Ethanex Energy, Inc. Omnibus Equity Incentive Plan Restricted Stock Agreement
Exhibit
10.4
Omnibus
Equity Incentive Plan
This
Restricted Stock Agreement (the “Agreement”) is entered into effective as of the
date of grant set forth below (the “Date of Grant”) by and between ETHANEX
ENERGY, INC. (the “Company”) and the participant named below (the
“Participant”). Capitalized terms not defined herein shall have the meaning
ascribed to them in the Company’s Omnibus Equity Incentive Plan (the “Plan”).
| Participant: | Xxxxx X. XxXxxxxxxx |
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Address:
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0000 Xxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
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| Total Restricted Shares: | 1,000,000 |
| Date of Grant: | December 1, 2006 |
1. GRANT
OF RESTRICTED STOCK.
The
Company hereby grants to Participant shares of Restricted Stock in the amount
set forth above (the “Restricted Shares”), subject to all of the terms and
conditions of this Agreement and the Plan. The Company shall retain custody
of
the Restricted Shares during the restriction period.
2. RESTRICTION
PERIOD.
(a) Provided
Participant continues to be employed by the Company, the Restricted Shares
shall
become vested as follows:
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(i)
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The
Restricted Shares shall not vest until April 9, 2007.
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| (ii) |
On
April 9, 2007, 25% of the Restricted Shares shall
vest.
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| (iii) |
On
the last day of each month beginning May 31, 2007, an additional
2.5% of
the Restricted Shares shall vest (e.g., on May 31, 2007 a total of
27.5%
Restricted Shares shall be vested, on June 30, 2007 a total of 30%
of the
Restricted Shares shall be vested, etc.).
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| (iv) |
Notwithstanding
the foregoing, the Restricted Shares shall become fully vested upon
the
Participant’s termination of employment: (i) by the Participant for Good
Reason (as defined in the Participant’s Employment Agreement, dated on or
around October 9, 2006 (the “Employment Agreement”)); (ii) by the Company
for reasons other than for Cause (as defined in the Employment Agreement);
(iii) in connection with a Change in Control (as defined in the
Employment Agreement); or (iv) upon death or Disability (as defined
in the
Employment Agreement). (Whether a termination occurs in connection
with a
Change in Control will be determined by the Committee in its sole
discretion.)
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| (v) |
If
application of the vesting percentage causes a fractional share,
such
share shall be rounded down to the nearest whole share.
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(b) Restricted
Shares that are vested pursuant to the schedule set forth in Section 2 are
“Vested Shares.” Restricted Shares that are not vested pursuant to the schedule
set forth in Section 2 are “Unvested Restricted Shares.”
3. TERMINATION.
If
Participant’s employment with the Company is terminated (i) by the Participant
for any reason other than Good Reason or (ii) by the Company for Cause, then
all
Unvested Restricted Shares or any right or claim to such shares shall be
immediately forfeited as of the termination date.
4. NO
OBLIGATION TO EMPLOY.
Nothing
in the Plan or this Agreement shall confer on Participant any right to continue
in the employ of, or other relationship with the Company or limit in any way
the
right of the Company to terminate Participant’s employment or other relationship
at any time, with or without Cause.
5. TAX
WITHHOLDING.
Prior
to
the delivery of Vested Shares to the Participant, the Participant shall pay
or
provide for any applicable withholding obligations of the Company. The
Participant may provide for payment of withholding taxes by requesting that
the
Company retain the minimum number of Vested Shares with a Fair Market Value
on
such date equal to the minimum amount of taxes required to be withheld. In
such
case, the Company shall issue the net number of Vested Shares to the Participant
by deducting the Vested Shares retained from the Vested Shares issuable.
6. COMPLIANCE
WITH LAWS AND REGULATIONS.
(a) The
grant
of Restricted Shares and the issuance and transfer of Restricted Shares shall
be
subject to compliance by the Company and Participant with all applicable
requirements of applicable securities laws. If at any time the Committee
determines that issuing or delivering Restricted Shares would violate applicable
securities laws, the Company will not be required to issue or deliver such
shares. The Committee may declare any provision of this Agreement or action
of
its own null and void, if it determines the provision or action fails to comply
with the short-swing trading rules. As a condition to issuing or delivering
any
Restricted Shares, the Company may require the Participant to make written
representations it deems necessary or desirable to comply with applicable
securities laws.
(b) No
person
who acquires Restricted Shares under this Agreement may sell the Restricted
Shares, unless the offer and sale are made pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
that is current and includes the Restricted Shares to be sold, or an exemption
from the registration requirements of the Securities Act.
7. NONTRANSFERABILITY
OF RESTRICTED SHARES.
The
Restricted Shares may not be transferred in any manner other than by will or
by
the laws of descent and distribution, unless and until the (i) restrictions
lapse, (ii) Vested Shares are delivered to the Participant, and (iii) either
(A)
the Fair Market Value of the Common Stock beneficially owned by the Participant
following the sale or disposition would equal or exceed four (4) times the
Participant’s then current base salary or (B) the Board consents to the sale or
disposition of such Vested Shares. The terms of this Agreement shall be binding
upon the executors, administrators, successors and assigns of Participant.
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8. PRIVILEGES
OF STOCK OWNERSHIP.
