UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 9, 2011
NEWPARK RESOURCES, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-2960 | 72-1123385 | ||
| (State or other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
| 2700 Research Forest Drive, Suite 100 The Woodlands, TX |
77381 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (281) 362-6800
| (Former name or former address if changed since last report.) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.07 Submission of Matters to a Vote of Security Holders.
On June 9, 2011, the following proposals were submitted to the stockholders of Newpark Resources, Inc. (the “Company”) at the Company’s 2011 Annual Meeting of Stockholders.
| 1. | The election of six directors to the Board of Directors; |
| 2. | An advisory vote on named executive officer compensation; |
| 3. | An advisory vote on the frequency of future advisory votes on named executive officer compensation; |
| 4. | To consider and act upon a proposal to amend the 2003 Long Term Incentive Plan; |
| 5. | To consider and act upon a proposal to amend the 2006 Equity Incentive Plan; and |
| 6. | The ratification of the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for the fiscal year 2011. |
The proposals are more fully described in the Company’s Proxy Statement. The following are the final vote results along with a brief description of each proposal.
Proposal 1: Election of Directors: the stockholders of the Company elected each of the following director nominees for a term that will continue until the 2012 Annual Meeting of Stockholders.
| Director | Votes For | Withheld | Broker Non-Votes | |||||||||
David C. Anderson |
72,409,731 | 3,409,786 | 10,201,023 | |||||||||
Jerry W. Box |
72,401,291 | 3,418,226 | 10,201,023 | |||||||||
G. Stephen Finley |
72,411,539 | 3,407,978 | 10,201,023 | |||||||||
Paul L. Howes |
73,804,214 | 2,015,303 | 10,201,023 | |||||||||
James W. McFarland, PhD |
72,404,160 | 3,415,357 | 10,201,023 | |||||||||
Gary L. Warren |
72,404,372 | 3,415,145 | 10,201,023 | |||||||||
Proposal 2: An advisory vote on named executive officer compensation: the stockholders of the Company approved, on a non-binding advisory basis, the compensation of the named executive officers as described in the Company’s Proxy Statement.
| For | Against | Abstain | Broker Non-Votes | |||||||||
| 72,293,699 | 2,880,048 | 645,770 | 10,201,023 | |||||||||
Proposal 3: An advisory vote on the frequency of future advisory votes on named executive officer compensation: by plurality vote, the stockholders of the Company recommended, on a non-binding advisory basis, that future advisory votes on named executive officer compensation be held on an annual basis.
| 1 Year | 2 Years | 3 Years | Abstain | |||||||||
| 64,810,629 | 56,151 | 10,777,217 | 175,520 | |||||||||
Proposal 4: Approval of an amendment to the 2003 Long Term Incentive Plan: the stockholders of the Company approved the amendments to the 2003 Long Term Incentive Plan.
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| For | Against | Abstain | Broker Non-Votes | |||||||||
| 63,578,619 | 11,738,444 | 502,454 | 10,201,023 | |||||||||
Proposal 5: Approval of an amendment to the 2006 Equity Incentive Plan: the stockholders of the Company approved the amendments to the 2006 Equity Incentive Plan.
| For | Against | Abstain | Broker Non-Votes | |||||||||
| 61,043,365 | 14,346,404 | 429,748 | 10,201,023 | |||||||||
Proposal 6: Ratification of the Appointment of Independent Registered Public Accounting Firm: the stockholders of the Company ratified the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for the fiscal year 2011.
| For | Against | Abstain | Broker Non-Votes | |||||||||
| 85,814,415 | 96,820 | 109,305 | 0 | |||||||||
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits |
| Exhibit No. | Description | |
10.1
|
Newpark Resources, Inc. 2003 Long Term Incentive Plan (Amended and Restated Effective March 8, 2011). | |
10.2
|
Form of Restricted Stock Agreement under the Newpark Resources, Inc. 2003 Long Term Incentive Plan (Amended and Restated Effective March 8, 2011). |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NEWPARK RESOURCES, INC. | ||
Dated: June 14, 2011
|
By: /s/ James E. Braun | |
| James E. Braun | ||
| Senior Vice President and Chief Financial Officer |
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EXHIBIT INDEX
| Exhibit No. | Description | |
10.1
|
Newpark Resources, Inc. 2003 Long Term Incentive Plan (Amended and Restated Effective March 8, 2011). | |
10.2
|
Form of Restricted Stock Agreement under the Newpark Resources, Inc. 2003 Long Term Incentive Plan (Amended and Restated Effective March 8, 2011). |
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Exhibit 10.1
NEWPARK RESOURCES, INC.
2003 LONG TERM INCENTIVE PLAN
Amended and Restated Effective March 8, 2011
Amended and Restated Effective March 8, 2011
1. PURPOSE.
The Newpark Resources, Inc. 2003 Long Term Incentive Plan (the “Plan”) is intended (i) to
increase the value of the stockholders’ investment in Newpark Resources, Inc. (“Newpark”) by
improving Newpark’s performance and profitability; and (ii) to retain, attract and motivate
management employees, executive officers and other corporate and divisional officers (all of who
are sometimes collectively referred to herein as “Employees”) of high caliber and potential by
providing them with incentives for outstanding performance. The Plan provides for the award of
long-term incentives to those Employees who make substantial contributions to Newpark by their
loyalty, industry and invention. Unless the context indicates otherwise, references to “Newpark”
herein shall be deemed to include reference to the subsidiary of Newpark that actually employs the
affected Employee.
