Exhibit 10.01
PETROHAWK ENERGY
CORPORATION
THIRD AMENDED AND
RESTATED
2004 EMPLOYEE INCENTIVE
PLAN
This Petrohawk Energy Corporation
Third Amended and Restated 2004 Employee Incentive Plan (the
“Plan”) amends and restates the Petrohawk Energy
Corporation Second Amended and Restated 2004 Employee Incentive
Plan, and gives effect to (i) amendments effective May 2008
that provided for (a) a minimum of three year vesting for
restricted stock awards; and (b) lapses, acceleration or
waivers of the Restriction Period applicable to Restricted Stock
Awards and Stock Appreciation Rights to be permitted only in the
event of death, disability, retirement or Corporate Change, and
(ii) amendments effective June 18, 2009 that
(a) eliminated provisions relating to incentive stock (i.e.,
shares of common stock awarded without restrictions) that were
contradictory in light of the amendment set forth in (i)(a) above,
and (b) increased the number of shares of common stock subject
to the Plan as approved by stockholders on June 18,
2009.
I. Definitions and
Purposes
(a) Definitions.
Whenever capitalized in this
document, the following terms shall be defined as set forth
below:
“ Board ” means
the board of directors of the Company.
“ Code ” means
the Internal Revenue Code of 1986, as amended.
“ Committee ”
means the committee of the Board which may be the Compensation
Committee of the Board or such other committee as the Board shall
appoint to administer the Plan, provided it shall be
(a) comprised solely of two or more outside directors (within
the meaning of Section 162(m) of the Code and the Treasury
Regulations promulgated thereunder), and (b) constituted so as
to permit the Plan to comply with Rule 16b-3.
“ Common Stock ”
means the common stock of the Company, $.001 par value per share,
and any class of common stock into which such common stock may
hereafter be converted, reclassified or recapitalized.
“ Company ” means
Petrohawk Energy Corporation
“ Corporate Change
” shall have the meaning set forth in Section VIII(c)
below.
“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as
amended.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ Fair Market Value
” means for one Share on the date in question (i) the
closing sale price for such Share as quoted on the New York Stock
Exchange, Nasdaq National Market or Nasdaq Small Cap Market, as
applicable (“NASDAQ”), or (ii) if not so quoted,
the closing sales price as reported on the consolidated reporting
system for the securities exchange(s) on which Shares are then
listed or admitted to trading (as reported in the Wall Street
Journal or other reputable source), or (iii) if not so
reported, the average of the closing bid and asked prices for a
Share on the date of grant as quoted by the National Quotation
Bureau’s “Pink Sheets” or the National
Association of Securities Dealers’ OTC Bulletin Board System.
If there was no public trade of Common Stock on the date in
question, Fair Market Value shall be determined by reference to the
last preceding date on which such a trade was so reported. If the
Company is not a Publicly Held Corporation at the time a
determination of the Fair Market Vale of the Common Stock is
required to be made hereunder, the determination of Fair Market
Value for purposes of the Plan shall be made by the Committee in
its discretion exercised in good faith. In this respect, the
Committee may rely on such financial data, valuations, experts, and
other sources, in its discretion, as it deems advisable under the
circumstances.
“ Grantee(s) ”
means those certain employee or employees of the Company or its
subsidiaries to whom the Company shall grant Restricted Stock or
Stock Appreciation Right.
“ Immediate Family
” means with respect to an Optionee, the Optionee’s
spouse, children or grandchildren (including legally adopted, step
children and step grandchildren).
“ Incentive Stock
Option ” means a Stock Option which is intended to
qualify as an incentive stock option under Section 422 of the
Code.
“ Non-Statutory Stock
Option ” means a Stock Option that is not an Incentive
Stock Option.
“ Option Agreement
” means an agreement between the Company and an Optionee
whereby the Optionee receives Stock Options.
“ Optionee(s) ”
means those certain employees of the Company or its subsidiaries to
whom the Company shall grant Stock Options.
“ Option Price ”
shall mean the amount an Optionee must pay the Company upon
exercise of the Stock Option.
“ Participants ”
shall mean Grantees and Optionees.
“ Publicly Held
Corporation ” means an entity issuing any class of equity
securities required to be registered under Section 12 of the
Exchange Act.
“ Restricted Stock
” means Shares subject to specified restrictions that may be
granted to eligible persons under Section III
(b) below.
“ Restricted Stock
Agreement ” means an agreement between the Company and a
Grantee whereby the Grantee receives shares of Restricted
Stock.
“ Restricted Stock
Award ” means an award of Restricted Stock granted to a
Grantee.
