LA CORTEZ ENERGY, INC. FORM OF RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit
10.1
XX
XXXXXX ENERGY, INC.
FORM
OF
RESTRICTED STOCK UNIT AWARD
AGREEMENT
TO: [Participant]
To
encourage your continued service (your “Service”) as [capacity of
service – employment, office, director, etc. . .] of Xx Xxxxxx Energy,
Inc. (the “Company”), you have been granted this restricted stock unit award
(the “Award”) pursuant to the Company’s 2008 Equity Incentive Plan, as amended
(the “Plan”). The Award represents the right to receive shares of Common Stock
of the Company subject to the fulfillment of the vesting conditions set forth in
this agreement (this “Agreement”).
The
terms of the Award are as set forth in this Agreement and in the Plan. The Plan
is incorporated into this Agreement by reference, which means that this
Agreement is limited by and subject to the express terms and provisions of the
Plan. In the event of a conflict between the terms of this Agreement and the
terms of the Plan, the terms of the Plan shall control. Capitalized terms that
are not defined in this Agreement have the meanings given to them in the Plan.
The most important terms of the Award are summarized as follows:
1. Award
Date:
2. Number
of Restricted Stock Units Subject to this Award:
3. Vesting
Base
Date:
4. Vesting
Schedule: The Award will vest according to the following
schedule:
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Period
of Participant's Continuous
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Service
From the
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Percent
of Total Award That is
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Vesting
Base Date
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Vested
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5. Conversion
of Restricted Stock Units and Issuance of Shares. Upon each vesting of
the Award (each, a “Vest Date”), one share of Common Stock shall be issuable for
each restricted stock unit that vests on such Vest Date (the “Shares”), subject
to the terms and provisions of the Plan and this Agreement. Thereafter, the
Company will transfer such Shares to you upon satisfaction of any required tax
withholding obligations. No fractional shares shall be issued under this
Agreement.
6. Termination of Service. The
unvested portion of the Award will terminate automatically and be forfeited to
the Company immediately and without further notice upon termination of your
Service for any reason (including as a result of death or disability). No Shares
shall be issued or issuable with respect to any portion of the Award that
terminates unvested and is forfeited.
7. Right
to Shares. You shall not have any right in, to or with respect to any of
the Shares (including any voting rights or rights with respect to dividends paid
on the Common Stock) issuable under the Award until the Award is settled by the
issuance of such Shares to you.
8. Taxes.
(a) Generally. You are
ultimately liable and responsible for all taxes owed in connection with the
Award. The Company does not commit and is under no obligation to structure the
Award to reduce or eliminate your tax liability.
(b) Payment of Withholding
Taxes. Prior to any event in connection with the Award (e.g., vesting)
that the Company determines may result in any domestic or foreign tax
withholding obligation, whether national, federal, state or local, including any
social tax obligation (the “Tax Withholding Obligation”), you must arrange for
the satisfaction of the minimum amount of such Tax Withholding Obligation in a
manner acceptable to the Company.
(c) Right to Retain
Shares. The Company may refuse to issue any Shares to you until you
satisfy the Tax Withholding Obligation. To the maximum extent permitted by law,
the Company has the right to retain without notice from Shares issuable under
the Award or from salary payable to you, Shares or cash having a value
sufficient to satisfy the Tax Withholding Obligation.
9. Registration.
(a) Shares not
Registered. The Company does not currently have an effective registration
statement on file with the Securities and Exchange Commission with respect to
the shares of Common Stock subject to the Award. By accepting the
Award, you represent and agree that none of the Shares will be distributed in
violation of applicable federal and state laws and regulations. In
addition, you further represent and agree that you are aware that such
securities may not be transferred at any time without (i) registration under the
Securities Act, or (ii) an exemption from such registration and a written
opinion of legal counsel addressed to the Company that the proposed transfer of
the Shares may be effected without registration under the Securities Act, which
opinion must be in form and from counsel reasonably satisfactory to the
Company. You further represent and agree that you are acquiring the
Award and will acquire any Shares for investment and without any present
intention to sell or distribute the Shares.
(b)
Legends. Each share certificate evidencing the Shares issued
hereunder shall be endorsed with the following legends:
(i) “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS,
AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT
WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR (2) AN EXEMPTION FROM SUCH REGISTRATION EXISTS AND THE
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR APPLICABLE STATE SECURITIES LAWS”; and
(i)
Any legend required by any applicable state securities laws.
10. Award not Transferable.
Neither the Award nor any Restricted Stock Unit included therein may be
transferred, assigned, pledged or hypothecated in any manner (whether by
operation of law or otherwise), and shall not be subject to execution,
attachment or similar process. Upon any attempt to transfer, pledge,
hypothecate or otherwise dispose of the any Restricted Stock Unit included in
the Award or of any right or privilege conferred by the Plan contrary to the
provisions thereof or the provisions of this Agreement, or upon the sale, levy
or attachment or similar process upon the rights and privileges conferred by the
Plan, such Restricted Stock Units shall thereupon terminate and become null and
void.
11. Limitation on Rights; No Right to
Future Grants; Extraordinary Item. By entering into this Agreement and
accepting the Award, you acknowledge that: (a) the Plan is discretionary
and may be modified, suspended or terminated by the Company at any time as
provided in the Plan; (b) the grant of the Award is a one-time benefit and
does not create any contractual or other right to receive future grants of
awards or benefits in lieu of awards; (c) all determinations with respect
to any such future grants, including, but not limited to, the times when awards
will be granted, the number of shares subject to each award, the award price, if
any, and the time or times when each award will be settled, will be at the sole
discretion of the Company; (d) your participation in the Plan is voluntary;
(e) the value of the Award is an extraordinary item which is outside the
scope of your service contract, if any; (f) the Award is not part of normal
or expected compensation for any purpose, including without limitation for
calculating any benefits, severance, resignation, termination, redundancy, end
of service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments; (g) the future value of the Common Stock subject
to the Award is unknown and cannot be predicted with certainty, (h) neither
the Plan, the Award nor the issuance of the Shares confers upon you any right to
continue in the Service (or any other relationship with) the Company or any
Subsidiary, and (i) the grant of the Award will not be interpreted to form
an employment relationship with the Company or any Subsidiary.
12. Professional
Advice. The acceptance of the Award and the sale of Shares issued upon
vesting of any Restricted Stock Units may have consequences under federal and
state tax and securities laws which may vary depending upon the individual
circumstances of the Participant. Accordingly, the Participant
acknowledges that he or she has been advised to consult his or her personal
legal and tax advisor in connection with this Agreement and his or her dealings
with respect to the Award. Without limiting other matters to be
considered with the assistance of the Participant’s professional advisors, the
Participant should consider: (a) the merits and risks of an investment in the
Shares issuable upon vesting of any Restricted Stock Units; and (c) any resale
restrictions that might apply to such Shares under applicable securities
laws.
13. Execution
of Award Agreement. Please acknowledge your acceptance of the terms and
conditions of the Award by signing the original of this Agreement and returning
it to the Company.
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Very
truly yours,
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XX
XXXXXX ENERGY, INC.
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By:
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Name:
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Title:
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ACCEPTANCE AND
ACKNOWLEDGMENT
I,
a resident of (state,
or country if other than U.S.), accept the Restricted Stock Unit Award described
in this Agreement and in the Plan, and acknowledge receipt of a copy of this
Agreement and the Plan, and acknowledge that I have read them carefully and that
I fully understand their contents.
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Dated:
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Taxpayer
I.D. Number
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[Participant]
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Address:
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