EXHIBIT 4.12
GRANT NO.: 001
BLACKWATER MIDSTREAM CORP.
2008 INCENTIVE PLAN
RESTRICTED SHARE AGREEMENT
Blackwater Midstream Corp., a Nevada corporation (the "Company"), grants
shares of common stock, $.001 par value (the "Shares"), of the Company to the
Grantee named below, subject to the vesting conditions set forth in the
attachment. Additional terms and conditions of the grant are set forth in this
cover sheet, in the attachment, and in the Company's 2008 Incentive Plan (the
"Plan").
Grant Date: MAY 7, 2008
Name of Xxxxxxx: XXXXXXXXXXX X. XXXXXX
Xxxxxxx's Social Security Number:
Number of Shares Covered by Xxxxx: 100,000
Purchase Price per Share: $0.001
Vesting: FULLY VESTED ON MAY 7, 2008
Manner of Payment (check appropriate space): _______ cash/check _______ services
BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS
DESCRIBED IN THE ATTACHED AGREEMENT AND IN THE PLAN, A COPY OF WHICH IS ALSO
ATTACHED. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY REVIEWED THE PLAN, AND AGREE
THAT THE PLAN WILL CONTROL IN THE EVENT ANY PROVISION OF THIS AGREEMENT SHOULD
APPEAR TO BE INCONSISTENT.
Grantee: XXXXXXXXXXX X. XXXXXX
/S/ XXXXXXXXXXX X. XXXXXX
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(Signature)
Company: BLACKWATER MIDSTREAM CORP.
/S/ XXXXXXX X. XXXXX
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(Signature)
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
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ATTACHMENTS
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BLACKWATER MIDSTREAM CORP.
2008 INCENTIVE PLAN
RESTRICTED SHARE AGREEMENT
RESTRICTED SHARES/ This grant is an award of Shares in the number of Shares
NONTRANSFERABILITY set forth on the cover sheet, at the Purchase Price set
forth on the cover sheet, and subject to the vesting
conditions described below ("Restricted Shares"). The
purchase price for the Restricted Shares may be paid in
either cash or check made payable to the Company, or may
be deemed paid by your services to the Company (if
approved by the Board of Directors or committee
administering the Plan). To the extent not yet vested,
your Restricted Shares may not be transferred, assigned,
pledged or hypothecated, whether by operation of law or
otherwise, nor may the Restricted Shares be made subject
to execution, attachment or similar process.
ISSUANCE AND VESTING The Company will issue your Restricted Shares in your
name as of the Grant Date.
Your right to the Shares under this Restricted Share
Agreement grant vests as to the total number of Shares
covered by this grant, as shown on the cover sheet, on
the Grant Date. If, however, you are restricted from
selling Shares on the Grant Date pursuant to the
Company's policy on xxxxxxx xxxxxxx, your Shares that
would have vested on that vesting date will vest on the
first date that is during a window period in which
Company insiders are not restricted from selling Shares.
Your right to the Shares under this Restricted Share
Agreement will become fully vested on your termination
of Services due to death or disability (or such other
conditions permitted by a written employment agreement
with the Company). No additional Shares will vest after
your Service has terminated for any reason.
FORFEITURE OF UNVESTED In the event that your Service terminates for any reason
SHARES other than death or disability, you will forfeit to the
Company all of the Shares subject to this grant that
have not yet vested (unless otherwise provided in your
employment agreement).
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ESCROW The certificates for the Restricted Shares shall be
deposited in escrow with the Secretary of the Company to
be held in accordance with the provisions of this
paragraph. Each deposited certificate shall be
accompanied by a duly executed Assignment Separate from
Certificate in the form attached hereto as EXHIBIT A.
The deposited certificates shall remain in escrow until
such time or times as the certificates are to be
released or otherwise surrendered for cancellation as
discussed below. Upon delivery of the certificates to
the Company, you shall be issued an instrument of
deposit acknowledging the number of Shares delivered in
escrow to the Secretary of the Company.
All regular cash dividends on the Shares (or other
securities at the time held in escrow) shall be paid
directly to you and shall not be held in escrow.
However, in the event of any dividend, split,
recapitalization or other change affecting the Company's
outstanding Shares as a class effected without receipt
of consideration or in the event of a split, a dividend
or a similar change in the Shares, any new, substituted
or additional securities or other property which is by
reason of such transaction distributed with respect to
the Shares shall be immediately delivered to the
Secretary of the Company to be held in escrow hereunder,
but only to the extent the Shares are at the time
subject to the escrow requirements hereof.
