TXCO RESOURCES INC. RESTRICTED STOCK AWARD AGREEMENT (Not Involving Payment of Purchase Price)
Exhibit 10.2
[Form of Restricted Stock Award Agreement for Messrs. Xxxxx Xxxxxx and Xxxxxxx Xxxxxxx]
Restricted Stock Award
No. 2008-___
No. 2008-___
PART I
Recipient:
Award Date (Date of Transfer to, and Acceptance of Award by, Recipient):
Vesting Commencement Date: Xxxxx 00, 0000
Xxxxxxxxx Number of Restricted Shares: 40,000 Shares of Common Stock
Fair Market Value per Share on Award Date:$
Vesting Schedule:
|
13,333 Shares on March 18, 2009 | |
| 13,333 Shares on March 18, 2010 | ||
| 13,334 Shares on March 18, 2011 |
THE COMPANY RECOMMENDS THAT RECIPIENT CONSULT WITH HIS OR HER PERSONAL TAX ADVISOR
UPON THE GRANTING OF THIS AWARD TO IDENTIFY STEPS TO MINIMIZE THE RECIPIENT’S TAX
LIABILITY.
RECIPIENT IS SPECIFICALLY URGED TO CONSIDER THE BENEFITS HE OR SHE MIGHT DERIVE BY
MAKING A SO-CALLED SECTION 83(b) ELECTION WITHIN 30 DAYS OF THE AWARD DATE.
Part II of this Agreement is attached hereto and incorporated herein for all purposes.
EXECUTED to be effective as of the Award Date set forth above.
| TXCO RESOURCES INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| 000 X. Xxxxxxxx Xxxx., Xxxxx 000 | ||||
| Xxx Xxxxxxx, Xxxxx 00000 | ||||
| Attn: Chief Financial Officer or General Counsel | ||||
RECIPIENT: PLEASE COMPLETE AND SIGN THIS RESTRICTED STOCK AWARD AGREEMENT AND RETURN IT TO THE
ADDRESS SHOWN ABOVE.
| RECIPIENT: | ||
| Address: | ||
PART II
This Restricted Stock Award Agreement (this “Agreement”) is made and entered into by and
between TXCO Resources Inc., a Delaware corporation (the “Company”), and the recipient named on
Part I (the “Recipient”), as of the date set forth on Part I (the “Award Date”).
RECITALS:
The Company has adopted the TXCO Resources, Inc. 2005 Stock Incentive Plan, as amended and
restated (the “Plan”) to provide an incentive for key employees, consultants and directors of the
Company or its Subsidiaries to remain in the service of the Company or its Subsidiaries, to extend
to them the opportunity to acquire a proprietary interest in the Company so that they will apply
their best efforts for the benefit of the Company and its Subsidiaries, and to aid the Company in
attracting able persons to enter the service of the Company and its Subsidiaries;
The Board of Directors of the Company (or the Compensation Committee of the Company, if one
has been authorized to administer the Plan by the Company’s Board of Directors (the “Committee”)),
believes that the grant of the restricted stock award herein described to the Recipient is
consistent with the purposes for which the Plan was adopted;
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth in this
Agreement and for other good and valuable consideration, the Company and the Recipient agree as
follows:
1. Restricted Stock Award. The Company hereby grants to the Recipient the right (the
“Award”) to receive the aggregate number of shares set forth on Part I (such number being
subject to adjustment as provided herein) of Common Stock, $0.01 par value per share, of the
Company (the “Shares”) on the terms and conditions set forth in this Agreement. The Award granted
under this Agreement is intended to involve vesting restrictions (the “Restrictions”)
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constituting
a “significant risk of forfeiture” within the meaning of Section 83 of the Code and shall be so
construed; provided, however, that the Company makes no representation or warranty that such Award
does so qualify and the Company shall bear no liability in the event that such Award fails to so
qualify.
2. Purchase Price. The Recipient shall not be required to make any cash payment to
acquire full ownership of the Shares, but will be required to comply with the Vesting Schedule set
forth on Part I, and the vesting provisions set forth in paragraph 3 of this Agreement.