2. SHARES SUBJECT TO THE PLAN.
The maximum number of shares of Common Stock of Newpark (the “Stock”) that may be issued
pursuant to the Plan shall be 1,000,000, subject to adjustment pursuant to the provisions of
Section 7. For purposes of this Section 2, the following shares of Stock shall not be considered to
have been issued under the Plan; (i) shares of Stock remaining under an Award (as herein defined)
of Deferred Stock (as herein defined) which terminates without having been fully vested and (ii)
shares of Stock that have been forfeited in accordance with the terms of the applicable Award.
3. ADMINISTRATION.
3.1 The Plan shall be administered by the Compensation Committee (the “Committee”) of the
Board of Directors of Newpark (the “Board”). Each member of the Committee shall be (a) a
“Non-Employee Director” as that term is defined in Rule 16b-3 promulgated by the Securities and
Exchange Commission pursuant to the Securities and Exchange Act of 1934 (the “Exchange Act”), (b)
an “independent director” as defined under the rules of the New York Stock Exchange, as they may be
amended from time to time, except as may otherwise be permitted by such rules, and (c) an “outside
director” under Regulation Section 1.162-27 promulgated under Section 162(m) of the Internal
Revenue Code of 1986, as amended (the “Code”), but no action of the Committee shall be invalid if
this requirement is not met. The Committee shall select one of its members as Chairman and shall
act by vote of a majority of a quorum or by unanimous written consent. A majority of its members
shall constitute a quorum. The Committee shall be governed by the provisions of Newpark’s By-Laws
and of Delaware law applicable to the Board, except as otherwise provided herein or determined by
the Board.
3.2 The Committee shall have full power, discretion and authority to administer, interpret and
construe the Plan and any award or agreement made pursuant to the Plan, and to prescribe and
rescind rules, regulations and policies for administration of the Plan. The
Committee’s actions, interpretations and constructions with regard to the Plan shall be final,
conclusive and binding on all persons for all purposes.
3.3 No member of the Committee or the Board shall be liable for any action or determination
made in good faith with respect to the Plan or any award pursuant to it. Newpark shall indemnify
and hold harmless each member of the Committee and the Board, and the estate and heirs of each such
member, against all claims, liabilities, expenses, penalties, damages or other pecuniary losses,
including legal fees, which such Committee member or Board member or his or her estate or heirs may
suffer as a result of any act or omission to act in connection with the Plan, to the extent that
insurance, if any, does not cover the payment of such items.
4. ELIGIBILITY.
Key Employees of Newpark and its subsidiaries shall be eligible to be granted awards under the
Plan. In determining which key Employees to designate as participants, the Committee shall
consider those Employees of Newpark and its subsidiaries whose responsibilities and decisions, in
the judgment of the Committee, materially affect the growth, performance or profitability of
Newpark. An Employee shall become a participant in the Plan (a “Participant”) upon designation as
a Participant by the Committee, in its sole discretion.
5. GRANTS OF AWARDS AND AWARD AGREEMENTS.
5.1 Subject to the provisions of the Plan, the Committee shall (i) grant awards pursuant to
the Plan, (ii) determine the number of shares of Common Stock subject to each award, (iii)
determine the terms and conditions (which need not be identical) of each award, (iv) establish and
modify performance criteria for awards, and (v) make all of the determinations necessary or
advisable with respect to Awards under the Plan.
5.2 Each Award under the Plan shall consist of (i) Stock equivalents (“Deferred Stock”) that
vest and become payable in Stock upon the meeting of performance criteria over a three-year
performance period, as established by the Committee or (ii) shares of restricted Stock (“Restricted
Stock”) that are subject to forfeiture and vesting restrictions, restrictions on transferability
and other restrictions as established by the Committee. The Committee may grant awards of Deferred
Stock and awards of Restricted Stock (“Awards”) in such amounts, at such times, and to such
Employees as the Committee, in its discretion, may determine; provided, however, that, subject to
adjustment as provided in Section 7, the maximum number of shares of Stock which may be granted to
any one Employee during any one calendar year shall be 50,000. Each Award granted under the Plan
shall be evidenced by a written agreement (a “Deferred Stock Agreement” in the case of an Award of
Deferred Stock and a “Restricted Stock Agreement” in the case of an Award of Restricted Stock;
either one, an “Award Agreement”), in a form approved by the Committee and executed by Newpark and
the Participant to whom the Award is granted. The Award Agreement shall set forth conditions and
requirements for vesting, as well as those that will result in forfeiture. Awards shall be
conditioned upon the prompt and timely execution of the Award Agreement by the Participant and
Newpark.
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5.3 Except as otherwise determined by the Committee or provided in the Award Agreement, any
Award that is unvested at the time a Participant’s employment by Newpark and
its subsidiaries terminates for any reason or by any means shall be forfeited. In the case of
a Restricted Stock Award that is forfeited, all shares of Restricted Stock subject to that Award
shall be returned to Newpark and shall be available for issuance under the Plan. In the case of an
Award of Deferred Stock, any shares of Stock which are not issued under such Award at the time the
Award terminates shall be available for issuance under the Plan. The Committee may provide for
accelerated vesting upon the occurrence of a Change of Control or such other events as the
Committee shall determine, or upon a Participant’s death, disability, retirement at or after normal
retirement age or the termination of the Participation’s employment with Newpark by Newpark without
“Cause.” No Award that is intended to qualify as performance-based Compensation under Code Section
162(m) shall provide or allow for vesting other than by the timely satisfaction of the
pre-determined performance goals and other criteria, or if so specified by the Committee, upon
death, disability or a Change of Control.