As your interest in the Shares vests, as described
above, the certificates for such vested Shares shall be
released from escrow and delivered to you, at your
request, within 30 days of their vesting.
WITHHOLDING TAXES You agree, as a condition of this grant, that you will
make acceptable arrangements to pay any withholding or
other taxes that may be due as a result of the vesting
of Shares acquired under this grant. In the event that
the Company determines that any federal, state, local or
foreign tax or withholding payment is required relating
to the vesting of Shares arising from this grant, the
Company shall have the right to require such payments
from you, or withhold such amounts from other payments
due to you from the Company or any Affiliate.
SECTION 83(b) Under Section 83 of the Internal Revenue Code of 1986,
ELECTION as amended (the "Code"), the difference between the
purchase price paid for the Shares and their fair market
value on the date any forfeiture restrictions applicable
to such Shares lapse will be reportable as ordinary
income at that time. For this purpose, "forfeiture
restrictions" include the forfeiture of unvested Shares
that is described above. You may elect to be taxed at
the time the Shares are acquired, rather than when such
Shares cease to be subject to such forfeiture
restrictions, by filing an election under Code Section
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83(b) with the Internal Revenue Service within thirty
(30) days after the Grant Date. You will have to make a
tax payment to the extent the Purchase Price is less
than the fair market value of the Shares on the Grant
Date. No tax payment will have to be made to the extent
the Purchase Price is at least equal to the fair market
value of the shares on the Grant Date. The form for
making this election is attached as EXHIBIT B hereto.
Failure to make this filing within the thirty (30) day
period will result in the recognition of ordinary income
by you (in the event the fair market value of the shares
as of the vesting date exceeds the purchase price) as
the forfeiture restrictions lapse.
YOU ACKNOWLEDGE THAT IT IS YOUR SOLE RESPONSIBILITY, AND
NOT THE COMPANY'S, TO FILE A TIMELY ELECTION UNDER CODE
SECTION 83(b), EVEN IF YOU REQUEST THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON YOUR BEHALF. YOU
ARE RELYING SOLELY ON YOUR OWN ADVISORS WITH RESPECT TO
THE DECISION AS TO WHETHER OR NOT TO FILE ANY CODE
SECTION 83(b) ELECTION.
RETENTION RIGHTS This Agreement does not give you the right to be
retained by the Company (or any parent, Subsidiaries or
Affiliates) in any capacity. The Company (and any
parent, Subsidiaries or Affiliates) reserves the right
to terminate your Service at any time and for any
reason.
SHAREHOLDER RIGHTS You have the right to vote the Restricted Shares and to
receive any dividends declared or paid on such Shares.
Any distributions you receive as a result of any split,
dividend, combination of Shares or other similar
transaction shall be deemed to be a part of the
Restricted Shares and subject to the same conditions and
restrictions applicable thereto. Except as described in
the Plan, no adjustments are made for dividends or other
rights if the applicable record date occurs before your
share certificate is issued.
ADJUSTMENTS In the event of a split, a dividend or a similar change
in the Shares, the number of Shares covered by this
grant may be adjusted (and rounded down to the nearest
whole number) pursuant to the Plan. Your Restricted
Shares shall be subject to the terms of the agreement of
merger, liquidation or reorganization in the event the
Company is subject to such corporate activity.
LEGENDS All certificates representing the Shares issued in
connection with this grant shall, where applicable, have
endorsed thereon the following legends:
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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
BLACKWATER MIDSTREAM CORP. 2008 INCENTIVE PLAN AND A
RESTRICTED STOCK AGREEMENT ENTERED INTO BETWEEN THE
REGISTERED OWNER OF SUCH SHARES AND BLACKWATER MIDSTREAM
CORP. A COPY OF THE PLAN AND A RESTRICTED STOCK
AGREEMENT ARE ON FILE IN THE CORPORATE OFFICES OF
BLACKWATER MIDSTREAM CORP. AND WILL BE FURNISHED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE
HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS
CERTIFICATE."
APPLICABLE LAW This Agreement will be interpreted and enforced under
the laws of the State of Nevada, other than any
conflicts or choice of law rule or principle that might
otherwise refer construction or interpretation of this
Agreement to the substantive law of another
jurisdiction.
THE PLAN The text of the Plan is incorporated in this Agreement
by reference. Certain capitalized terms used in this
Agreement are defined in the Plan, and have the meaning
set forth in the Plan.
