NATURAL GAS SYSTEMS, INC.
2004 STOCK PLAN:
SUMMARY OF STOCK GRANT
By your signature and the signature of the Company's representative
below, you and the Company agree that you are receiving shares subject to the
terms and conditions of the 2004 Stock Plan and the Stock Grant Agreement, both
of which are attached to and made a part of this document.
Name of Transferee: Liviakis Financial
Communications, Inc.
Total Number of Transferred 120,000
Shares:
Fair Market Value Per Share: $2.20
Date of Transfer: April 26, 2005
Vesting Commencement Date: May 1, 2005
Vesting Schedule: The Forfeiture Condition shall lapse
with respect to the first 1/12th of
the Transferred Shares when the
Transferee completes one month of
continuous Service after the Vesting
Commencement Date. The Forfeiture
Condition shall lapse with respect to
an additional 1/12th of the
Transferred Shares when the Transferee
completes each month of continuous
Service thereafter.
TRANSFEREE: NATURAL GAS SYSTEMS, INC.
By: By:
------------------------------ ------------------------------
Robert S. Herlin, President
Title:
NATURAL GAS SYSTEMS, INC.
2004 STOCK PLAN:
STOCK GRANT AGREEMENT (FOR SERVICES)
SECTION 1. ACQUISITION OF SHARES.
(a) Transfer. On the terms and conditions set forth in the Summary
of Stock Grant and this Agreement, the Company agrees to transfer to the
Transferee the number of Shares set forth in the Summary of Stock Grant. The
transfer shall occur at the offices of the Company on the date of transfer set
forth in the Summary of Stock Grant or at such other place and time as the
parties may agree.
(b) Consideration. The Transferee and the Company agree that the
Transferred Shares are being issued to the Transferee as consideration for a
portion of the services performed by the Transferee for the Company. The value
of such portion is agreed to be not less than 100% of the Fair Market Value of
the Transferred Shares.
(c) Stock Plan and Defined Terms. The transfer of the Transferred
Shares is subject to the Plan, a copy of which the Transferee acknowledges
having received. The provisions of the Plan are incorporated into this Agreement
by this reference. Capitalized terms are defined in Section 12 of this
Agreement.
SECTION 2. FORFEITURE CONDITION.
(a) Scope of Forfeiture Condition. All Transferred Shares initially
shall be Restricted Shares and shall be subject to forfeiture to the Company.
The Transferee shall not transfer, assign, encumber or otherwise dispose of any
Restricted Shares without the Company's written consent, except as provided in
the following sentence. The Transferee may transfer Restricted Shares to one or
more members of the Transferee's Immediate Family or to a trust established by
the Transferee for the benefit of the Transferee and/or one or more members of
the Transferee's Immediate Family, provided in either case that the Transferee
agrees in writing on a form prescribed by the Company to be bound by all
provisions of this Agreement. If the Transferee transfers any Restricted Shares,
then this Agreement shall apply to the Subsequent Transferee to the same extent
as to the Transferee.
(b) Vesting. The Forfeiture Condition shall lapse and the Restricted
Shares shall become vested in accordance with the vesting schedule set forth in
the Summary of Stock Grant. The Company may, at its sole discretion, accelerate
the vesting and waive the Forfeiture Condition, at any time.
(c) Execution of Forfeiture. The Forfeiture Condition shall be
applicable only if the Transferee's Service terminates for Cause, including
(without limitation) death or disability of John Liviakis, before all Restricted
Shares have become vested. In the event that the Transferee's Service terminates
for Cause, the certificate(s) representing any remaining Restricted Shares shall
be delivered to the Company properly endorsed for transfer. The Company shall
make no payment for Restricted Shares that are forfeited.
(d) Additional Shares or Substituted Securities. In the event of the
declaration of a stock dividend, the declaration of an extraordinary dividend
payable in a form other than stock, a spin-off, a stock split, an adjustment in
conversion ratio, a recapitalization or a similar transaction affecting the
Company's outstanding securities without receipt of consideration, any new,
substituted or additional securities or other property (including money paid
other than as an ordinary cash dividend) which are by reason of such transaction
distributed with respect to any Restricted Shares or into which such Restricted
Shares thereby become convertible shall immediately be subject to the Forfeiture
Condition. Appropriate adjustments to reflect the distribution of such
securities or property shall be made to the number and/or class of the
Restricted Shares.