For purposes of this Section 5.3, “Cause” shall mean: the conviction of Participant for a
felony or other crime involving fraud and/or moral turpitude;
(a) dishonesty, willful misconduct or material neglect, which neglect causes material
harm to Newpark, of Participant with respect to Newpark or any of its subsidiaries;
(b) any intentional act on the part of Participant that causes material damage to
Newpark and/or its subsidiaries’ reputation;
(c) appropriation (or an overt act attempting appropriation) of a material business
opportunity of Newpark or its subsidiaries by Participant;
(d) misappropriation (or an overt act attempting misappropriation) of any funds of
Newpark or its subsidiaries by Participant;
(e) the failure of Participant to follow the reasonable and lawful written instructions
or policy of Newpark with respect to the services to be rendered and the manner of rendering
such services by Participant, provided Participant has been given reasonable written notice
thereof and opportunity to cure and no cure has been effected within a reasonable time after
such notice; or
(f) the failure of Participant to perform or observe any of the material terms or
conditions of Participant’s employment other than by reason of illness, injury or
incapacity, provided Participant has been given reasonable written notice thereof and
opportunity to cure and no cure has been effected within a reasonable time after such
notice.
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Subject to Section 11.1, below, a “Change of Control” shall be deemed to occur if: (i) a
“Takeover Transaction” (as defined below) occurs; or (ii) any election of directors of Newpark
takes place (whether by the directors then in office or by the stockholders at a meeting or by
written consent) and a majority of the directors in the office following such election are
individuals who were not nominated by a vote of two-thirds of the members of the Board of Directors
or its nominating committee immediately preceding such election; or (iii) Newpark effectuates a
complete liquidation or a sale or disposition of all or substantially
all of its assets. A “Takeover Transaction” shall mean (i) a merger or consolidation of Newpark with, or an
acquisition of Newpark or all or substantially all of its assets by, any other corporation or
entity, other than a merger, consolidation or acquisition in which the individuals who were members
of the Board of Directors of Newpark immediately prior to such transaction continue to constitute a
majority of the Board of Directors or other governing body of the surviving corporation or entity
(or, in the case of an acquisition involving a holding company, constitute a majority of the Board
of Directors or other governing body of the holding company) for a period of not less than twelve
(12) months following the closing of such transaction, or (ii) one or more occurrences or events as
a result of which any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange
Act) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of thirty percent (30%) or more of the combined voting power of Newpark’s
then outstanding securities.
5.4 The Committee may modify or amend any Award under the Plan or waive any restrictions or
conditions applicable to such Awards but only to the extent not inconsistent with the terms of the
Plan. Notwithstanding the foregoing, the Committee may not undertake any modifications, amendments
or waivers if the effect thereof materially adversely affects the rights of any Participant without
his or her consent.
6. TERMS AND CONDITIONS OF AWARDS.
6.1 Shares of Stock underlying a Deferred Stock Award will not be issued until the Deferred
Stock Award has vested pursuant to a vesting schedule and/or performance criteria set by the
Committee and the Committee has determined that the relevant schedule has been met and/or the
performance criteria achieved. Unless otherwise provided by the Committee, a Participant shall have
no rights as a stockholder of Newpark with respect to such Deferred Stock until such time as the
Award has vested and the Stock underlying the Award has been issued. The shares of Stock
underlying a Deferred Stock Award that become vested shall be issued to the Participant within ten
(10) days of the Committee’s determination that vesting has occurred, and in all cases, by no later
than two and one-half (21/2) calendar months after the end of the year in which the requirements for
vesting were satisfied.
6.2 At the time of grant of each Restricted Stock Award, the Committee shall determine the
performance and vesting requirements, conditions of, and forfeiture restrictions on transferability
and other restrictions (including, without limitation, limitations on the right to vote Restricted
Stock or the right to receive dividends on Restricted Stock) that will apply to the Award. These
restrictions may lapse separately or in combination at such times, under such circumstances
(including based on achievement of performance criteria or future service requirements or both), in
such installments or otherwise, as the Committee may determine in its discretion.
Restricted Stock granted under the Plan may be evidenced in such manner as the Committee shall
determine. If certificates representing Restricted Stock are registered in the name of the
Participant, the Committee may require that such certificates bear an appropriate legend referring
to the terms, conditions and restrictions applicable to such Restricted Stock, that Newpark retain
physical possession of the certificates, and that the Participant deliver a stock power to Newpark,
endorsed in blank, relating to the Restricted Stock.
4
Unless otherwise set forth in the Award Agreement, (a) any regular cash dividends declared and
paid with respect to shares of Restricted Stock shall be paid to the Participant at the same time
they are paid to all other stockholders of Newpark, and (b) shares of Stock distributed in
connection with a stock split or stock dividend, and any other cash or property (including
securities of Newpark or other issuers) distributed as a dividend (other than regular cash
dividends), shall be subject to restrictions and forfeiture conditions to the same extent as the
Restricted Stock with respect to which such shares, cash or other property have been distributed,
and all references to Restricted Stock in the Plan or the applicable Award Agreement shall be
deemed to include such shares, cash or other property.
