns, and Grantee, and Grantee's permitted assigns under the
2005 Plan, and, upon his death, estate and beneficiaries thereof (whether by
will or the laws of descent and distribution), executors, administrators,
agents, legal and personal representatives.
IN WITNESS WHEREOF, this
Restricted Stock Agreement is granted and executed as
of the date first written above.
XXXXXX DRILLING COMPANY
By:
----------------------------------
Name:
Title:
GRANTEE:
[Name of Executive Officer]
-------------------------------------
Signature
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