(e) Termination of Rights as Stockholder. If Restricted Shares are
forfeited in accordance with this Section 2, then the person who is to forfeit
such Restricted Shares shall no longer have any rights as a holder of such
Restricted Shares. Such Restricted Shares shall be deemed to have been forfeited
in accordance with the applicable provisions hereof, whether or not the
certificate(s) therefor have been delivered as required by this Agreement.
(f) Escrow. Upon issuance, the certificates for Restricted Shares
shall be deposited in escrow with the Company to be held in accordance with the
provisions of this Agreement. Any new, substituted or additional securities or
other property described in Subsection (d) above shall immediately be delivered
to the Company to be held in escrow, but only to the extent the Transferred
Shares are at the time Restricted Shares. All regular cash dividends on
Restricted Shares (or other securities at the time held in escrow) shall be paid
directly to the Transferee and shall not be held in escrow. Restricted Shares,
together with any other assets or securities held in escrow hereunder, shall be
(i) surrendered to the Company for forfeiture and cancellation in the event that
the Forfeiture Condition applies or (ii) released to the Transferee upon the
Transferee's request to the extent the Transferred Shares are no longer
Restricted Shares (but not more frequently than once every six months). In any
event, all Transferred Shares that have vested (and any other vested assets and
securities attributable thereto) shall be released within 60 days after the
earlier of the termination of the Transferee's Service.
SECTION 3. OTHER RESTRICTIONS ON TRANSFER.
(a) Transferee Representations. In connection with the issuance and
acquisition of Shares under this Agreement, the Transferee hereby represents and
warrants to the Company as follows:
(i) The Transferee is acquiring and will hold the Transferred Shares
for investment for his or her account only and not with a view to, or for
resale in connection with, any "distribution" thereof within the meaning
of the Securities Act.
(ii) The Transferee understands that the Transferred Shares have not
been registered under the Securities Act by reason of a specific exemption
therefrom and that the Transferred Shares must be held indefinitely,
unless they are subsequently registered under the Securities Act or the
Transferee obtains an opinion of counsel, in form and substance
satisfactory to the Company and its counsel, that such registration is not
required. The Transferee further acknowledges and understands that the
Company is under no obligation to register the Transferred Shares.
(iii) The Transferee is aware of the adoption of Rule 144 by the
Securities and Exchange Commission under the Securities Act, which permits
limited public resales of securities acquired in a non-public offering,
subject to the satisfaction of certain conditions, including (without
limitation) the availability of certain current public information about
the issuer, the resale occurring only after the holding period required by
Rule 144 has been satisfied, the sale occurring through an unsolicited
"broker's transaction," and the amount of securities being sold during any
three-month period not exceeding specified limitations. The Transferee
acknowledges and understands that the conditions for resale set forth in
Rule 144 have not been satisfied and that the Company has no plans to
satisfy these conditions in the foreseeable future.
(iv) The Transferee will not sell, transfer or otherwise dispose of
the Transferred Shares in violation of the Securities Act, the Securities
Exchange Act of 1934, or the rules promulgated thereunder, including Rule
144 under the Securities Act. The Transferee agrees that he or she will
not dispose of the Transferred Shares unless and until he or she has
complied with all requirements of this Agreement applicable to the
disposition of Transferred Shares and he or she has provided the Company
with written assurances, in substance and form satisfactory to the
Company, that (A) the proposed disposition does not require registration
of the Transferred Shares under the Securities Act or all appropriate
action necessary for compliance with the registration requirements of the
Securities Act or with any exemption from registration available under the
Securities Act (including Rule 144) has been taken and (B) the proposed
disposition will not result in the contravention of any transfer
restrictions applicable to the Transferred Shares under applicable state
law.
(v) The Transferee has been furnished with, and has had access to,
such information as he or she considers necessary or appropriate for
deciding whether to invest in the Transferred Shares, and the Transferee
has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the issuance of the
Transferred Shares.
(vi) The Transferee is aware that his or her investment in the
Company is a speculative investment that has limited liquidity and is
subject to the risk of complete loss. The Transferee is able, without
impairing his or her financial condition, to hold the Transferred Shares
for an indefinite period and to suffer a complete loss of his or her
investment in the Transferred Shares.
(vii) Transferee is an "accredited investor" as defined under
Exhibit I attached hereto.