Unless otherwise set forth in the Award Agreement, all voting rights appurtenant to the shares
of Restricted Stock shall be exercised by the Participant.
Upon satisfaction of the terms and conditions specified in the Restricted Stock Agreement, (a)
the Participant shall be entitled to have the legend referred to above removed from his or her
shares, and (b) if Newpark has retained possession of the certificates representing the shares of
Restricted Stock, Newpark shall promptly deliver such certificates to the Participant. If the terms
and conditions specified in the Restricted Stock Agreement have not been satisfied, the Restricted
Stock subject to the Award shall be forfeited and reacquired by Newpark or shall be subject to a
repurchase option in favor of Newpark, as may be specified in the Restricted Stock Agreement.
6.3 The Committee may designate whether any Award is intended to be “performance-based
compensation” as that term is used in Section 162(m) of the Code. Any such Awards designated as
intended to be “performance-based compensation” shall be conditioned on the achievement of one or
more performance measures, to the extent required by Code Section 162(m). The performance measures
that may be used by the Committee for Awards shall be based on any one or more of the following, as
selected by the Committee:
(a) Total stockholder return of Newpark compared to that of the PHLX Oil Service Sector
industry group, or such other peer group selected by the Committee in its discretion from
time to time (the “Peer Group”);
(b) Newpark’s return on equity compared to that of the Peer Group;
(c) Growth in Newpark’s earnings per share (EPS);
(d) Profits and/or return on capital within a specified business unit of Newpark; and
(e) The OSHA reportable incident rate within a specified business unit of Newpark.
For Awards intended to be “performance-based compensation” under Code Section 162(m), the
grant of the Awards and the establishment of performance measures shall be made during the period
required under Code Section 162(m).
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6.4 No right or interest of a Participant in an Award or the Stock underlying an unvested
Award may be transferred, pledged, encumbered, or hypothecated to or in favor of any party other
than Newpark or an affiliate of Newpark, or shall be subject to any lien, obligation, or liability
of such Participant to any other party other than Newpark or an affiliate of Newpark. No unvested
Deferred Stock Award or Restricted Stock Award shall be assignable or transferable by a Participant
other than by will or the laws of descent and distribution or pursuant to a domestic relations
order that would satisfy Section 414(p)(1)(A) of the Code if such Section applied to an Award under
the Plan; provided, however, that the Committee may (but need not) permit other transfers where the
Committee concludes that such transferability does not result in accelerated taxation and is
otherwise appropriate and desirable, taking into account any factors deemed relevant, including
without limitation, state or federal tax or securities laws applicable to transferable Awards.
7. ADJUSTMENTS.
In the event of any subdivision or consolidation of outstanding Stock or declaration of a
dividend payable in Stock or capital reorganization or reclassification or other transaction
involving an increase or reduction in the number of outstanding shares of Stock, the Committee may
adjust proportionally the number of shares of Stock reserved under this Plan, the maximum number of
shares of Stock that may be subject to Awards granted to any one individual during a calendar year,
and the number of shares of Stock covered by outstanding Awards denominated in Stock. In the event
of any consolidation or merger of Newpark with another corporation or entity or the adoption by
Newpark of a plan of exchange affecting the Stock or any distribution to holders of Stock of
securities or property (other than normal cash dividends or dividends payable in Stock), the
Committee shall make such adjustments or other provisions as it may deem equitable, including
adjustments to avoid fractional shares, to give proper effect to such event.
8. WITHHOLDING TAXES.
Newpark shall have the right, at the time of a Participant’s taxation, to make adequate
provision for any federal, state, local or foreign taxes which it believes are or may be required
by law to be withheld with respect to an Award under the Plan (“Tax Liability”), to ensure the
payment of any such Tax Liability. Newpark may provide for the payment of any Tax Liability by any
of the following means or a combination of such means, as determined by the Committee in its sole
and absolute discretion in the particular case: (i) by requiring the Participant to tender a cash
payment to Newpark, (ii) by withholding from the Participant’s cash compensation, (iii) by
withholding shares from the shares of Common Stock issued under the Deferred Stock Award or become
vested in the case of Restricted Stock Awards, in each case, valued as of the date the shares are
withheld, or (iv) by any other method deemed appropriate by the Committee.
9. AMENDMENT AND TERMINATION.
The Board may at any time suspend, amend or terminate the Plan. No such action shall adversely
affect any outstanding Award Agreement without the Participant’s written consent. No amendment or
modification of the Plan may be adopted, except by stockholder approval, which would (a) materially
increase the benefits accruing to Participants under the Plan, (b) materially increase the number
of securities which may be issued under this Plan (except for adjustments
pursuant to Section 7) or (c) materially modify the requirements as to eligibility for
participation in the Plan.
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10. MISCELLANEOUS.
10.1 Nothing in this Plan or any Award granted hereunder shall confer upon any employee any
right to continue in the employ of Newpark or interfere in any way with the right of Newpark to
terminate his or her employment at any time.
10.2 Except as may be required under the terms of any employee benefit plan subject to the
Employee Retirement Incentive Security Act of 1974, as amended, or applicable law, no Award granted
under the Plan shall be deemed salary or compensation for the purpose of computing benefits under
any employee benefit plan or other arrangement of Newpark for the benefit of its employees.