“ Restriction Period
” means the period of time during which the Shares granted
pursuant to a Restricted Stock Award remain subject to the
restrictions or vesting set forth in the applicable Restricted
Stock Agreement; the Restriction Period shall not provide for
vesting of greater than one-third (1/3) of the total grant
upon each of the first three (3) anniversaries from the date
of such grant; provided, however, that the foregoing shall not
apply (i) to up to five percent (5%) of the number of
shares available under the Plan, or (ii) accelerated vesting
on account of the death or disability of a Participant, or
(ii) to the acceleration of vesting upon a Corporate
Change.
“ Rule 16b-3
” means Rule 16b-3, as currently in effect or as
hereinafter modified or amended, promulgated under the Exchange
Act.
“ Share ” or
“ Shares ” means a share or shares of Common
Stock.
“ Stock Appreciation
Right ” means a contractual right granted to an eligible
person under Section III(e) below.
“ SAR Agreement ”
means an agreement between the Company and a Grantee whereby the
Grantee receives a Stock Appreciation Right.
“ SAR Grant Value
” shall have the meaning set forth in Article VI.
“ Stock Option ”
means an Incentive Stock Option or a Non-Statutory Stock
Option.
(b) Purposes.
This Plan is intended to foster and
promote the long-term financial success of the Company and its
subsidiaries and to increase stockholder value by:
(a) encouraging the commitment of selected employees,
(b) motivating superior performance of certain employees by
means of long-term performance related incentives,
(c) encouraging and providing certain employees with a program
for obtaining ownership interests in the Company which link and
align their personal interests to those of the Company’s
stockholders, (d) attracting and retaining certain employees
by providing competitive incentive compensation opportunities, and
(e) enabling certain employees to share in the long-term
growth and success of the Company.
This Plan provides for payment of
various forms of incentive compensation and it is not intended to
be a plan that is subject to ERISA. The Plan shall be interpreted,
construed and administered consistent with its status as a plan
that is not subject to ERISA.
II. Administration
The Plan shall be administered by
the Committee. The Committee shall have sole authority to select
the Participants from among those individuals eligible hereunder
and to establish the number of shares of Restricted Stock which may
be granted and shares which may be subject to each Stock Option and
Stock Appreciation Right; provided, however, that, notwithstanding
any provision in the Plan to the contrary, the maximum number of
shares that may be subject to Stock Options and Stock Appreciation
Rights granted under the Plan to an individual during any calendar
year may not exceed 200,000 Shares (subject to adjustment in the
same manner as provided in Section VIII hereof with respect to
Shares subject to Stock Options and Stock Appreciation Rights then
outstanding) and the maximum number of shares of Restricted Stock
that may be granted to an individual under the Plan during any
calendar year may not exceed 100,000 shares (subject to adjustment
in the same manner as provided in Section VIII hereof with
respect to Shares subject to Stock Options then outstanding). The
limitation set forth in the preceding sentence shall be applied in
a manner which will permit compensation generated under the Plan to
constitute “performance-based” compensation for
purposes of Section 162(m) of the Code, including, without
limitation, counting against such maximum number of shares, to the
extent required under Section 162(m) of the Code and
applicable interpretive authority thereunder, any shares subject to
Stock Options and Stock Appreciation Rights that are canceled or
repriced. In selecting Participants from among individuals eligible
hereunder and in establishing the number of shares of Restricted
Stock that may be issued to each Grantee and the number of shares
that may be subject to each Stock Option and Stock Appreciation
Rights, the Committee may take into account the nature of the
services rendered by such individuals, their present and potential
contributions to the Company’s success and such other factors
as the Committee in its discretion shall deem relevant. The
Committee is authorized to interpret the Plan and may from time to
time adopt such rules and regulations, consistent with the
provisions of the Plan, as it may deem advisable to carry out the
Plan. All decisions made by the Committee in selecting the
Participants, in establishing the number of shares of Restricted
Stock which may be issued to each Grantee and the number of shares
which may be subject to each Stock Option and Stock Appreciation
Right and in construing the provisions of the Plan shall be
final.
III. Types of Grants Under the
Plan
(a) Types of
Grants.
Pursuant to this Plan, the Company
may grant shares of Restricted Stock, Stock Appreciation Rights and
Stock Options. Stock Options granted under the Plan may be either
Incentive Stock Options or Non Statutory Stock Options.
(b) Grants of Restricted
Stock.
Subject to the terms and provisions
of the Plan, the Committee, at any time and from time to time, may
grant Restricted Stock to any eligible person in such amounts and
with such restrictions as the Committee shall determine, any of
which restrictions may differ with respect to any Grantee.
