RETENTION BONUS AWARD
AGREEMENT
This Retention
Bonus Award Agreement (this “ Agreement ”) is
made and entered into this ___ day of
2009 by and among Resolute Energy Corporation (the “
Company ”), Resolute Holdings Sub, LLC (“
Holdings Sub ”), Resolute Holdings, LLC (“
Holdings ”) and
(“ Employee ”). The Company, Holdings Sub,
Holdings and Employee are referred to collectively as the “
Parties ” and individually as a “ Party
.”
WHEREAS, the
Company, Holdings Sub and Holdings have entered into a Purchase and
IPO Reorganization Agreement with Hicks Acquisition Company I,
Inc., Resolute Subsidiary Corporation, Resolute Aneth, LLC, and
HH-HACI, L.P., pursuant to which the Company will succeed to the
ownership of certain oil and natural gas assets previously owned by
indirect subsidiaries of Holdings and become parent of Hicks
Acquisition Company I, Inc. (the “ Transactions
”); and
WHEREAS, in
consideration of the contribution of oil and natural gas assets to
the Company, Holdings Sub is entitled to receive 9,200,000 shares
of common stock, $0.0001 per share, of the Company (the “
Common Stock ”), 200,000 of which (the “
Retention Bonus Shares ”) were, at the direction of
Holdings Sub, permitted to be re-allocated for issuance by the
Company to selected persons who have been employees of a subsidiary
of Holdings Sub (“ Resolute Employees ”);
and
WHEREAS, Holdings
Sub has directed the Company to issue the Retention Bonus Shares to
Resolute Employees; and
WHEREAS, the
Company has selected Employee for receipt of the number of shares
of Common Stock set forth in Section 1(a) (the “ Bonus
Shares ”), reflecting its desire (i) with respect to
the Initial Issuance Shares (as defined below), to reward Employee
for his/her contribution of value resulting in the successful
completion of the Transactions and (ii) with respect to the
Deferred Issuance Shares (as defined below), to create an incentive
for Employee to remain employed by the Company until the first
anniversary of the closing date of the Transactions (the “
Deferred Payment Date ”); and
WHEREAS, the
Initial Issuance Shares (as defined below) have been awarded to
Employee, and are being held in an escrow account in which
Holdings, acting as escrow agent, is holding the Initial Issuance
Shares on behalf of Employee as beneficial owner, subject to
certain conditions, including the execution by Employee of this
Agreement; and
WHEREAS, Employee
was employed by the Company on the closing date of the Transactions
and is employed by the Company as of the date of this Agreement and
desires to accept the Award on the terms and conditions set forth
herein.
NOW THEREFORE, in
consideration of the foregoing and the mutual covenants and
promises contained herein, the sufficiency of which is hereby
acknowledged, the Parties agree as follows:
(a)
Award . The Company awards to Employee, and Employee accepts
from the Company, on the terms and conditions set forth herein, a
retention bonus award (“ Retention Bonus Award
”) payable as follows:
(1)
Retention Bonus Shares (the “ Initial Issuance Shares
”) have been awarded to Employee (the issuance on such date
being referred to as the “ Initial Issuance ”)
and Employee is the beneficial owner of such shares.
(2)
Retention Bonus Shares shall be issued by Company and disbursed to
Employee by Holdings in its capacity as escrow agent on the
Deferred Payment Date (the issuance on such date being referred to
herein as the “ Deferred Issuance ” and the
Retention Bonus Shares to be issued on the Deferred Payment Date
being referred to herein as the “ Deferred Issuance
Shares ”) and Employee shall be the owner of such share
on the Deferred Payment Date, provided, however , that such
issuance shall be made no later than the first March 15
th following the end of the year in which the
Deferred Payment Date falls, or, in the event that the issuance is
made pursuant to Section 4 or Section 5, such issuance
shall be made no later than the first March 15
th following the end of the year in which Employee
terminates his or her employment with the Company or the year in
which a Change in Control occurs.
(3) The
Company has deposited the Initial Issuance Shares and the Deferred
Issuance Shares into an escrow account maintained by Holdings as
escrow agent, as set forth in the escrow agreement attached as
Annex A to this Agreement.
(4) Notwithstanding
anything herein to the contrary, the Company shall not issue to
Employee any such shares of Common Stock issuable hereunder which,
when aggregated with all other shares of Common Stock issued to
Resolute Employees as Retention Bonus Awards, exceed 200,000 shares
of Common Stock.
(ii)
Condition to Receipt of Deferred Issuance Shares . The
Company will not be required to issue the Deferred Issuance Shares
to Employee unless the Employee remains continuously employed by
the Company through the Deferred Payment Date, except under the
circumstances set forth in Section 4 or Section 5 below.