10.3 The Plan and the grant of Awards under it shall be subject to all applicable federal and
state laws, rules and regulations and to such approvals by any governmental or regulatory agency as
may be required.
10.4 The Plan shall be construed in accordance with and governed by the laws of the State of
Delaware.
10.5 Subject to the provisions of Section 6, each Award Agreement shall inure to the benefit
of the Participant and the Participant’s heirs, representatives and successors and shall be binding
on Newpark and each successor (direct or indirect, whether by purchase, merger, consolidation or
otherwise).
10.6 No Stock issued under the Plan may be resold unless and until any applicable registration
or qualification requirements of federal and state securities laws and all other requirements of
law or any regulatory bodies having jurisdiction over such resale have been fully complied with.
Newpark shall have no obligation to file any Registration Statement covering resales of the Stock.
11. CODE SECTION 409A.
11.1 In the case of Deferred Stock Awards: (i) the term “Change of Control” herein shall mean,
but only with respect to the income so affected, a transaction, circumstance or event that
constitutes a “Change of Control” (as defined above) and that also constitutes a “change in control
event” within the meaning of Treas. Reg. §1.409A-3(i)(5); (ii) references to the disability of a
Participant shall mean (a) the inability of the Participant to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment that can be expected
to result in death or can be expected to last for a continuous period of not less than twelve
months or (b) the receipt of income replacements by the Participant, by reason of any medically
determinable physical or mental impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than twelve (12) months, for a period of not
less than three months under the Newpark accident and health plan; and (iii) references to the
termination of a Participant’s employment, where vesting will or could result from such
termination, shall mean a termination of such employment without Cause that results from death
or disability or that constitutes an “involuntary separation from service” within the meaning
of Treas. Reg. §1.409A-1(n).
7
11.2 In the event that a “specified employee” (as defined under Code Section 409A) becomes
entitled to shares of Common Stock under a Deferred Stock Award on account of a termination of
employment, such Common Stock shall not be transferred until the first day of the seventh calendar
month after the date of the Participant’s “separation from service” within the meaning of Code
Section 409A.
11.3 No Award shall contain or reflect, or be amended, affected or supplemented by any other
agreement (including, but not limited to, employment agreements, other plans or arrangements of
deferred compensation) so as to contain, include or be subject to a “deferral feature” or an
“additional deferral feature” within the meaning and usage of those terms under Code Section 409A.
11.4 Certain items of compensation paid pursuant to this Plan are or may be subject to Code
Section 409A of the Code. In such instances, this Plan is intended to comply and shall be
administered in a manner that is intended to comply with Code Section 409A and shall be construed
and interpreted in accordance with such intent.
12. MISCONDUCT OF A PARTICIPANT.
Notwithstanding any other provision of the Plan, if a Participant commits fraud or dishonesty
toward Newpark, wrongfully uses or discloses any trade secret, confidential data or other
information proprietary to Newpark or intentionally takes any other action materially inimical to
the best interests of Newpark, as determined by the Committee in its sole and absolute discretion,
such Participant shall forfeit all rights under every unvested Award.
13. STOCKHOLDER APPROVAL AND TERM OF PLAN.
The effective date of the Plan shall be March 12, 2003, subject to approval by the
stockholders of Newpark on or before December 31, 2003. If stockholder is not timely obtained, all
Awards made under the Plan shall be null and void and all shares of Stock issued thereunder, and
any dividends and other distributions declared or paid thereon, shall be forfeited to Newpark
without any payment with respect thereto. No Awards may be granted under the Plan after March 12,
2013.
8
Exhibit 10.2
NEWPARK RESOURCES, INC.
RESTRICTED STOCK AGREEMENT
1. Grant of Restricted Stock. Subject to the conditions described in this agreement (the
“Award Agreement”) and in the Newpark Resources, Inc. 2003 Long Term Incentive Plan, as amended
from time to time (the “Plan”), Newpark Resources, Inc., a Delaware corporation (the “Company”),
hereby grants to (“Participant”) all rights, title and interest in the
record and beneficial ownership of
(_____) shares (the “Restricted Stock”) of
common stock, $0.001 par value per share, of the Company (“Stock”). This Award of Restricted Stock
shall be effective as of the date (the “Date of Grant”) of approval by the Committee. The Date of
Grant is
_____, 20_____. All capitalized terms not otherwise defined herein shall
have the meanings set forth in the Plan, the terms of which are incorporated herein by reference.
2. Vesting.
(a) Vesting Schedule. Subject to the satisfaction of the terms and conditions
set forth in the Plan and this Award Agreement, Participant shall vest in his rights under
the Restricted Stock and the Company’s right to the return and reacquisition of such shares
by or upon Participant’s forfeiture shall lapse with respect to the Restricted Stock
according to the following schedule:
(i) of the Restricted Stock (rounded to the nearest whole number
of shares) shall vest on the[ first anniversary] of the Date of Grant.
(ii) of the Restricted Stock (rounded to the nearest whole number
of shares) shall vest on the [second anniversary] of the Date of Grant.
(iii) [Additional anniversaries as necessary.]
(iv) The remainder of the Restricted Stock shall vest on the
anniversary of the Date of Grant.