Participant
shall, subject to the restrictions set forth in sections 6 and 7 above, have
all
the rights of a stockholder with respect to the Restricted Shares, including,
but not limited to, the right to vote such Restricted Shares and the right
to
receive all dividends and other distributions paid thereon. Certificates
representing the Restricted Shares shall bear a legend referring to the
restrictions set forth in the Plan and this Agreement. Any dividends or other
distributions on the Restricted Shares shall be paid no later than the end
of
the calendar year in which the dividends or other distributions are paid to
stockholders of Common Stock or, if later, the fifteenth day of the third month
following the date on which the dividends or other distributions are paid to
such stockholders.
9. INTERPRETATION.
Any
dispute regarding the interpretation of this Agreement shall be submitted by
Participant or the Company to the Committee for review. The resolution of such
a
dispute by the Committee shall be final and binding on the Company and
Participant.
10. ENTIRE
AGREEMENT.
The
Plan
is incorporated herein by reference. This Agreement and the Plan constitute
the
entire agreement and understanding of the parties with respect to the subject
matter of this Agreement, and supersede all prior understandings and agreements,
whether oral or written, between or among the parties hereto with respect to
the
specific subject matter hereof.
11. NOTICES.
Any
and
all notices required or permitted to be given to a party pursuant to the
provisions of this Agreement shall be in writing and shall be effective and
deemed to provide such party sufficient notice under this Agreement on the
earliest of the following:
(a)
at
the
time of personal delivery, if delivery is in person;
(b)
2
business days after deposit with an express overnight courier;
(c)
3
business days after deposit by regular mail.
All
notices not delivered personally shall be sent with postage and/or other charges
prepaid and properly addressed to the party to be notified at the address set
forth below on the signature lines of this Agreement, or at such other address
as such party may designate by one of the indicated means of notice herein
to
the other parties hereto. Notices to the Company shall be marked “Attention:
Chief Financial Officer.”
12. SUCCESSORS
AND ASSIGNS.
The
Company may assign any of its rights under this Agreement. No other party to
this Agreement may assign, whether voluntarily or by operation of law, any
of
its rights and obligations under this Agreement, except as expressly permitted
herein or under the Plan or with the prior written consent of the Company.
This
Agreement shall be binding upon and inure to the benefit of the successors
and
assigns of the Company. Subject to the restrictions on transfer set forth
herein, this Agreement shall be binding upon Participant and Participant’s
heirs, executors, administrators, legal representatives, successors and assigns.
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13. NO
LIMITATION ON RIGHTS OF THE COMPANY.
The
grant of the Restricted Shares does not and will not in any way affect the
right
or power of the Company to make adjustments, reclassifications or changes in
its
capital or business structure, or to merge, consolidate, dissolve, liquidate,
sell or transfer all or any part of its business or assets.
14. PLAN
DOCUMENT CONTROLS.
The
rights granted under this Agreement are in all respects subject to the
provisions set forth in the Plan to the same extent and with the same effect
as
if set forth fully in this Agreement. If the terms of this Agreement conflict
with the terms of the Plan document, the Plan document will
control.
15. GOVERNING
LAW.
This
Agreement shall be governed by and construed in accordance with the laws of
the
state of New York.
16. ACCEPTANCE.
The
Participant hereby acknowledges receipt of a copy of the Plan and this
Agreement. Participant has read and understands the terms and provisions
thereof, and accepts the Restricted Shares subject to all the terms and
conditions of the Plan and this Agreement.
17. FURTHER
ASSURANCES.
The
parties agree to execute such further documents and instruments and to take
such
further actions as may be reasonably necessary to carry out the purposes and
intent of this Agreement.
18. TITLES
AND HEADINGS.
The
titles, captions and headings of this Agreement are included for ease of
reference only and shall be disregarded in interpreting or construing this
Agreement. Unless otherwise specifically stated, all references herein to
“sections” and “exhibits” shall mean “sections” and “exhibits” to this
Agreement.
19. COUNTERPARTS.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed an original, and all of which together
shall constitute one and the same agreement.
20. CODE
SECTION 409A NOT TO APPLY.
It
is the
Company’s intention that Code Section 409A shall not apply to the Restricted
Shares granted hereunder. There shall be no deferral of compensation with
respect to the Restricted Shares other than the deferral of recognition of
income until the vesting of the Restricted Shares under Section 1.83-7 of the
Income Tax Regulations.
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21. SEVERABILITY.
If
any
provision of this Agreement is determined by any court or arbitrator of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
such provision shall be enforced to the maximum extent possible given the intent
of the parties hereto. If such clause or provision cannot be so enforced, such
provision shall be stricken from this Agreement and the remainder of this
Agreement shall be enforced as if such invalid, illegal or unenforceable clause
or provision had (to the extent not enforceable) never been contained in this
Agreement. Notwithstanding the forgoing, if the value of this Agreement based
upon the substantial benefit of the bargain for any party is materially
impaired, which determination as made by the presiding court or arbitrator
of
competent jurisdiction shall be binding.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed in
duplicate by its duly authorized representative and Participant has executed
this Agreement in duplicate, effective as of the Date of Grant.
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By
/s/
Xxxxxx X. Xxxxx, III
Xxxxxx
X. Xxxxx, III
President
and Chief Executive Officer
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PARTICIPANT:
/s/
Xxxxx X. XxXxxxxxxx
Xxxxx
X. XxXxxxxxxx
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