3. Vesting and Term of the Award.
(a) General. Subject to possible accelerated vesting under the terms of that certain
Settlement Agreement dated March 15, 2008 (the “Settlement Agreement”), between the Company, Third
Point LLC, the Recipient, et al., the Restrictions shall lapse in accordance with the provisions of
Part I. Shares which shall have vested shall be referred to as “Vested Shares.” Shares
which shall not have vested shall be referred to as “Unvested Shares.” Also subject to possible
accelerated vesting under the terms of the Settlement Agreement, shares may become Vested Shares in
accordance with Article IX of the Plan or Part I of this Agreement. In general, Unvested Shares
may become Vested Shares only if the Recipient has been continuously a director of the Company, a
Subsidiary or an Affiliated Entity from the Award Date to and including dates set forth in Part
I.
(b) Change in Control. In the event of a Change in Control as defined in the Plan,
the provisions of the second paragraph of Article IX of the Plan shall apply and cause Unvested
Shares to become Vested Shares upon the occurrence of the Change of Control, and the alternatives
specified in the first paragraph of Article IX (i.e., the assumption or substitution of new awards)
shall not be available.
4. Delivery of Shares. Share certificates evidencing Unvested Shares may be issued,
but held by the Company until such time as they become Vested Shares. No Share certificates shall
be physically delivered to the Recipient until (a) such Shares have become Vested Shares; (b) all
the applicable taxes required to be withheld have been paid or withheld in full; (c) approval of
any governmental authority required in connection with the issuance of Shares pursuant to this
Agreement has been received by the Company; and (d) if required by the Committee, the Recipient has
delivered to the Committee an Investment Letter in form and content satisfactory to the Company as
provided in paragraph 8 of this Agreement.
5. Termination of Employment.
(a) Death or Disability. If the Recipient ceases to be a director of the Company, a
Subsidiary or an Affiliated Entity due to the Recipient’s death or Disability (as defined in the
Plan), then any and all Shares awarded pursuant to this Agreement that are Unvested Shares as of
the date of the termination shall become Vested Shares as of the date of such termination.
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(b) Other Terminations; Special Circumstances. Subject to subparagraph (a) above, if
the Recipient’s director relationship is terminated under special circumstances as determined by
the Committee in accordance with Section 8.2 of the Plan, the Committee, in its sole discretion,
may waive the vesting requirements, all or in part, otherwise applicable to such Recipient’s
Unvested Shares. To the extent such vesting requirements are not waived by the Committee, all
Shares that are Unvested Shares as of such termination (together with any stock or cash dividends
attributable to such Unvested Shares), shall revert to the Company without any payment or other
consideration to Recipient, and the Recipient shall have no further right, title or interest in or
to such Unvested Shares, or to any stock or cash dividends attributable thereto.
6. Nontransferability. The Award granted by this Agreement is made solely to the
Recipient and is nontransferable. Unvested Shares acquired under this Agreement are transferable
by the Recipient only by will or pursuant to applicable laws of descent and distribution. The
Award and the Unvested Shares, and any rights and privileges in connection therewith, cannot be
transferred, assigned, pledged or hypothecated by the Recipient, or by any other person or persons,
in any way, whether by operation of law, or otherwise, and may not be subject to execution,
attachment, garnishment or similar process. In the event of any such occurrence, the Recipient’s
right to have any Unvested Shares vest, and thereby become Vested Shares, will immediately and
automatically terminate.
7. Adjustments. If there is any change in the capital structure of the Company
through merger, consolidation, reorganization, recapitalization, stock dividend, stock split,
combination of shares or similar event (a “Restructuring”), the rights of the Recipient to the
Shares shall be adjusted as provided in Article VII of the Plan. Nothing in this Agreement or in
the Plan shall affect in any way the right or power of the Company to make or authorize any
Restructuring.