The term “Restriction Period” refers to the period, applicable to a given share of
Restricted Stock, from the Date of Grant until that share of Restricted Stock has become
vested and the restrictions thereon have lapsed, whether pursuant to this Section 2(a) or
Section 2(b) below. References to the end of the Restriction Period or to times following
the Restriction Period shall refer to the time of, or the time following, as the case may
be, the vesting of shares of Restricted Stock and the lapse of the restrictions thereon, and
shall not be construed to refer to the event of or the period following the forfeiture of
shares of Restricted Stock
(b) Vesting upon Change in Control. Notwithstanding the foregoing, in the
event of a Change in Control, then immediately prior to the consummation of such Change in
Control, any of the Restricted Stock held by Participant which remain unvested and not
previously forfeited at such time shall immediately become vested. For purposes of this
Award Agreement, “Change of Control” shall have the meaning set forth
in the Plan unless the Participant has entered into a change of control letter
agreement with the Company (a “Change in Control Agreement”), in which event the term shall
have the meaning set forth in the Change in Control Agreement. To the extent there is any
conflict between the definition in the Change in Control Agreement and the definition in the
Plan, the definition in the Change in Control Agreement shall control. Upon the occurrence
of a Change in Control or Potential Change in Control (as defined in the Change in Control
Agreement), the provisions of the Change in Control Agreement pertaining to the acceleration
of vesting of any Awards, including the Award evidenced by this Award Agreement, shall
control.
In the case any item of income under the Award subject to this Award Agreement to which the
definition of “Change in Control” under the Plan or Change in Control Agreement, as
appropriate, would otherwise apply with the effect that the income tax under Section 409A of
the Code would apply or be imposed on income under that Award, but where such tax would not
apply or be imposed if the meaning of the term “Change in Control” met the requirements of
Section 409A(a)(2)(A)(v) of the Code, then the term “Change in Control” herein shall mean,
but only with respect to the income so affected, a transaction, circumstance or event that
constitutes a “Change in Control” under the Plan or Change in Control Agreement, as
appropriate, and that also constitutes a “change in control event” within the meaning of
Treas. Reg. §1.409A-3(i)(5).
3. Issuance and Transferability.
(a) Registration and Restricting Legend. Upon grant, the Restricted Stock
granted hereunder shall be represented by uncertificated shares designated for the
Participant in book-entry registration on the records of the Company’s transfer agent or at
the discretion of the Company, by a stock certificate issued and registered in the
Participant’s name, in each case subject to the restrictions set forth in this Award
Agreement. Any book-entry uncertificated shares or stock certificates evidencing the
Restricted Stock shall be held in custody by the Company until the restrictions thereon have
lapsed, and as a condition of this Award, the Participant shall deliver to the Company a
stock power in substantially the form of Exhibit A attached hereto, endorsed in blank, with
respect to any certificated shares of Restricted Stock.
The book-entry or share certificates evidencing the Restricted Stock which are the subject
of this Award Agreement shall be subject to the following legend:
“The shares represented by this Certificate or book-entry registration have
been issued pursuant to the terms of the Newpark Resources, Inc. 2003 Long
Term Incentive Plan (as Amended and Restated Effective March 8, 2011) and
may not be sold, pledged, transferred, assigned or otherwise encumbered in
any manner except as set forth in the terms of the Restricted Stock
Agreement dated , 20
_____.”
In addition, the shares of Restricted Stock shall be subject to such stop-transfer orders
and other restrictive measures as the Company may deem advisable under applicable securities
laws, or to implement the terms, conditions or restrictions under this Award Agreement.
-2-
Subject to, and following, the vesting of any portion of the shares of Restricted Stock and
the removal of any restrictions thereon in accordance with Section 2 of this Award
Agreement, the Company will cause the book-entry for such portion of the Restricted Stock to
be modified to remove the foregoing legend or, at the Company’s discretion, issue a stock
certificate without such restrictive legend, in each case only with respect to the vested
portion of the shares of Restricted Stock registered on the Company’s books and records in
the name of the Participant. Following the expiration of the Restriction Period, the
Company will cause all restrictions to be removed from the book-entry registrations or, at
the Company’s discretion, issue a stock certificate without such restrictive legend, for any
shares of the Restricted Stock that have vested and with respect to which the restrictions
imposed thereon have lapse, in each case only to the extent such action has not previously
been taken in accordance with the provisions of this paragraph.
(b) Prohibition on Transfer. During the Restriction Period, the Restricted
Stock shall not be transferable other than by will or the laws of descent and distribution
or pursuant to a domestic relations order that would satisfy Section 414(p)(1)(A) of the
Code if such section applies to the Award evidenced hereby. No right or benefit hereunder
shall in any manner be liable for or subject to any debts, contracts, liabilities, or torts
of Participant. Any purported assignment, alienation, pledge, attachment, sale, transfer or
other encumbrance of the Restricted Stock, regardless of by whom initiated or attempted,
prior to the lapse of restrictions shall be void and unenforceable against the Company. If,
notwithstanding the foregoing, an assignment, alienation, pledge, attachment, sale, transfer
or other encumbrance of the Restricted Stock is effected by operation of law, court order or
otherwise, the affected Restricted Stock shall remain subject to the risk of forfeiture,
vesting requirement and all other terms and conditions of this Award Agreement. In the case
of Participant’s death or Disability, Participant’s vested rights under this Award Agreement
(if any) may be exercised and enforced by Participant’s guardian or legal representative.
