VERASUN ENERGY
CORPORATION
Restricted Stock
Agreement
This Restricted
Stock Agreement (“Agreement”), dated as of
, is between VeraSun Energy Corporation, a South Dakota corporation
(the “Company”), and
(“Shareholder”) and is made pursuant to the
Company’s Stock Incentive Plan.
1. Award
of Restricted Stock . Pursuant to Section 8 of the
Incentive Plan and in recognition of Shareholder’s past
services to the Company, the Company awards to Shareholder
shares
of the Company’s fully paid and nonassessable Common Shares
as a restricted stock grant (the “Shares”). All of the
Shares are subject to forfeiture as set forth in Sections 2
and 3.
2. Length
of Service Restrictions .
2.1
Shares Subject to Forfeiture .
2.1.1
All of the Shares shall initially be subject to forfeiture to the
Company. All or a portion of the Shares shall be automatically
forfeited to the Company if Shareholder’s employment by the
Company terminates for any reason, including termination with or
without Cause or retirement, as follows:
|
|
|
|
|
|
|
|
|
Portion of Restricted Stock Subject
to
|
|
Employment
Termination Prior To
|
|
Forfeiture
|
First Anniversary of Grant Date
|
|
|
|
%
|
Second Anniversary of Grant Date
|
|
|
|
%
|
Third Anniversary of Grant Date
|
|
|
|
%
|
Fourth Anniversary of Grant Date
|
|
|
|
%
|
Fifth Anniversary of Grant Date
|
|
|
|
%
|
For
purposes of this Agreement, a person is considered to be employed
by the Company if the person is employed by any entity that is
either the Company or a parent or subsidiary of the
Company.
2.1.2
Notwithstanding Section 2.1.1, the possibility of forfeiture
of the Shares established above shall lapse in its entirety if,
during the period beginning two months before a Change of Control
and ending 12 months after a Change in Control,
Shareholder’s employment by the Company shall be terminated
(A) by the Company other than for Cause, Total Disability or
death or (B) by Shareholder for Good Reason based on an event
occurring during such period.
2.2
Definitions . For purposes of this Agreement, the following
terms shall have the meanings specified.
(A) “Cause”
shall mean (1) the willful and continued failure by
Shareholder substantially to perform Shareholder’s reasonably
assigned duties with the Company, other than a failure resulting
from Shareholder’s incapacity due to physical or mental
illness or impairment, after a written demand for performance has
been delivered to Shareholder by the Chief Executive Officer or the
President which specifically identifies the manner in which the CEO
or the President believes that Shareholder has not substantially
performed Shareholder’s duties, or (2) the willful
engagement by Shareholder in illegal conduct, or the conviction of
guilty or entering of a nolo contendere plea to a felony, which is
materially and demonstrably injurious to the Company, (3) the
willful failure by Shareholder to follow material written Company
policies or (4) the commission of an act by Shareholder, or
the failure by Shareholder to act, which constitutes gross
negligence or gross misconduct. For purposes of this definition, no
act, or failure to act, on Shareholder’s part shall be
considered “willful” unless done, or omitted to be
done, by Shareholder in bad faith.
(B) “Change
in Control” shall mean the occurrence of any of the following
events:
(1) The
approval by the shareholders of the Company of:
(a) any
consolidation, merger or plan of share exchange involving the
Company (a “Merger”) as a result of which the holders
of outstanding securities of the Company ordinarily having the
right to vote for the election of directors (“Voting
Securities”) immediately prior to the Merger do not continue
to hold at least 50% of the combined voting power of the
outstanding Voting Securities of the surviving or continuing entity
immediately after the Merger, disregarding any Voting Securities
issued or retained by such holders in respect of securities of any
other party to the Merger;
(b) any
sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, the
assets of the Company; or
(c) the
adoption of any plan or proposal for the liquidation or dissolution
of the Company;
(2) At
any time during a period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors
of the Company (“Incumbent Directors”) shall cease for
any reason to constitute at least a majority thereof; provided,
however, that the term “Incumbent Director” shall also
include each new director elected during such two-year period whose
nomination or election was approved by two-thirds of the Incumbent
Directors then in office; or
(3) Any
“person” or “group” (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the “Act”)) shall, as a result of a tender
or exchange offer, open market purchases or privately negotiated
purchases from anyone other than the Company, have become the
beneficial owner (within the meaning of Rule 13d-3 under the
Act), directly or indirectly, of Voting Securities representing
twenty
2
percent (20%)
or more of the combined voting power of the then outstanding Voting
Securities.
(C) “Good
Reason” shall mean:
(1) a
diminution of Shareholder’s status, title, position(s) or
responsibilities from Shareholder’s status, title,
position(s) and responsibilities as in effect immediately prior to
the Change of Control (or two months before the Change in Control)
or the assignment to Shareholder of any duties or responsibilities
which are inconsistent with such status, title, position(s) or
responsibilities, or any removal of Shareholder from such
position(s), except in connection with the termination of
Shareholder’s employment for Cause, Total Disability or as a
result of Shareholder’s death or voluntarily by Shareholder
other than for Good Reason and provided that Good Reason shall not
exist if Shareholder has the same status, title, position(s) and
responsibilities after the Change in Control but the Company is no
longer a publicly held company or is a wholly owned subsidiary of
another company;
(2) a
reduction by the Company in Shareholder’
|