8. Securities Act. The Company will not be required to issue or deliver any Share
certificates pursuant to this Award if, in the opinion of counsel for the Company, such issuance
would violate the Securities Act or any other applicable federal or state securities laws or
regulations. It is the Company’s intention that a registration statement under the Securities Act
on Form S-8 (or other applicable form) will be effective with respect to the Shares at the time
Unvested Shares become Vested Shares and are then delivered to the Recipient. However, if for any
reason such a registration statement is not in effect at such time, the Committee may require that
the Recipient, prior to the delivery of any such Shares pursuant to this Award, sign and deliver to
the Company a written statement (an “Investment Letter”) stating, as applicable, that (a)
the Recipient is purchasing the Shares for his own account and not with a view to, or for sale in
connection with, any distribution thereof, he has no present or contemplated agreement,
undertaking, arrangement, obligation, indebtedness or commitment providing for the disposition
thereof and he does not currently have any reason to anticipate a change in the foregoing; (b) the
Recipient understands, if correct, that the Shares have not been registered under the Securities
Act or any applicable state securities laws or regulations and, therefore, cannot be offered or
resold unless the Shares are so registered or an applicable exemption from registration is
available; and (c) the Recipient agrees, if correct, that the certificates representing the Shares
may bear a legend to the effect set forth in clause (b) above. The Investment Letter must be
in form and substance acceptable to the Committee in its sole discretion.
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9. Notice. All notices required or permitted under this Agreement must be in writing
and personally delivered or sent by mail and shall be deemed to be delivered on the date on which
actually received by the Company properly addressed to the person who is to receive it. Until
changed in accordance herewith, the Company and the Recipient specify their respective addresses as
set forth below:
| Company: | TXCO Resources Inc. | |||
| 000 X. Xxxxxxxx Xxxx., Xxxxx 000 | ||||
| Xxx Xxxxxxx, Xxxxx 00000 | ||||
| Attention: Chief Financial Officer | ||||
or General Counsel |
||||
| Recipient: | As indicated on Part I hereto. |
10. Information Confidential. As partial consideration for the granting of this
Award, the Recipient agrees that he will keep confidential all information and knowledge that he or
she has relating to the manner and amount of Recipient’s participation in the Plan; provided,
however, that such information may be disclosed as required by law and may be given in confidence
to the Recipient’s spouse, tax, legal and financial advisors, or a financial institution to the
extent that such information is necessary to obtain a loan.
11. Definitions; Copy of Plan. To the extent not specifically provided in this
Agreement or otherwise required by context, all capitalized terms used in this Agreement but not
defined herein shall have the same meanings ascribed to them in the Plan. By the execution of this
Agreement, the Recipient acknowledges that he has received and reviewed a copy of the Plan.
12. Administration; Application of Provisions of the Plan. This Agreement is subject
to the terms and conditions of the Plan. The Plan will be administered by the Board of Directors
and by the Committee in accordance with its terms. The Committee has sole and complete discretion
with respect to all matters reserved to it by the Board of Directors of the Company and by the
Plan, and decisions of the Board of Directors and of the Committee with respect to the Plan and
this Agreement shall be final and binding upon the Recipient. If a conflict between the terms and
conditions of this Agreement and the Plan exists, the provisions of the Plan shall control.
13. Arbitration. Any legal or equitable claims or disputes between Recipient and the
Company, including without limitation, those arising out of or in connection with the employment,
or the termination of employment, of Recipient by the Company (other than a suit for injunctive
relief) will be resolved exclusively by binding arbitration. This Agreement applies to the
following allegations, disputes, and claims for relief, but is not limited to those listed:
wrongful discharge under statutory law and common law; employment discrimination based on federal,
state, or local statute, ordinance, or governmental regulation; retaliatory discharge or other
action; compensation disputes; tortious conduct; contractual violations (although no contractual
relationship, other than at will employment and this Agreement and agreement to
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arbitrate, is
hereby created); ERISA violations; and other statutory and common law claims and disputes.
The arbitration proceedings shall be conducted in San Antonio, Texas in accordance with the
Employment Dispute Resolution Rules (“EDR Rules”) of the American Arbitration Association (“AAA”)
in effect at the time a demand for arbitration is made. Recipient is entitled to representation by
an attorney throughout the proceedings at Recipient’s own expense.
One arbitrator shall be used and shall be chosen by mutual agreement of the parties. If,
within 30 days after the Recipient notifies the Company of an arbitrable dispute, no arbitrator has
been chosen, an arbitrator shall be chosen from a list or lists of proposed arbitrators submitted
by the AAA pursuant to its EDR Rules, except that (a) the number of preemptory strikes shall not be
limited, and (b) if the parties fail to select an arbitrator from one or more lists, AAA shall not
have the power to appoint the arbitrator but shall continue to submit lists until the arbitrator
has
been selected. The arbitrator shall coordinate, and limit as appropriate, all pre-arbitral
discovery, which shall include document production, information requests, and depositions. The
arbitrator shall issue a written decision and award stating the reasons therefore. The decision
and award shall be final and binding on both parties, their heirs, executors, administrators,
successors, and assigns. The costs and expenses of the arbitration shall be borne evenly by the
parties.