4. Forfeiture. In the event of the termination of the Participant’s employment during the
Restriction Period by either the Company or by Participant for any reason whatsoever, including,
without limitation, as a result of the Participant’s death or Disability, the unvested portion of
the Restricted Stock held by Participant at that time shall immediately be forfeited; provided,
however, that if the Participant is a party to a Change in Control Agreement and the Participant’s
employment is terminated under circumstances covered by such Change in Control Agreement, the
provisions of the Change in Control Agreement shall control.
-3-
5. Ownership Rights/Dividends. Subject to any reservations, conditions or restrictions set
forth in this Award Agreement and/or the Plan, upon grant to Participant of the Restricted Stock,
Participant shall be the holder of record of the Restricted Stock and shall have all of the rights
of a stockholder with respect to such Restricted Stock, including the right to vote such Restricted
Stock and the right to receive dividends and other distributions payable with respect to the
Restricted Stock; provided, however, that during the Restriction Period, any dividends, cash or
stock, that would otherwise be payable or deliverable on any shares of Restricted Stock shall be
deferred and shall not be paid or delivered unless and until such share or shares of Restricted
Stock become fully vested and the restrictions thereon lapse. In the event of the forfeiture of
any shares of the Restricted Stock, the Participant shall have no further rights with respect to
such Restricted Stock and shall forfeit any dividends, whether in cash or stock,
related to the forfeited shares of Restricted Stock. To the extent the shares of Restricted
Stock shall become fully vested and the restrictions thereon shall lapse, all dividends, whether in
cash or stock, or other distributions payable with respect to the Restricted Stock, if any, shall
be paid or delivered to the Participant without interest within ten (10) days of the date on which
the underlying share or shares of Restricted Stock vest and the restrictions thereon lapse. If and
to the extent vesting of any share or shares of Restricted Stock occurs by reason of a Change in
Control, then notwithstanding the foregoing, the vesting of any accrued dividends on any such
shares of Restricted Stock shall be controlled by and separately determined in accordance with the
last paragraph of Section 2(b), above. Pending the payment or delivery of any such dividends, the
Company’s obligation in respect thereof shall constitute an unfunded, unsecured general obligation
of the Company.
6. Reorganization of the Company. The existence of this Award Agreement shall not affect in
any way the right or power of the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure
or its business; any merger or consolidation of the Company; any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Restricted Stock or the rights
thereof; the dissolution or liquidation of the Company, or any sale or transfer of all or any part
of its assets or business, or any other corporate act or proceeding, whether of a similar character
or otherwise.
7. Changes in Capitalization. In the event that at any time after the Date of Grant there is
any subdivision or consolidation of outstanding Stock or declaration of a dividend payable in Stock
or capital reorganization or reclassification or other transaction involving an increase or
reduction in the number of outstanding shares of Stock, the number of shares of Restricted Stock
which have not vested under this Award Agreement, subject to any required action of the
stockholders of the Company, shall automatically be proportionately adjusted. In the event of any
consolidation or merger of the Company with another corporation or entity or the adoption by the
Company of a plan of exchange affecting the Stock or any distribution to holders of Stock of
securities or property (other than normal cash dividends or dividends payable in Stock), the number
of shares of Restricted Stock which have not vested under this Award Agreement, subject to any
required action of the stockholders of the Company, shall automatically be proportionately
adjusted, to give proper effect to such events.
8. Certain Restrictions. By executing this Award Agreement, Participant acknowledges that he
will make or enter into such written representations, warranties and agreements and execute such
documents as the Company may reasonably request in order to comply with the securities law or any
other applicable laws, rules or regulations, or with this Award Agreement or the terms of the Plan.
The Company may from time to time impose such conditions on the transfer of the Restricted Stock
as it deems necessary or advisable to ensure that any transfers of the Restricted Stock will
satisfy the applicable requirements of federal and state securities laws. Such conditions may
include, without limitation, the partial or complete suspension of the right to transfer the
Restricted Stock until the Restricted Stock has been registered under the Securities Act of 1933,
as amended.
-4-
9. Amendment and Termination. This Award Agreement may not be terminated by the Board of
Directors or the Committee at any time without the written consent of Participant. No amendment or
termination of the Plan will adversely affect the rights and
privileges of Participant under the Award Agreement or to the Restricted Stock granted
hereunder without the consent of Participant.
10. No Guarantee of Employment. Neither this Award Agreement nor the award of Restricted
Stock evidenced hereby shall confer upon Participant any right with respect to continuance of
employment with the Company nor shall it interfere in any way with the right the Company would
otherwise have to terminate such Participant’s employment at any time.
11. Clawback Policy. Notwithstanding any provisions in the Plan or this Award Agreement to
the contrary, this Award Agreement and any shares of Restricted Stock (and dividends accrued
thereon) subject to this Award Agreement including, without limitation, shares of Restricted Stock
that have vested and with respect to which restrictions imposed thereon have lapsed, and any
dividends on such shares that have been paid, shall be subject to potential cancellation,
rescission, clawback and recoupment (i) to the extent necessary to comply with the requirements of
the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and any regulations or
listing requirements promulgated thereunder, and/or (ii) as may be required in accordance with the
terms of any clawback/recoupment policy as may be adopted by the Company to comply with the
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and any regulations or listing
requirements promulgated thereunder.
