DAYBREAK OIL AND GAS, INC. RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit
4.7
DAYBREAK
OIL AND GAS, INC.
2009
RESTRICTED STOCK AND RESTRICTED UNIT PLAN
This
Restricted Stock Unit 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 restricted stock units 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 stock units provided for herein (the
“Restricted Stock Unit
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:
|
1.
|
Grant
of Restricted Stock Unit Award. Pursuant to
Section 8 of the Plan, the Company
hereby grants to the Grantee on the Grant Date, in the aggregate, _____
Restricted Stock Units on the terms and conditions set forth in this
Agreement and as otherwise provided in the Plan. Such
Restricted Stock Units shall be credited to a separate account maintained
for the Grantee on the books of the Company (the “Account”). On
any given date, the value of each Restricted Stock Unit comprising the
Restricted Stock Unit Award shall equal the Fair Market Value of one share
of Common Stock. The Award shall vest and settle in accordance
with Section 3 hereof.
|
|
2.
|
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.
|
|
3.
|
Terms
and Conditions.
|
|
(a)
|
Vesting
and Settlement. Except as otherwise provided in the Plan
and this Agreement, and contingent upon the Grantee’s Continuous Service,
twenty-five percent (25%) of the Restricted Stock Unit Award shall vest
and become non-forfeitable on each of the first four anniversaries of the
Grant Date (each such date, a “Vesting
Date”). Upon the expiration of the restrictions (and in
no event later than March 15 of the year following the year in which the
Restricted Stock Units vest), the Company shall (i) issue and deliver to
the Grantee one share of Common Stock for each Restricted Stock Unit
subject to the Restricted Stock Unit Award (the “RSU Shares”)
(and, upon such settlement, the Restricted Stock Units shall cease to be
credited to the Account) and (ii) enter the Grantee’s name as a
stockholder of record with respect to the RSU Shares on the books of the
Company.
|
1
|
(b)
|
Restrictions. The
Restricted Stock Unit Award granted hereunder may not be sold, pledged or
otherwise transferred (other than by will or the laws of descent and
distribution) and may not be subject to lien, garnishment, attachment or
other legal process. The Grantee acknowledges and agrees that,
with respect to each Restricted Stock Unit credited to his/her Account,
he/she has no voting rights with respect to the Company unless and until
each such Restricted Stock Unit is settled in RSU Shares pursuant to
Section 3(a) hereof. If the Grantee’s Continuous Service
terminates at any time prior to a Vesting Date, the unvested Restricted
Stock Units shall automatically be forfeited upon such termination of
Continuous Service, unless otherwise provided
herein. Notwithstanding the foregoing, pursuant to Section 4(b)
of the Plan, the Committee may accelerate the vesting of the Restricted
Stock Unit Award.
|
|
4.
|
Change
in Control. At a time determined by the Committee prior
to a Change in Control, all unvested Restricted Stock Units shall
automatically become vested and shall be settled in accordance with
Section 3(a).
|
|
5.
|
Tax
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 the
Restricted Stock Unit Award or from any compensation or other amounts
owing to the Grantee, the amount (in cash, Common Stock, other securities
or other property) of any required withholding taxes in respect of the
Restricted Stock Unit Award, or any payment or transfer under this
Restricted Stock Unit 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 the 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
Unit 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).
|
|
6.
|
Rights
as Stockholder. Upon and following the Vesting Date, the
Grantee shall be the record owner of the RSU Shares, if any, issued and
delivered pursuant to such Vesting Date unless and until such shares are
sold or otherwise disposed of, and as record owner shall be entitled to
all rights of a common stockholder of the Company including, without
limitation, voting rights, if any, with respect to the
shares. Prior to each Vesting Date, the Grantee shall not be
deemed for any purpose to be the owner of shares of Common Stock subject
to the Restricted Stock Unit Award.
|
2
|
7.
|
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.
|
|
8.
|
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.
|
|
9.
|
General
Assets. All amounts credited to the Account under this
Agreement shall continue for all purposes to be part of the general assets
of the Company. The Grantee’s interest in the Account shall
make the Grantee only a general, unsecured creditor of the
Company.
|
|
10.
|
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:
|
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.
|
11.
|
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.
|
|
12.
|
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.
|
3
|
13.
|
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.
|
|
14.
|
Amendment
of Restricted Stock Unit 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 Unit Award; provided, however, the
Grantee’s rights under this Restricted Stock Unit Award shall not be
materially and adversely affected by any such amendment without the
Grantee’s consent.
|
|
15.
|
Adjustments. This
Restricted Stock Unit Award is subject to adjustment pursuant to Section
12 of the Plan.
|
|
16.
|
Governing
Law. This
Agreement shall be governed by the laws of the State of Washington without
regard to conflict of laws
principles.
|
|
17.
|
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.
|
|
18.
|
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.
|
|
19.
|
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.
|
|
20.
|
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.
|
[SIGNATURE
PAGE FOLLOWS]
4
IN
WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date
set forth below.
| DAYBREAK OIL AND GAS, INC. | |||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
| GRANTEE | |||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
5
