Exhibit 10.02
PETROHAWK ENERGY
CORPORATION
SECOND AMENDED AND
RESTATED
2004 NON-EMPLOYEE DIRECTOR
INCENTIVE PLAN
This Petrohawk Energy Corporation
Second Amended and Restated 2004 Non-Employee Director Incentive
Plan, as amended by that certain Amendment No. 1 dated
July 12, 2006 (the “ Plan ”), is further
amended to give effect to an amendment effective June 18, 2009
that 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 shall be two or more
directors as the Board shall appoint to administer the
Plan.
“ 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 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 Company 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 non-employee directors of the Company to whom
the Company shall grant Restricted Stock or Incentive
Stock.
“ Immediate Family
” means with respect to a Grantee or an Optionee, the
Grantee’s or the Optionee’s spouse, children or
grandchildren (including legally adopted, step children and step
grandchildren).
“ Incentive Stock
” means Shares that may be granted to eligible persons under
Section III (c) below.
“ Incentive Stock Award
” means an agreement between the Company and a Grantee
whereby the Grantee receives Shares.
“ Incentive Stock
Agreement ” means an agreement between the Company and a
Grantee whereby the Grantee receives shares of Incentive
Stock.
“ Option Agreement
” means an agreement between the Company and an Optionee
whereby the Optionee receives Stock Options.
“ Optionee(s) ”
means those certain non-employee directors of the Company 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.
“ Plan ” means
this Petrohawk Energy Corporation Second Amended and Restated 2004
Non-Employee Director Incentive Plan.
“ Publicly Held
Corporation” means a corporation issuing any class of
common 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.
“ Share ” or
“ Shares ” means a share or shares of Common
Stock.
“ Stock Option ”
means a grant by the Company to an Optionee of the right to
purchase Company Stock under terms set forth in an Option
Agreement.
(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 encouraging
ownership in the Company by directors of the Company who are not
employees of the Company, strengthening the ability of the Company
to attract and retain the services of experienced and knowledgeable
individuals as non-employee directors of the Company, and providing
non-employee directors with a further incentive to work for the
best interests of the Company and its stockholders.
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.
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II. Administration
The Plan shall be administered by
the Committee. 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 and determinations
made by the Committee 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, shares of Incentive Stock,
and Stock Options.
(b) Grants of Restricted
Stock.
Subject to the terms and conditions
of the Plan, the Board is authorized to grant Restricted Stock to
any non-employee directors. 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 Board,
including other restrictions as the Board may determine. The Board
may impose such conditions or restrictions on any Restricted Stock
as it may deem advisable, in its sole discretion.
Unless modified by the Board, the
following grants shall be made; (i) within sixty
(60) days after the approval of this Plan by the Stockholders,
a grant of 7,500 shares of Restricted Stock shall be granted to
each person who is a non-employee director at that time;
(ii) thereafter, within sixty (60) days after a person
becomes a non-employee director, a grant of 7,500 shares of
Restricted Stock shall be granted to each such person; and
(iii) each year on the anniversary date of the date on which a
non-employee director became a director, an additional 5,000 shares
of Restricted Stock shall be granted to such person as long as he
or she is serving as a non-employee director at that time. Unless
modified by the Board, all Restricted Stock shall be restricted for
a period ending six (6) months from the date of grant with the
restriction that the Grantee be an non-employee director of the
Company for the entire six (6) month period.
(c) Grant of Incentive
Stock.
Subject to the terms and conditions
of the Plan, the Board may grant Incentive Stock to any
non-employee director in such amounts as the Board shall determine
from time to time. Each Incentive Stock Award shall be evidenced by
an Incentive Stock Agreement which shall contain the number of
Shares granted and such other terms and conditions as may be
approved by the Committee.
(d) Grant of Stock
Options.
Subject to the terms and conditions
of the Plan, the Board is authorized to grant Stock Options to any
non-employee director.
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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 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