12. Taxes and Withholdings.
(a) Tax Consequences. The granting, vesting and/or sale of all or any portion
of the Restricted Stock may trigger tax liability. Any dividends on Restricted Stock may
also trigger tax liability. Participant agrees that he shall be solely responsible for any
such tax liability. Participant is encouraged to contact his tax advisor to discuss any tax
implications which may arise in connection with the Restricted Stock.
(b) Withholding. Participant acknowledges that the vesting of Restricted Stock
granted pursuant to this Award Agreement, the making of an election under Section 83(b) of
the Code and the vesting and payment of any accrued dividends may result in federal, state
or local tax withholding obligations. Participant understands and acknowledges that the
Company will not deliver shares of Stock or make any payment of accrued dividends until it
is satisfied that appropriate arrangements have been made to satisfy any tax obligation
under this Award Agreement or the Plan and agrees to make appropriate arrangements suitable
to the Company for satisfaction of all tax withholding obligations. Further, Participant
hereby agrees and grants to the Company the right to withhold from any payments or amounts
of compensation, payable in cash or otherwise, in order to meet any tax withholding
obligations under this Award Agreement or the Plan. As such, if the Company requests that
Participant take any action required to effect any action described in this Section 12 and
to satisfy the tax withholding obligation pursuant to this Award Agreement and the Plan,
Participant hereby agrees to promptly take any such action.
(c) Section 83(b). Participant shall be permitted, at the Participant’s sole
discretion, to make an election under Section 83(b) of the Code with regard to the
Restricted Stock granted hereunder. Participant understands that any election under Section
83(b) of the Code with regard to the Restricted Stock must be made within thirty
(30) days of the Date of Grant and that, in the event of such election, Participant
will so notify the Company in writing in accordance with the Plan.
-5-
13. No Guarantee of Tax Consequences. The Company, Board of Directors and Committee make no
commitment or guarantee to Participant that any federal, state or local tax treatment will apply or
be available to any person eligible for benefits under this Award Agreement and assumes no
liability whatsoever for the tax consequences to Participant.
14. Severability. In the event that any provision of this Award Agreement is, becomes or is
deemed to be illegal, invalid, or unenforceable for any reason, or would disqualify the Plan or
this Award Agreement under any law deemed applicable by the Board of Directors or the Committee,
such provision shall be construed or deemed amended as necessary to conform to the applicable laws,
or if it cannot be construed or deemed amended without, in the determination of the Board of
Directors or the Committee, materially altering the intent of the Plan or this Award Agreement,
such provision shall be stricken as to such jurisdiction, the Participant or this Award Agreement,
and the remainder of this Award Agreement shall remain in full force and effect.
15. Terms of the Plan Control. This Award Agreement and the underlying Award are made
pursuant to the Plan. The terms of the Plan, as amended from time to time and interpreted and
applied by the Committee, shall govern and take precedence in the event of any conflict with the
terms of this Award Agreement. Notwithstanding the foregoing, if the Participant is a party to a
Change in Control Agreement, in the event of any conflict between the terms of this Award Agreement
and the Plan, and the terms and provisions of such Change in Control Agreement, the terms of the
Change in Control Agreement shall control.
16. Governing Law. This Award Agreement shall be construed in accordance with (excluding any
conflict or choice of law provisions of) the laws of the State of Delaware to the extent federal
law does not supersede and preempt Delaware law.
17. Consent to Electric Delivery; Electronic Signature. Except as otherwise prohibited by
law, in lieu of receiving documents in paper format, Participant agrees, to the fullest extent
permitted by law, to accept electronic delivery of any documents that the Company may be required
to deliver (including, but not limited to, prospectuses, prospectuses supplements, grant or award
notifications and agreements, account statements, annual and quarterly reports, and all other forms
of communications) in connection with this and any other Award made or offered by the Company.
Electronic delivery may be via a Company electronic mail system or by reference to a location on a
Company intranet to which Participant has access. Participant hereby consents to any and all
procedures the Company has established or may establish for an electronic signature system for
delivery and acceptance of any such documents that the Company may be required to deliver, and
agrees that his electronic signature is the same as, and shall have the same force and effect as,
his manual signature.
[signature blanks follow]
-6-
Executed: . |
|||||||
| NEWPARK RESOURCES, INC. | |||||||
| By: | |||||||
| Name: | |||||||
| Title: | |||||||
Accepted: . |
|||||||
| PARTICIPANT: | |||||||
| [PARTICIPANT NAME INSERT HERE] | |||||||
| Address: | |||||||
| [PARTICIPANT ADDRESS OF] | |||||||
| [RECORD INSERT HERE] | |||||||
-7-
EXHIBIT A
Assignment Separate from Certificate
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto Newpark
Resources, Inc. a Delaware corporation (the “Company”), ( ) shares of
common stock of the Company represented by Certificate No. and does hereby irrevocably
constitute and appoint , or his designee or successor, as attorney to transfer
the said stock on the books of the Company with full power of substitution in the premises.
Dated: , 20
_____
..
INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE. THE PURPOSE OF THIS
ASSIGNMENT IS TO ENABLE THE COMPANY TO EXERCISE ITS “REPURCHASE OPTION” SET FORTH IN THE AWARD
AGREEMENT WITHOUT REQUIRING ADDITIONAL SIGNATURES ON THE PART OF THE PARTICIPANT.