Exhibit 10.1
WARRIOR ENERGY SERVICES CORPORATION
RESTRICTED STOCK UNIT AWARD AGREEMENT
This RESTRICTED STOCK UNIT AWARD AGREEMENT (the "Agreement") is made this
28th day of July, 2006, by and between Warrior Energy Services Corporation, a
Delaware corporation (the "Company") and Xxxxxx Xxxxxx XxXxxxx (the
"Participant").
1. Award. The Company hereby grants to Participant an award of 96,682
restricted stock units ("RSUs"), each RSU representing the right to receive one
share of common stock, par value $0.0005 per share (the "Common Stock"), of the
Company according to the terms and conditions set forth herein and in Warrior
Energy Services Corporation 2000 Stock Incentive Plan (the "Plan"). The RSUs are
granted under Article 4 of the Plan. A copy of the Plan will be furnished upon
request of Participant.
2. Vesting; Forfeiture; Early Vesting.
(a) Except as otherwise provided in this Agreement, the RSUs shall vest in
accordance with the following schedule:
NUMBER OF RSUs
ON EACH OF VESTED
THE FOLLOWING DATES ------------------
January 1, 2007 and 2009 24,170
January 1, 2008 and 2010 24,171
(b) If Participant ceases to be an employee of the Company or any
Affiliate (as defined in the Plan), whether voluntary or involuntary and whether
or not terminated for cause, prior to vesting of the RSUs pursuant to Section
2(a) hereof, all of Participant's rights to all of the unvested RSUs shall be
immediately and irrevocably forfeited, except that (i) if Participant ceases to
be an employee by reason of normal retirement at age 65 or older, early
retirement with the consent of the Compensation Committee (the "Committee") of
the Board of Directors of the Company or Disability (as defined below) prior to
the vesting of RSUs under Section 2(a) hereof or (ii) if Participant ceases to
be an employee by reason of death prior to the vesting of RSUs under Section
2(a) hereof, all RSUs granted hereunder shall vest as of such termination of
employment. For purposes of this Agreement, "Disability" has the meaning given
to such term in Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended (the "Code").
3. Restrictions on Transfer. The RSUs shall not be transferable other than
by will or by the laws of descent and distribution. Each right under this
Agreement shall be exercisable during Participant's lifetime only by Participant
or, if permissible under applicable law, by Participant's legal representative.
None of the RSUs or the shares of Common Stock issuable upon vesting thereof
(the "Shares") may be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of, and any purported sale, assignment, transfer, pledge,
hypothecation or other disposition shall be void and unenforceable against the
Company, and no attempt to transfer the RSUs or the Shares, whether voluntarily
or involuntarily, by operation of law or otherwise, shall vest the purported
transferee with any interest or right in or with respect to the RSUs or the
Shares. Notwithstanding the foregoing, Participant may, in the manner
established pursuant to the Plan, designate a beneficiary or beneficiaries to
exercise the rights of Participant and receive any property distributable with
respect to the RSUs upon the death of Participant, and Company Common Stock and
any other property with respect to the RSUs upon the death of Participant shall
be transferable to such beneficiary or beneficiaries or pursuant to the person
or person entitled thereto by the laws of descent and distribution, and none of
the limitations of the preceding sentence shall in such event apply to such
Company Common Stock or other property.
4. Adjustments. If any RSUs vest subsequent to any change in the number or
character of the Common Stock of the Company (through any stock dividend or
other distribution, recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of shares, or otherwise), Participant shall then receive
upon such vesting the number and type of securities or other consideration which
Participant would have received if such RSUs had vested prior to the event
changing the number or character of the outstanding Common Stock.
5. Change in Control. Upon a Change in Control of the Company, any
unvested RSUs granted to Participant pursuant to this Agreement shall
immediately vest without any further act or requirement of Participant. Change
in Control shall mean a change in ownership or control of the Company effected
through any of the following transactions:
(i) a merger, consolidation or reorganization approved by the
Company's stockholders, unless securities representing more than fifty
percent (50%) of the total combined voting power of the voting
securities of the successor corporation are immediately thereafter
beneficially owned, directly or indirectly and in substantially the
same proportion, by the persons who beneficially owned the Company's
outstanding voting securities immediately prior to such transaction.
(ii) any stockholder-approved transfer or other disposition of
all or substantially all of the Company's assets, or
(iii) the acquisition, directly or indirectly by any person or
related group of persons (other than the Company or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Company), of beneficial ownership (within the meaning
of Rule 13d-3 of the 0000 Xxx) of securities possessing more than fifty
percent (50%) of the total combined voting power of the Company's
outstanding securities pursuant to a tender or exchange offer made
directly to the Company's stockholders which the Board recommends such
stockholders accept.
6. Miscellaneous.
(a) Issuance of Shares. No stock certificates shall be issued to
Participant prior to the date on which the RSUs vest in accordance with Section
2 hereof. After such date, and following payment of the applicable withholding
taxes pursuant to Section 6(b) hereof, the Company shall promptly cause to be
issued a certificate or certificates, registered in the name of Participant or
in the name of Participant's legal representatives, beneficiaries or heirs, as
the case may be, evidencing such vested whole Shares (less any shares withheld
to pay withholding taxes) and shall cause such certificate or certificates to be
delivered to Participant or Participant's legal representatives, beneficiaries
or heirs, as the case may be. The value of any fractional Shares shall be paid
in cash at the time certificates evidencing the Shares are delivered to
Participant.