14. No Obligation to Exercise. The Recipient shall have no obligation to accept any
Shares pursuant to this Agreement.
15. Governing Law; Construction. This Agreement shall be governed by the laws of the
State of Texas without regard to choice of law and conflicts of law principles. Titles and
headings are for ease of reference only and shall not be considered in construing this Agreement.
Pronouns shall be deemed to include the masculine, feminine, neuter, singular and plural as the
context may require. References to paragraphs and exhibits are to paragraphs and Exhibits of this
Agreement unless otherwise indicated. All such Exhibits are incorporated in this Agreement by
reference and are a part hereof.
16. Amendments. This Agreement may be amended only by a written agreement executed by
the Company and the Recipient.
17. Right to Reacquire. The receipt by Recipient of Shares pursuant to the Award
shall be subject to the following terms and conditions:
(a) Restriction on Transfer. Other than testamentary transfers or transfers pursuant
to the laws of descent and distribution, Recipient shall not sell, exchange, transfer, assign,
encumber, or otherwise dispose of any of the Unvested Shares to any person, corporation,
partnership, joint venture, trust or other entity without the prior written consent of the Board of
Directors of the Company or the Committee. Any transferee shall take the Unvested Shares subject
to all applicable terms and provisions of this Agreement, including this paragraph, and shall, as a
condition to the transfer of the Unvested Shares, sign a Joinder Agreement attached as Exhibit
A agreeing to be bound by all applicable provisions of this Agreement.
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(b) Definition of Owner. For purposes of paragraph 17 of this Agreement, the term
"Owner” shall include the Recipient and all subsequent holders of the Unvested Shares who derive
their chain of ownership through a permitted transfer from the Recipient in accordance with
paragraph 17(a).
(c) Agreement Applicable to Community Interests. Any right or interest of a spouse of
an Owner in Unvested Shares, whether such right or interest is created by law (including community
property laws) or otherwise, shall for all purposes hereof be included in, deemed a part of and
bound by the same terms hereof as the Unvested Shares to which such right or interest relates or
appertains, and all provisions of this Agreement applicable to Unvested Shares owned by an Owner
shall be applicable to any right or interest which the spouse of such Owner may have or be entitled
to have therein.
(d) Purchase of Spouse’s Interest in Unvested Shares. In the event of the death of an
Owner’s spouse, or the divorce of an Owner and his or her spouse, such Owner shall have the right
to purchase all or any part of the Unvested Shares (and any interest therein) to which such spouse
(or the estate of such spouse) is or may be entitled at a purchase price of $100 for all such
Unvested Shares. Such purchase shall be effected on the following terms and conditions:
(i) The Owner’s right to purchase his or her spouse’s interest in the Shares shall continue
for a period of 60 days from the date of entry of the divorce decree or from the date of
qualification of the personal representative of the spouse in the event of death, as the case may
be, and shall be considered exercised by such Owner on the date on which written notice of such
exercise has been delivered or mailed, properly addressed, to such spouse or the personal
representative of such spouse.
(ii) If the Owner shall fail to exercise his or her right in its entirety in the manner and
time prescribed, then the spouse or the personal representative of the spouse, as the case may be,
shall so notify the Company in writing, which notice shall state the address of
such spouse or personal representative and the number of Unvested Shares (or interest in
Unvested Shares) owned by such spouse or the estate of such spouse. Thereupon the Company shall
have the right to purchase all Unvested Shares (and interests therein) not purchased by such Owner
for a period of 60 days following the receipt by the Company of such notice at a purchase price of
$100 for all such Unvested Shares.
(iii) The purchase right set forth in this paragraph 17(d) shall terminate with respect to any
Shares for which the purchase right is not timely exercised under paragraphs 17(d)(i) and (ii).