Except as so provided, in the event that the Employee’s
employment with the Company is terminated for any reason by the
Company or is terminated by him or her voluntarily, then, in either
such event, the Employee’s rights under this Agreement and
any right to receive the Deferred Issuance Shares shall lapse and
terminate immediately upon the effective date of termination. The
Parties acknowledge that Employee has no rights in the Deferred
Issuance Shares prior to the Deferred Payment Date, and that the
Deferred Issuance Shares are not eligible for an election to be
taxed at the time of grant under Section 83(b) of Internal Revenue
Code of 1986, as amended (the “ Code ”).
Accordingly, if Employee does make such an election under Section
83(b) of the Code, then any right of
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Employee under
this Agreement to receive the Deferred Issuance Shares will lapse
and terminate immediately upon the date of such
election.
(iii)
Issuance and Disbursement .
(1) The
Initial Issuance Shares are included in a stock certificate (the
“ Initial Issuance Certificate ”) in the name of
Holdings, which shall hold such shares on behalf of Employee. After
execution of this Agreement in accordance with
Section 1(a)(i)(1) and satisfaction of any other conditions to
issuance, including compliance with applicable securities laws,
Holdings shall request that the Company issue a new certificate
representing the Initial Issuance Shares in the name of Employee,
make a corresponding reduction in the number of Retention Bonus
Shares represented by the Initial Issuance Certificate, and
disburse the Initial Issuance Shares to Employee (the “
Initial Certification ”). Disbursement must occur no
later than March 15, 2010. Concurrent with the Initial
Certification, Holdings shall disburse to Employee any
distributions paid in respect of the Initial Issuance Shares prior
to the Initial Certification. Employee shall be treated as the
owner of the Initial Issuance Shares for federal income tax
purposes while such shares are held in escrow and until the Initial
Certification.
(2) During
the one -year period prior to vesting, the Deferred Issuance Shares
shall, in combination with all other Retention Bonus Shares subject
to Deferred Issuance, be represented by a stock certificate (the
“ Deferred Issuance Certificate ”) in the name
of Holdings, which shall hold such shares on behalf of Employee and
other Resolute Employees. Upon satisfaction of the vesting
condition, Holdings shall request that the Company issue a new
certificate representing the Deferred Issuance Shares in the name
of Employee and make a corresponding reduction in the number of
Retention Bonus Shares represented by the Deferred Issuance
Certificate and disburse the Deferred Issuance Shares to Employee.
Prior to the Deferred Payment Date, Holdings shall have the right
to vote the Deferred Issuance Shares in such manner as Holdings
shall determine and to receive any distributions paid on the
Deferred Issuance Shares. Holding shall be treated as the owner of
the Deferred Issuance Shares for federal income tax purposes while
such shares are held in escrow and until the Deferred Payment
Date.
(iv)
Disposition of Deferred Issuance Shares in the Event of
Forfeiture . In the event that Employee is not employed by the
Company at the Deferred Payment Date (other than by reason of the
events set forth in Section 4 or under the circumstances
contemplated by Section 5), the Company shall reissue the
Deferred Issuance Shares so forfeited by Employee in the name of
Holdings, and Holdings shall be the owner of such shares for all
purposes. If requested by the Company, Employee shall execute and
deliver to the Company blank stock powers for use in connection
with the transfer to Holdings of Deferred Issuance Shares that do
not become vested.
2.
Withholding and Taxes .
(a) Employee
is required to pay to the Company, and the Company has the right
and is hereby authorized to withhold, from any shares of Common
Stock deliverable under any Retention Bonus Award or from any
compensation or other amounts owing to Employee, the
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amount (in
cash, Common Stock, other securities or other property) of any
required withholding taxes in respect of the Retention Bonus Award,
or any payment or transfer under a Retention Bonus Award and to
take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such
withholding and taxes.
(b) Without
limiting the generality of clause (a) above, the Company may,
in its sole discretion, satisfy, in whole or in part, the foregoing
withholding liability by withholding from the number of shares of
Common Stock otherwise issuable or deliverable pursuant to the
settlement of the Retention Bonus Award a number of shares with a
Fair Market Value (as defined below) equal to such withholding
liability (but no more than the minimum required statutory
withholding liability). The Company may require Employee, through
payroll withholding, cash payment, or otherwise, to make adequate
provisions for any such tax withholding obligation of the Company
arising in connection with such Retention Bonus Award.
(c) Employee
agrees to be responsible for the payment of any taxes due on any
and all compensation provided by the Company pursuant to the
Retention Bonus Award. Employee agrees to indemnify
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