EXHIBIT
10.1
SECOND AMENDED
AND RESTATED
HORNBECK
OFFSHORE SERVICES, INC.
INCENTIVE
COMPENSATION PLAN
RESTRICTED
STOCK UNIT AGREEMENT
FOR EXECUTIVE
OFFICERS
(Performance
Vesting)
THIS
RESTRICTED STOCK UNIT AGREEMENT (this “
Agreement ”) is made effective as of
(the “ Award Date ”) by and between
Hornbeck Offshore Services, Inc. (the “ Company
”) and
(“
Employee ”).
1.
GRANT OF RESTRICTED STOCK UNITS . Pursuant to the
Second Amended and Restated Hornbeck Offshore Services, Inc.
Incentive Compensation Plan (the “ Plan
”), Employee is hereby awarded Restricted Stock Units
covering
shares of the Common Stock of the Company. On any day, the value of
a Restricted Stock Unit shall equal the Fair Market Value of one
share of Common Stock of the Company. All of the Restricted Stock
Units shall be subject to the Forfeiture Restrictions as set forth
in Sections 4 and 5 of this Agreement.
2.
EFFECT OF THE PLAN . The Restricted Stock Units
awarded to Employee are subject to all of the terms and conditions
of the Plan, which terms and conditions are incorporated herein for
all purposes, and of this Agreement together with all rules and
determinations from time to time issued by the Committee and by the
Board pursuant to the Plan. The Company hereby reserves the right
to amend, modify, restate, supplement or terminate the Plan without
the consent of Employee, so long as such amendment, modification,
restatement or supplement shall not materially reduce the rights
and benefits available to Employee hereunder, and this Award shall
be subject, without further action by the Company or Employee, to
such amendment, modification, restatement or supplement unless
provided otherwise therein. Capitalized terms used but not defined
in this Agreement shall have the meanings ascribed to such terms in
the Plan.
3.
DEFINITIONS .
(a) “
Disability ” means the “disability”
of Employee as defined in a then effective long-term disability
plan maintained by the Company or a Subsidiary that covers such
Employee, or if such a plan does not exist at any relevant time,
“ Disability ” means the permanent and
total disability of Employee within the meaning of
Section 22(e)(3) of the Code.
(b) “
Forfeiture Restrictions ” means the prohibition
on transfer of the Restricted Stock Units and the obligations to
forfeit the Restricted Stock Units to the Company as set forth in
Sections 4 and 5 of this Agreement.
(c) “
Performance Period ” means the period beginning
on the Award Date and ending on the
anniversary of the Award Date.
(d)
“ Restricted Stock Unit ” means an Award
representing an unfunded, unsecured right to receive one share of
the Common Stock of the Company.
(e) “
Retirement ” means Employee's retirement from
employment with the Company or any of its Subsidiaries, other than
discharge for Cause, on or after the date on which Employee attains
age sixty (60), provided Employee has at least ten (10) years
of service with the Company or any of its Subsidiaries as of the
date Employee retires from service, or on or after the date on
which Employee attains age sixty-five (65).
4.
VESTING. If Employee provides continuous, eligible
service to the Company and its Subsidiaries, as determined by the
Committee or its designee, in the Committee's or its designee's
sole and absolute discretion, as applicable, until the
anniversary of the Award Date, Employee shall fully vest in the
Restricted Stock Units awarded under this Agreement in accordance
with this Section 4. The Restricted Stock Units shall vest in
full at the end of the Performance Period if, during the
Performance Period, the Company achieves any one of the following
performance criteria:
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(a)
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[Insert
Performance Measure] ;
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(b)
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[Insert
Performance Measure] ;
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(c)
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[Insert
Performance Measure] ;
or
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(d)
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[Insert
Performance Measure] .
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5.
RESTRICTIONS . Employee hereby accepts the Award of
the Restricted Stock Units and agrees with respect thereto as
follows:
(a)
Transferability . The Restricted Stock Units may be
transferred in a manner consistent with Section 15.13 of the
Plan. Except as provided in Section 15.13 of the Plan and
elsewhere in this Agreement and the Plan, the Restricted Stock
Units shall not be sold, assigned, pledged, exchanged, hypothecated
or otherwise transferred (including in connection with a margin
transaction), except by will or the laws of descent and
distribution. Any attempted assignment or pledge of a Restricted
Stock Unit or the underlying shares of Common Stock in violation of
this Agreement shall be null and void. The Company shall not be
required to honor the transfer of any Restricted Stock Units that
have been sold or otherwise transferred in violation of any of the
provisions of this Agreement or the Plan.
(b)
Mandatory Mediation and Arbitration Procedure . By
execution of this Agreement and acceptance of this Award,
which is a voluntary benefit provided to Employee by the Company,
Employee waives Employee's right to a jury trial in state or
federal court and agrees that (i) the Hornbeck Offshore
Operators, LLC Dispute Resolution Agreement Mediation and
Arbitration Procedure attached hereto as Exhibit A (“
Dispute Resolution Procedure ”) and
Section 15.17 of the Plan shall be the sole and exclusive
means of resolving disputes of the parties (including any other
persons claiming any rights or having any obligations through the
Company or Employee) arising out of or relating to this Agreement,
and (ii) the Dispute Resolution Procedure shall be the sole
and exclusive means for resolving any other covered dispute between
Employee and the Company or any of its Subsidiaries (including any
other
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person(s)
claiming any rights or having any obligations through the Company
or Employee). By execution of this Agreement,
however, Employee does not waive Employee’s right
to any normally available remedies Employee may have in connection
with any claim Employee may bring against the Company or any of its
Subsidiaries, as an arbitrator can award any normal remedies
Employee could get in a court proceeding. By execution of this
Agreement, Employee represents that to the extent Employee
considered necessary, Employee has sought, at Employee's own
expense, counsel regarding the terms of this Agreement and the
waiver contemplated in this Section 5(b).
