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8-K - 8-K - Independence Contract Drilling, Inc. | icd8-k02082018ltipawardagr.htm |
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INDEPENDENCE CONTRACT DRILLING, INC.
RESTRICTED STOCK UNIT AWARD AGREEMENT
TIME VESTING
PARTIAL CASH SETTLEMENT OPTION
Director Grantee:
1. Grant of Restricted Stock Unit Award.
(a) As of [_______ __, 20__], the date of this agreement (this “Agreement”),
Independence Contract Drilling, Inc., a Delaware corporation (the “Company”), hereby grants to
the Grantee (identified above) [_______] restricted stock units (the “RSUs”) pursuant to the
Amended and Restated Independence Contract Drilling, Inc. 2012 Omnibus Incentive Plan, as
amended (the “Plan”). Each RSU represents the opportunity to receive one share of Common
Stock of the Company, or for a portion of the RSUs the value of one share of Common Stock of
the Company, as set forth in Section 5(b) below, based upon satisfaction of the vesting requirement
contained herein. The Plan is hereby incorporated in this Agreement in its entirety by reference.
In the event of a conflict between the terms of the Plan and the terms of this Agreement, the terms
of the Plan shall control.
2. Definitions. All capitalized terms used herein shall have the meanings set forth in
the Plan unless otherwise provided herein. Exhibit A sets forth meanings for certain of the
capitalized terms used in this Agreement.
3. Vesting and Forfeiture. Except as otherwise provided in Exhibit C, all unvested
RSUs will be forfeited automatically by the Grantee for no consideration upon termination for any
reason of Grantee’s directorship with the Company or its affiliates (the “Company Group”) prior
to the Vesting Date. To the extent not previously forfeited, the number of RSUs vesting shall, to
the extent not vesting earlier pursuant to Exhibit B, vest entirely on the one-year anniversary of
the date of grant set forth above (the “Vesting Date”).
4. Purchase Price. No consideration shall be payable by the Grantee to the Company
for the RSUs.
5. Restrictions on RSUs and Settlement of Vested RSUs.
(a) No Dividend Equivalents are granted with to any RSUs.
(b) The Company shall settle all vested RSUs within 30 days of the date such
RSUs vest as follows: (i) to the extent Grantee elects by written communication delivered to the
Company prior to or on the Vesting Date, up to [_____________ (______)] of the total number of
RSUs subject to this Award shall be settled in cash and with respect to each such cash-settled RSU,
the Company shall pay to the Grantee an amount equal to the Fair Market Value of one share of
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Common Stock as of the Vesting Date; and (ii) all or the remaining number after giving effect to
any election by Grantee in the foregoing clause (i), as applicable, of the total number of RSUs
subject to this Award shall be settled in shares of Common Stock and with respect to each such
share-settled RSU, the Company shall issue to the Grantee one share of Common Stock.
(c) Nothing in this Agreement or the Plan shall be construed to:
(i) give the Grantee any right to be awarded any further RSUs or any
other Award in the future, even if RSUs or other Awards are granted on a regular or
repeated basis, as grants of RSUs and other Awards are completely voluntary and made
solely in the discretion of the Committee;
(ii) give the Grantee or any other person any interest in any fund or in
any specified asset or assets of the Company or any Affiliate; or
(iii) confer upon the Grantee the right to continue in the employment or
service of the Company or any Affiliate, or affect the right of the Company or any Affiliate
to terminate the employment or service of the Grantee at any time or for any reason.
(d) The Grantee shall not have any voting rights with respect to the RSUs.
6. Independent Legal and Tax Advice. Grantee acknowledges that the Company
has advised Grantee to obtain independent legal and tax advice regarding the grant, holding,
vesting and settlement of the RSUs in accordance with this Agreement and any disposition of any
such Awards or the shares of Common Stock issued with respect thereto.
7. Reorganization of Company. The existence of this Agreement shall not affect in
any way the right or power of the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure
or its business, or any merger or consolidation of the Company, or any issue or bonds, debentures,
preferred stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale
or transfer of all or any part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise. Except as otherwise provided herein, in the event of
a Corporate Change as defined in the Plan, Section 4.5 of the Plan shall be applicable.
8. Investment Representation. Grantee will enter into such written representations,
warranties and agreements as the Company may reasonably request in order to comply with any
federal or state securities law. Moreover, any stock certificate for any shares of stock issued to
Grantee hereunder may contain a legend restricting their transferability as determined by the
Company in its discretion. Grantee agrees that the Company shall not be obligated to take any
affirmative action in order to cause the issuance or transfer of shares of Stock hereunder to comply
with any law, rule or regulation that applies to the shares subject to this Agreement.
9. No Guarantee of Employment. This Agreement shall not confer upon Grantee
any right to continued employment with the Company or any Affiliate thereof.
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10. Withholding of Taxes. The Company or an Affiliate shall be entitled to satisfy,
pursuant to Section 16.3 of the Plan, any and all tax withholding requirements with respect to
RSUs.
11. General.
(a) Notices. All notices under this Agreement shall be mailed or delivered by
hand to the parties at their respective addresses set forth beneath their signatures below or at such
other address as may be designated in writing by either of the parties to one another, or to their
permitted transferees if applicable. Notices shall be effective upon receipt.
(b) Transferability of Award. The rights of the Grantee pursuant to this
Agreement are not transferable by Grantee. No right or benefit hereunder shall in any manner be
liable for or subject to any debts, contracts, liabilities, obligations or torts of Grantee or any
permitted transferee thereof. Any purported assignment, alienation, pledge, attachment, sale,
transfer or other encumbrance of the RSUs, prior to the lapse of restrictions, that does not satisfy
the requirements hereunder shall be void and unenforceable against the Company.