Restricted Stock Awards shall include a Restriction Period as
determined by the Committee in accordance with the provisions of
the Plan and subject to the limitations set forth in the definition
of Restricted Period above. A certificate or certificates
representing the number of shares of Restricted Stock granted shall
be registered in the name of the Grantee. Until the expiration of
the Restriction Period or the lapse of restrictions in the manner
provided in the Grantee’s Restricted Stock Agreement, the
certificate or certificates shall be held in escrow by the Company
for the account of the Grantee. The Grantee shall have beneficial
ownership of the shares of Restricted Stock, including the right to
receive dividends and the right to vote the shares of Restricted
Stock. Upon the lapse of all restrictions (as set forth in the
Grantee’s Restricted Stock Agreement) on any or all of the
Restricted Stock granted to the Grantee, the certificate or
certificates representing the shares of Restricted Stock for which
the restrictions have lapsed shall be delivered to the
Grantee.
Each Restricted Stock Award shall be
evidenced by a Restricted Stock Agreement which shall contain the
Restriction Period, the number of shares of Restricted Stock and
such other terms and conditions as may be approved by the
Committee, including other restrictions as the Committee may
determine. The Committee may impose such conditions or restrictions
on any Restricted Stock as it may deem advisable, in its sole
discretion.
(c) Grant of Stock Options.
Subject to the terms and conditions
of the Plan, the Committee is authorized to grant Stock Options to
any eligible person.
Each Stock Option shall be evidenced
by an Option Agreement, which shall contain such terms and
conditions as may be approved by the Committee. The terms and
conditions of the respective Option Agreements need not be
identical for each Optionee. The Option Price upon exercise of any
Stock Option shall be payable to the Company in full either:
(i) in cash or its equivalent, or (ii) subject to prior
approval by the Committee in its discretion, by tendering
previously acquired Shares having an aggregate Fair Market Value at
the time of exercise equal to the total Option Price (provided that
the Shares which are tendered must have been held by the Optionee
for at least six (6) months prior to their tender to satisfy
the option price), or (iii) subject to prior approval by the
Committee, in its discretion, by withholding Shares which otherwise
would be acquired on exercise having an aggregate Fair Market Value
at the time of exercise equal to the total Option Price, or
(iv) subject to prior approval by the Committee in its
discretion, by a combination of (i), (ii), and (iii) above.
Any payment in Shares shall be effected by the surrender of such
Shares to the Company in good form for transfer and shall be valued
at their Fair Market Value on the date when the Stock Option is
exercised. Unless otherwise permitted by the Committee, in its
discretion, the Optionee shall not surrender, or attest to the
ownership of, Shares in payment of the Option Price if such action
would cause the Company to recognize compensation (or additional
compensation expense) with respect to the Stock Option for
financial reporting purposes expense.
The Committee, in its discretion,
also may allow the Option Price to be paid with such other
consideration as shall constitute lawful consideration for the
issuance of Shares (including, without limitation, effecting a
“cashless exercise” with a broker of the Stock Option),
subject to applicable securities law restrictions and tax
withholdings, or by any other means which the Committee determines
to be consistent with the Plan’s purpose and applicable law.
A “cashless exercise” of a Stock Option is a procedure
by which a broker provides the funds to the Optionee to effect a
Stock Option exercise, to the extent consented to by the Committee,
in its discretion. At the direction of the Optionee, the broker
will either (i) sell all of the Shares received when the Stock
Option is exercised and pay the Optionee the proceeds of the sale
(minus the Option Price, withholding taxes and any fees due to the
broker) or (ii) sell enough of the Shares received upon
exercise of the Stock Option to cover the Option Price, withholding
taxes and any fees due the broker and deliver to the Optionee
(either directly or through the Company) a stock certificate for
the remaining Shares.
In no event will the Committee allow
the Option Price to be paid with a form of consideration, including
a loan or a “cashless exercise,” if such form of
consideration would violate the Sarbanes-Oxley Act of 2002 as
determined by the Committee, in its discretion.
As soon as practicable after receipt
of a written notification of exercise and full payment, the Company
shall (i) deliver, or cause to be delivered, to or on behalf
of the Optionee, in the name of the Optionee or other appropriate
recipient, Share certificates for the number of Shares purchased
under the Stock Option or (ii) electronically credit to a
brokerage account in the name of the Optionee or other appropriate
recipient the number of Shares purchases under the Stock Option.
Such delivery shall be effected for all purposes when the Company
or a stock transfer agent of the Company shall have
(i) deposited such certificates in the United States mail,
addressed to Optionee or other appropriate recipient or
(ii) electronically credited the Shares to a brokerage account
in the name of the Optionee or other appropriate
recipient.
(d) Grant of Stock Appreciation
Rights.
Subject to the terms and conditions
of the Plan, the Committee is authorized to grant Stock
Appreciation Rights to any eligible person.
Each grant of Stock Appreciation
Rights shall be evidenced by an SAR Agreement, which shall contain
such terms and conditions as may be approved by the Committee.
Stock Appreciation Rights shall
