Exhibit
4.04
NITRO PETROLEUM,
INC.
2009 STOCK INCENTIVE
PLAN
SAMPLE
PERFORMANCE-BASED AWARD AGREEMENT
THIS PERFORMANCE-BASED
AWARD AGREEMENT (this “Agreement”) is dated as of
__________, 200____ (the “Award Date”), by and between
Nitro Petroleum, Inc., a Nevada corporation (the
“Corporation”), and _________________ (the
“Participant”).
W I T N E S S E T
H
WHEREAS
, the Corporation
maintains the Nitro Petroleum, Inc. 2009 Stock Incentive Plan (the
“Plan”);
WHEREAS
, the duly appointed
Administrator, has determined that the Participant is eligible to
be granted a Stock Award (as such term is defined in the Plan)
under the Plan; and
WHEREAS
, the Corporation
hereby grants to the Participant, effective as of the date hereof,
a Stock Award (the “Award”), upon the terms and
conditions set forth herein and in the Plan.
NOW,
THEREFORE ,
in consideration of services rendered and to be rendered by the
Participant, and the mutual promises made herein and the mutual
benefits to be derived therefrom, the parties agree as
follows:
1.
Defined
Terms .
Capitalized terms used herein and not otherwise defined herein
shall have the meaning assigned to such terms in the
Plan.
2.
Grant of Award;
Benefit Offset . This Agreement evidences the
Corporation’s grant to the Participant, subject to the terms
and conditions hereof and of the Plan, of the Award with respect to
the period August 1, 2009, 2009, through August 30, 2013 (the
“Performance Period”). Benefits will be paid pursuant
to Section 7 only if one or more of the objectives specified
by the Administrator in connection with the Award as set forth on
Exhibit A hereto is achieved prior to the end of the
Performance Period.
3.
Performance
Criteria . The performance criteria and
measures applicable to the Award and related objectives are set
forth on Exhibit A hereto.
4.
Restrictions on
Transfer . The Award, and any interest
therein or amount payable in respect thereof, are generally
nontransferable as provided in Section 5.7 of the
Plan.
5.
Termination of
Relationship .
(a)
General
. If the Participant
ceases to be employed or retained by the Corporation or a
Subsidiary for any reason (other than due to the
Participant’s death or Retirement or at a time when the
Participant is Disabled) at any time during the Performance Period,
the Award shall terminate and the Participant shall have no further
rights with respect thereto.
(b)
Death, Disability, or
Retirement .
If the Participant ceases to be employed or retained by the
Corporation or a Subsidiary at any time during the Performance
Period due to the Participant’s death or Retirement or at a
time when the Participant is Disabled, the Participant (or the
Participant’s beneficiary or personal representative, as the
case may be) shall be entitled to a pro-rata portion, determined in
accordance with the next sentence, of the Award. The pro-rata
portion shall equal the amount that would have been payable for the
full Performance Period of the Award (as determined by the
Administrator in its sole discretion) had the Participant not
terminated employment, multiplied by a fraction the numerator of
which shall equal the number of days in the Performance Period that
the Participant was an employee of the Corporation or a Subsidiary
and the denominator of which shall equal the number of days in the
Performance Period. Notwithstanding Section 7 below, payment
shall be made in a cash lump sum as soon as practicable after the
Administrator determines the amount payable (if any) under this
Section 5(b).
(c)
Termination for
Cause . If
the Participant is employed on the last day of the applicable
Performance Period but his or her employment is terminated by the
Corporation or a Subsidiary for Cause prior to the date that any
amount payable pursuant to the Award is actually paid to the
Participant, the Award and any amount that is then or may become
payable in respect of the Award to the Participant shall be
forfeited and the Participant shall have no further rights with
respect thereto.
(d)
Definitions . For purposes of the Award,
“Disability” or “Disabled” means a
permanent disability (within the meaning of Section 22(e)(3)
of the Code or as otherwise determined by the Administrator). For
purposes of the Award, “Retirement” means a termination
of employment by the Participant that occurs upon or after the
Participant’s attainment of age 65 and in accordance with the
retirement policies of the Corporation (or the Subsidiary that
employs the Participant) then in effect. For purposes of the Award,
“Cause” means that the Participant: (a) has been
repeatedly negligent in the discharge of his or her duties to the
Corporation or a Subsidiary or has refused or failed to perform
stated or assigned duties (other than by reason of a disability or
analogous condition); (b) has been dishonest or committed or
engaged in any act of theft, embezzlement, dishonesty or fraud,
breach of confidentiality, or unauthorized disclosure or use of
inside information, customer lists, associate information, trade
secrets or other confidential information; (c) has breached a
fiduciary duty, or otherwise violated any duty, law, rule,
regulation or policy of the Corporation or a Subsidiary;
(d) has misused or misappropriated the assets of the
Corporation or a Subsidiary; (e) has been convicted of, or
pled guilty or nolo contendere to, any felony or any misdemeanor
involving moral turpitude or otherwise causing embarrassment to the
Corporation or a Subsidiary; (f) has materially breached any
of the provisions of any agreement with the Corporation or a
Subsidiary; (g) has engaged in unfair competition with, or
otherwise acted intentionally in a manner injurious to the
reputation, business or assets of, the Corporation or a Subsidiary;
or (h) has improperly induced a vendor or customer to breach
or terminate any contract with the Corporation or a Subsidiary or
induced a principal for whom the Corporation or a Subsidiary acts
as agent to breach or terminate such agency
relationship.
6.
Adjustments; Early
Termination . The Administrator