This Agreement and the Plan constitute the entire
understanding between you and the Company regarding this
grant of Restricted Shares. Any prior agreements,
commitments or negotiations concerning this grant are
superseded.
DATA PRIVACY In order to administer the Plan, the Company may process
personal data about you. Such data includes, but is not
limited to, the information provided in this Agreement
and any changes thereto, other appropriate personal and
financial data about you such as home address and
business addresses and other contact information,
payroll information and any other information that might
be deemed appropriate by the Company to facilitate the
administration of the Plan.
By accepting this grant, you give explicit consent to
the Company to process any such personal data. You also
give explicit consent to the Company to transfer any
such personal data outside the country in which you work
or are employed, including, with respect to non-U.S.
resident Grantees, to the United States, to transferees
who shall include the Company and other persons who are
designated by the Company to administer the Plan.
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CONSENT TO ELECTRONIC The Company may choose to deliver certain statutory
materials relating to the Plan in electronic form. By
accepting this grant, you agree that the Company may
deliver the Plan prospectus and the Company's annual
report to you in an electronic format. If at any time
you would prefer to receive paper copies of these
documents, as you are entitled to, the Company would be
pleased to provide copies. Please contact Xxxxxxx X.
Xxxxx, Chief Executive Officer at (000) 000-0000 to
request paper copies of these documents.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
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EXHIBIT A
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, _____________ sells, assigns and transfers to
Blackwater Midstream Corp., a Nevada corporation (the "Company"), ____________
(__________) shares of common stock of the Company represented by Certificate
No. ___ and does hereby irrevocable constitute and appoint ______________ to
transfer the said shares on the books of the Company with full power of
substitution in the premises.
Dated:____________, 200__
___________________________________________
Print Name
___________________________________________
Signature
SPOUSE CONSENT (IF APPLICABLE)
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___________________ (Purchaser's spouse) indicates by the execution of
this Assignment his or her consent to be bound by the terms herein as to his or
her interests, whether as community property or otherwise, if any, in the shares
of common stock of the Company.
___________________________________________
Signature
INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
THE PURPOSE OF THIS ASSIGNMENT IS TO ENABLE THE COMPANY TO CAUSE THE FORFEITURE
OF YOUR UNVESTED SHARES AS SET FORTH IN THE AGREEMENT WITHOUT REQUIRING
ADDITIONAL SIGNATURES ON THE PART OF PURCHASER.
A-1
EXHIBIT B
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ELECTION UNDER SECTION 83(b) OF
THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code with respect to the property described below and supplies
the following information in accordance with the regulations promulgated
thereunder:
1. The name, address and social security number of the undersigned:
Name:
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Address:
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Social Security No.:
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2. Description of property with respect to which the election is being made:
_________ shares of common stock, par value $.001 per share, of Blackwater
Midstream Corp., a Nevada corporation (the "Company").
3. The date on which the property was transferred is ____________ __, 200__.
4. The taxable year to which this election relates is calendar year 200__.
5. Nature of restrictions to which the property is subject:
The shares of common stock are subject to the provisions of a Restricted Share
Agreement between the undersigned and the Company. The shares are subject to
forfeiture under the terms of the Agreement.
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6. The fair market value of the property at the time of transfer (determined
without regard to any lapse restriction) was $__________ per share, for a
total of $__________.
7. The amount paid by taxpayer for the property was $__________.
8. A copy of this statement has been furnished to the Company.
Dated: _____________, 200__
_______________________________________
Taxpayer's Signature
_______________________________________
Taxpayer's Printed Name
B-2
PROCEDURES FOR MAKING ELECTION
UNDER INTERNAL REVENUE CODE SECTION 83(b)
The following procedures MUST be followed with respect to the attached
form for making an election under Internal Revenue Code section 83(b) in order
for the election to be effective:(1)
1. You must file one copy of the completed election form with the IRS
Service Center where you file your federal income tax returns within 30 DAYS
after the Grant Date of your Restricted Shares.
2. At the same time you file the election form with the IRS, you must also
give a copy of the election form to the Secretary of the Company.
3. YOU MUST FILE ANOTHER COPY OF THE ELECTION FORM WITH YOUR FEDERAL
INCOME TAX RETURN (GENERALLY, FORM 1040) FOR THE TAXABLE YEAR IN WHICH THE
SHARES ARE TRANSFERRED TO YOU.
(1) Whether or not to make the election is your decision and may create tax
consequences for you. You are advised to consult your tax advisor if you are
unsure whether or not to make the election.
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