(b) Income Tax Matters.
(i) In order to comply with all applicable federal or state income
tax laws or regulations, the Company may take such action as it deems
appropriate to ensure that all applicable federal or state payroll,
withholding, income or other taxes, which are the sole and absolute
responsibility of Participant, are withheld or collected from Participant.
(ii) In accordance with any applicable terms of the Plan, and such
rules as may be adopted under the Plan, Participant may elect to satisfy
Participant's federal and state income tax withholding obligations arising
from the receipt of, or the lapse of restrictions relating to, the Shares,
by (i) delivering cash, check (bank check, certified check or personal
check) or money order payable to the Company, (ii) having the Company
withhold a portion of the Shares otherwise to be delivered having a Fair
Market Value (as defined in the Plan) equal to the amount of such taxes,
or (iii) delivering to the Company shares of Common Stock already owned by
Participant having a Fair Market Value equal to the amount of such taxes.
Any such shares already owned by Participant shall have been owned by
Participant for no less than six months prior to the date delivered to the
Company if such shares were acquired upon the exercise of an option or
upon the vesting of restricted stock units or other restricted stock. The
Company will not deliver any fractional Shares but will pay, in lieu
thereof, the Fair Market Value of such fractional Shares. Participant's
election must be made on or before the date that the amount of tax to be
withheld is determined.
(c) Plan Provisions Control. In the event that any provision of this
Agreement conflicts with or is inconsistent in any respect with the terms of the
Plan, the terms of the Plan shall control. Any term not otherwise defined in
this Agreement shall have the meaning ascribed to it in the Plan.
(d) Rationale for Grant. The RSUs granted pursuant to this Agreement is
intended to offer Participant an incentive to put forth maximum efforts in
future services for the success of the Company's business. The RSUs are not
intended to compensate Participant for past services.
(e) No Rights of Stockholders. Neither Participant, Participant's legal
representative nor a permissible assignee of this award shall have any of the
rights and privileges of a stockholder of the Company with respect to the
Shares, unless and until the rights of Participant, Participant's legal
representative or such permissible assignee with respect to such Shares have
vested in accordance with the terms hereof.
(f) No Right to Employment. The issuance of the RSUs or the Shares shall
not be construed as giving Participant the right to be retained in the employ of
the Company or an Affiliate, nor will it affect in any way the right of the
Company or an Affiliate to terminate such employment at any time, with or
without cause, subject to the terms of any agreements of employment between the
Company and Participant. In addition, the Company or an Affiliate may at any
time dismiss Participant from employment free from any liability or any claim
under the Plan or this Agreement. Nothing in this Agreement shall confer on any
person any legal or equitable right against the Company or any Affiliate,
directly or indirectly, or give rise to any cause of action at law or in equity
against the Company or an Affiliate. The Award granted hereunder shall not form
any part of the wages or salary of Participant for purposes of severance pay or
termination indemnities, irrespective of the reason for termination of
employment. Under no circumstances shall any person ceasing to be an employee of
the Company or any Affiliate be entitled to any compensation for any loss of any
right or benefit under this Agreement or Plan which such employee might
otherwise have enjoyed but for termination of employment, whether such
compensation is claimed by way of damages for wrongful or unfair dismissal,
breach of contract or otherwise. By participating in the Plan, Participant shall
be deemed to have accepted all the conditions of the Plan and this Agreement and
the terms and conditions of any rules and regulations adopted by the Committee
and shall be fully bound thereby.
(g) Governing Law. The validity, construction and effect of the Plan and
this Agreement, and any rules and regulations relating to the Plan and this
Agreement, shall be determined in accordance with the internal laws, and not the
law of conflicts, of the State of Delaware. Participant hereby submits to the
nonexclusive jurisdiction and venue of the federal or state courts of Delaware
to resolve any and all issues that may arise out of or relate to the Plan or
this Agreement.
(h) Securities Matters. The Company shall not be required to deliver
Shares until the requirements of any federal or state securities or other laws,
rules or regulations (including the rules of any securities exchange) as may be
determined by the Company to be applicable are satisfied.
(i) Severability. If any provision of this Agreement is or becomes or is
deemed to be invalid, illegal or unenforceable in any jurisdiction or would
disqualify this Agreement under any law deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to applicable laws, or
if it cannot be so construed or deemed amended without, in the determination of
the Committee, materially altering the purpose or intent of the Plan or this
Agreement, such provision shall be stricken as to such jurisdiction or this
Agreement, and the remainder of this Agreement shall remain in full force and
effect.
(j) No Trust or Fund Created. Participant shall have no right, title, or
interest whatsoever in or to any investments that the Company, its Subsidiaries,
and/or its Affiliates may make to aid it in meeting its obligations under the
Plan. Neither the Plan nor this Agreement shall create or be construed to create
a trust or separate fund of any kind or a fiduciary relationship between the
Company or any Affiliate and Participant or any other person.
(k) Headings. Headings are given to the Sections and subsections of this
Agreement solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of this Agreement or any provision thereof.
IN WITNESS WHEREOF, the Company and Participant have executed this
Agreement on the date set forth in the first paragraph.
Warrior Energy Services Corporation
By:
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Name: Xxxxxxx Xxxxxxx
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Title: President
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PARTICIPANT
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Name: Xxxxxx Xxxxxx XxXxxxx
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