(c) Amendment and Termination. No amendment, modification or termination
of this Agreement shall be made at any time without the written consent of Grantee and the
Company.
(d) No Guarantee of Tax Consequences. The Company and the Committee
make no commitment or guarantee that any federal, state, local or other tax treatment will (or will
not) apply or be available to any person eligible for compensation or benefits under this
Agreement. The Grantee has been advised and been provided the opportunity to obtain
independent legal and tax advice regarding the granting, vesting and settlement of RSUs pursuant
to the Plan and this Agreement and the disposition of any Common Stock acquired thereby.
(e) Section 409A. The award of RSUs hereunder is intended to either comply
with or be exempt from Section 409A, and the provisions of this Agreement shall be administered,
interpreted and construed accordingly. If the Grantee is a “specified employee” within the meaning
of Section 409A(a)(2)(B)(i) of the Code on the date on which the Grantee has a “separation from
service” (other than due to death) within the meaning of Section 1.409A-1(h) of the Treasury
Regulations, notwithstanding the provisions of this Agreement, any transfer of shares or other
compensation payable on account of Grantee’s separation from service that constitute deferred
compensation under Section 409A shall take place on the earlier of (i) the first business day
following the expiration of six months from the Grantee’s separation from service, or (ii) such
earlier date as complies with the requirements of Section 409A. To the extent required under
Section 409A, the Grantee shall be considered to have terminated employment with the Company
or its affiliates (the “Company Group”) when the Grantee incurs a “separation from service” with
respect to the Company Group within the meaning of Section 409A(a)(2)(A)(i) of the Code.
(f) Severability. In the event that any provision of this Agreement shall be held
illegal, invalid or unenforceable for any reason, such provision shall be fully severable, but shall
not affect the remaining provisions of the Agreement, and the Agreement shall be construed and
enforced as if the illegal, invalid or unenforceable provision had not been included therein.
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(g) Supersedes Prior Agreements. This Agreement shall supersede and replace
all prior agreements and understandings, oral or written, between the Company and the Grantee
regarding the grant of the RSUs covered hereby.
(h) Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Delaware without regard to its conflict of law provisions, to the extent federal
law does not supersede and preempt Delaware law.
(i) No Trust or Fund Created. This Agreement shall not 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 a Grantee or any other Person. To the extent that any Person acquires a right to
receive payments from the Company or any Affiliates pursuant to this Agreement, such right shall
be no greater than the right of any general unsecured creditor of the Company or any Affiliate.
(j) Clawback Provisions. Notwithstanding any other provisions in this
Agreement to the contrary, any incentive-based compensation, or any other compensation, payable
pursuant to this Agreement or any other agreement or arrangement with the Company or an
affiliate which is subject to recovery under any law, government regulation or stock exchange
listing requirement, will be subject to such deductions and clawback as may be required to be made
pursuant to such law, government regulation or stock exchange listing requirement (or any policy
adopted by the Company or an affiliate pursuant to such law, government regulation or stock
exchange listing requirement.)
(k) Other Laws. The Company retains the right to refuse to issue or transfer
any Stock if it determines that the issuance or transfer of such shares might violate any applicable
law or regulation or entitle the Company to recover under Section 16(b) of the Securities Exchange
Act of 1934.
(l) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company and all persons lawfully claiming under the Grantee.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its
behalf by its duly authorized officer and Grantee has hereunto executed this Agreement as of the
date set forth above.
INDEPENDENCE CONTRACT DRILLING, INC.
By:
Name: ______________________________________
Title: ______________________________________
Address for Notices:
Independence Contract Drilling, Inc.
11601 North Galayda Street
Houston, Texas 77086
Attn: Chief Executive Officer
GRANTEE
Address for Notices:
Executive’s then current address shown in the
Company’s records.
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Exhibit A
Certain Definitions.
“Change of Control” shall mean:
(i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 50 percent or more of either (A)
the then outstanding shares of common stock or membership interests of the Company (the
“Outstanding Company Common Stock”) or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the election of
directors or managers (the “Outstanding Company Voting Securities”); provided, however,
that for purposes of this subsection A, the following acquisitions shall not constitute a
Change of Control: (1) any acquisition directly from the Company or any acquisition by
the Company; or (2) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the Company;
or (3) any acquisition by any corporation pursuant to a transaction that complies with
clauses (1), (2) and (3) of subsection (i) of this definition; or
(i) individuals, who, as of the date hereof constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company’s stockholders or members,
was approved by a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual was a member of the Incumbent
Board, but excluding, for purpose of this subsection (ii), any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board;
(ii) consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the Company (a "Corporate
Transaction") in each case, unless, following such Corporate Transaction, (1) all or
substantially all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Corporate Transaction beneficially own,
directly or indirectly, more than 60 percent of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without limitation, a corporation that
as a result of such transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such Corporate Transaction, of
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the Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (2) no Person (excluding any corporation resulting from
such Corporate Transaction or any employee benefit plan (or related trust) of the Company
or such corporation resulting from such Corporate Transaction) beneficially owns, directly
or indirectly, 20 percent or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Corporate Transaction or the combined voting
power of the then outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Corporate Transaction and (3) at least a majority of the
members of the board of directors of the corporation resulting from such Corporate
Transaction were members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for such Corporate Transaction;
or
(iii) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
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Exhibit B
Change of Control. Notwithstanding any other provision of this Agreement to the
contrary, if, prior to the scheduled Vesting Date, a Change of Control occurs, then any unvested
RSUs shall immediately vest upon the occurrence of the Change of Control.