18. Termination. The Company may terminate the Plan at any time; however, such
termination will not modify the terms and conditions of the Award made under this Agreement without
the Recipient’s consent.
19. No Rights as a Shareholder. Recipient shall have the full right to vote and to
receive all dividends and other distributions paid or made with
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respect to Vested Shares. With
respect to Unvested Shares, (i) the voting power shall be exercised only in accordance with the
determination of the Board of Directors of the Company, and such Unvested Shares cannot be voted by
the Owner in the absence of such determination; (ii) stock dividends and other stock adjustments
shall be treated as provided in Article VII of the Plan; and (iii) cash dividends shall be held by
the Company and paid to the Owner at such time as Unvested Shares may become Vested Shares;
however, if Unvested Shares revert to the Company as provided in this Agreement, then any such cash
dividends shall also become the property of the Company.
20. Severability. If any provision of this Agreement is held by final judgment of a
court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or
unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of
this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision
shall be deemed to be automatically modified, and, as so modified, to be included in this
Agreement, such modification being made to the minimum extent necessary to render the provision
valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified
provision concerns all or a portion of the essential consideration to be delivered under this
Agreement by one party to the other, the remaining provisions of this Agreement shall also be
modified to the extent necessary to equitably adjust the parties’ respective rights and obligations
hereunder.
21. Entire Agreement. Except as provided below, this Agreement, including the
exhibits and schedules attached hereto, if any (together with the provisions of the Plan), contains
the entire agreement of the parties with respect to the subject matters hereto, and supersedes all
prior agreements between them, whether oral or written, of any nature whatsoever with respect to
the subject matter hereof. However, this Agreement does not supersede the Company’s rights under
any agreement between Recipient and the Company that (i) protects the Company’s proprietary
information or intellectual property, or (ii) prohibits Recipient from competing with the Company
or soliciting the Company’s customers, suppliers or employees; rather all such rights of the
Company under any such agreements shall be in addition to the rights granted herein. In addition,
if the Company and Recipient have entered into a separate agreement concerning arbitration of
claims, the Company shall elect, within 10 days of notice from Recipient of a claim to be
arbitrated, whether any such arbitration shall be governed by the provisions of this Agreement or
of such separate agreement.
* * * * *
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SPOUSAL CONSENT
I, spouse of , have read and am aware of, understand and fully consent and agree to the
provisions of the Agreement attached hereto and its binding effect upon any interest, community or
otherwise, I may own now or hereafter in any Shares, and agree that the termination of my marriage
to , for any reason shall not have the effect of removing any Shares otherwise subject to the
Agreement from the coverage thereof. I hereby evidence such awareness, understanding, consent and
agreement by joining in the Agreement and by executing this Agreement below.
| Signature of Spouse |
||||
| Printed Name: | ||||
| Address: | ||||
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EXHIBIT A
JOINDER AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned, by execution of this Joinder Agreement, agrees to become a party to
the Restricted Stock Award Agreement dated as of , 2008, by and between TXCO
Resources Inc., a Delaware corporation (the “Company”), and , Recipient thereunder (the
“Agreement”), a copy of which is attached hereto as Exhibit A to the extent and as provided
by this Joinder Agreement. The undersigned acknowledges that by his execution of this Joinder
Agreement he will become a party to the Agreement for purposes of paragraph 17 (and only with
respect to such paragraph), such paragraph providing for the Company’s right with respect to
Unvested Shares issued pursuant to the Agreement. The undersigned represents and warrants that he
has read and consents to, agrees to be bound by, the provisions of paragraph 17 of the Agreement.
EXECUTED to be effective the day of , 2008.
| Name: | ||||
SPOUSAL CONSENT TO JOINDER AGREEMENT
I, spouse of , have read and am aware of, understand and fully consent and agree
to the provisions of the Agreement attached hereto and its binding effect upon any interest,
community or otherwise, I may own now or hereafter in any Shares, and agree that the termination of
my marriage to , for any reason shall not have the effect of removing any Shares
otherwise subject to the Agreement from the coverage thereof. I hereby evidence such awareness,
understanding, consent and agreement by joining in the Agreement and by executing this Joinder
Agreement below.
| Signature of Spouse |
||||
| Printed Name: | ||||
| Address: | ||||
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