(c)
Retirement . If Employee terminates service with the
Company and its Subsidiaries before the end of the Performance
Period as a result of Employee’s Retirement, then, at the end
of the Performance Period, if the Company has achieved any one of
the performance criteria listed in Section 4 of this
Agreement, and if not previously forfeited, the Forfeiture
Restrictions shall lapse and one hundred percent (100%) of the
Restricted Stock Units shall vest, as if the Employee had remained
employed with the Company and its Subsidiaries until the end of the
Performance Period.
(d)
Forfeiture of Restricted Stock Units . If Employee
terminates service with the Company and its Subsidiaries prior to
the
anniversary of the Award Date for any reason other than the
Employee’s death, Disability or Retirement, as herein
defined, or if Employee (or Employee’s estate) shall initiate
a legal proceeding against the Company or a Subsidiary other than
pursuant to the terms of the Dispute Resolution Procedure, then
Employee (or Employee’s estate, as applicable) shall, for no
consideration, forfeit all Restricted Stock Units.
Further, if
prior to the
anniversary of the Award Date based upon reasonable investigation
and belief, the Committee or its designee, as applicable,
determines that Employee should be subject to disciplinary action
other than termination of Employee’s service with the Company
or any of its Subsidiaries, such disciplinary action can include
Employee’s forfeiture of all or any portion of
Employee’s Restricted Stock Units awarded under this
Agreement, such determination to be made by the Committee or its
designee, in the Committee’s or the designee’s sole and
absolute discretion, as applicable. For purposes of this paragraph,
such action can be taken by the Committee or its designee, as
applicable, because of (i) any act or omission of Employee
that (A) results in the assessment of a criminal penalty
against the Company or a Subsidiary, (B) is otherwise in
violation of any federal, state, local or foreign law or regulation
(other than traffic violations and other similar misdemeanors),
(C) adversely affects or could reasonably be expected to
adversely affect the business reputation of the Company or a
Subsidiary, or (D) otherwise constitutes willful misconduct,
gross negligence, or any act of dishonesty or disloyalty,
(ii) the violation by Employee of policies established by the
Company or a Subsidiary, or (iii) the Company’s or
Subsidiary’s determination that Employee’s performance
or conduct was unacceptable.
(e)
Death or Disability . In the event of the
Employee’s death or Disability during the Performance Period,
then the Company shall determine whether or not the Company has
achieved any one of the performance criteria listed in
Section 4 of this Agreement on the business day immediately
prior to such death or Disability as if such date of determination
were the end of the Performance Period, disregarding the
-year service requirement. If the Company has achieved any one of
such performance criteria on such date, then if not
previously
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forfeited, the
Forfeiture Restrictions shall lapse and one hundred percent
(100%) of the Restricted Stock Units shall vest on the date of
Employee’s death or Disability. If the Company has not
achieved any of the performance criteria listed in Section 4
of this Agreement at the time of Employee’s death or
Disability, but the Company later achieves any of such performance
criteria during the remainder of the Performance Period, then one
hundred percent (100%) of the Restricted Stock Units shall
vest on the last day of the Performance Period.
(f)
Change in Control . If a Change in Control occurs
during the Performance Period, and the Company shall determine that
the Company has achieved any of the performance criteria set forth
in Section 4 above as of the date of the Change in Control,
disregarding the
-year service requirement, then if not previously forfeited, the
Forfeiture Restrictions shall thereupon lapse with respect to one
hundred percent (100%) of the Restricted Stock
Units.
(g)
Rights . Restricted Stock Units represent an
unfunded, unsecured promise of the Company to issue shares of
Common Stock of the Company as otherwise provided in this
Agreement. Other than the rights provided in this Agreement,
Employee shall have no rights of a stockholder of the Company until
such Restricted Stock Units have vested and the related shares of
Common Stock have been issued pursuant to the terms of this
Agreement.
(h) Issuance of Common Stock . The Company will issue
to Employee the shares of Common Stock underlying the vested
Restricted Stock Units on the date elected by the Employee on the
Deferred Compensation Agreement, if any, attached hereto as Exhibit
B. If no such Deferred Compensation Agreement is attached hereto,
the Company will issue to Employee the shares of Common Stock
underlying the vested Restricted Stock Units as soon as
administratively practicable following the lapse of the Forfeiture
Restrictions, but in no event later than 2 1
/ 2
months after the end of the calendar year in which the Forfeiture
Restrictions lapse pursuant to Sections 4 or 5(c), (e) or
(f) above; provided, however, that if it is administratively
impracticable to issue the shares of Common Stock at such time and
such impracticability was not foreseeable on the Award Date, the
Company may delay the issuance of the shares of Common Stock until
the first date thereafter on which it is administratively
practicable to do so. Evidence o