(b) Securities Law Restrictions. Regardless of whether the offering
and sale of Shares under the Plan have been registered under the Securities Act
or have been registered or qualified under the securities laws of any state, the
Company at its discretion may impose restrictions upon the sale, pledge or other
transfer of the Transferred Shares (including the placement of appropriate
legends on stock certificates or the imposition of stop-transfer instructions)
if, in the judgment of the Company, such restrictions are necessary or desirable
in order to achieve compliance with the Securities Act, the securities laws of
any state or any other law.
(c) Market Stand-Off. In connection with any underwritten public
offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act, including the Company's
initial public offering, the Transferee shall not directly or indirectly sell,
make any short sale of, loan, hypothecate, pledge, offer, grant or sell any
option or other contract for the purchase of, purchase any option or other
contract for the sale of, or otherwise dispose of or transfer, or agree to
engage in any of the foregoing transactions with respect to, any Transferred
Shares without the prior written consent of the Company or its underwriters.
Such restriction (the "Market Stand-Off") shall be in effect for such period of
time following the date of the final prospectus for the offering as may be
requested by the Company or such underwriters. In no event, however, shall such
period exceed 180 days. The Market Stand-Off shall in any event terminate two
years after the date of the Company's initial public offering. In the event of
the declaration of a stock dividend, a spin-off, a stock split, an adjustment in
conversion ratio, a recapitalization or a similar transaction affecting the
Company's outstanding securities without receipt of consideration, any new,
substituted or additional securities which are by reason of such transaction
distributed with respect to any Shares subject to the Market Stand-Off, or into
which such Shares thereby become convertible, shall immediately be subject to
the Market Stand-Off. In order to enforce the Market Stand-Off, the Company may
impose stop-transfer instructions with respect to the Transferred Shares until
the end of the applicable stand-off period. The Company's underwriters shall be
beneficiaries of the agreement set forth in this Subsection (c). This Subsection
(c) shall not apply to Shares registered in the public offering under the
Securities Act, and the Transferee shall be subject to this Subsection (c) only
if the directors and officers of the Company are subject to similar
arrangements.
t 12 (d) Rights of the Company. The Company shall not be required to (i)
transfer on its books any Transferred Shares that have been sold or transferred
in contravention of this Agreement or (ii) treat as the owner of Transferred
Shares, or otherwise to accord voting, dividend or liquidation rights to, any
Subsequent Transferee to whom Transferred Shares have been transferred in
contravention of this Agreement.
SECTION 4. SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided to the contrary, the
provisions of this Agreement shall inure to the benefit of, and be binding upon,
the Company and its successors and assigns and be binding upon the Transferee
and the Transferee's legal representatives, heirs, legatees, distributees,
assigns and transferees by operation of law, whether or not any such person has
become a party to this Agreement or has agreed in writing to join herein and to
be bound by the terms, conditions and restrictions hereof.
SECTION 5. NO RETENTION RIGHTS.
Nothing in this Agreement or in the Plan shall confer upon the
Transferee any right to continue providing services to the Company for any
period of specific duration or interfere with or otherwise restrict in any way
the rights of the Company or of the Transferee, which rights are hereby
expressly reserved by each, to terminate his or her service at any time and for
any reason, with or without cause.
SECTION 6. TAX ELECTION.
The acquisition of the Transferred Shares may result in adverse tax
consequences that may be avoided or mitigated by filing an election under Code
Section 83(b). Such election may be filed only within 30 days after the date of
transfer set forth in the Summary of Stock Grant. The Transferee should consult
with his or her tax advisor to determine the tax consequences of acquiring the
Transferred Shares and the advantages and disadvantages of filing the Code
Section 83(b) election. The Transferee acknowledges that it is his or her sole
responsibility, and not the Company's, to file a timely election under Code
Section 83(b), even if the Transferee requests the Company or its
representatives to make this filing on his or her behalf.
SECTION 7. LEGENDS.
All certificates evidencing Transferred Shares shall bear the
following legends:
"THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN COMPLIANCE WITH THE
TERMS OF A WRITTEN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER
OF THE SHARES (OR THE PREDECESSOR IN INTEREST TO THE SHARES). SUCH IMPOSES
CERTAIN FORFEITURE CONDITIONS UPON TERMINATION OF SERVICE WITH THE
COMPANY. THE SECRETARY OF THE COMPANY WILL UPON WRITTEN REQUEST FURNISH A
COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE."
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH
ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL,
THAT SUCH REGISTRATION IS NOT REQUIRED."
If required by the authorities of any state in connection with the issuance of
the Transferred Shares, the legend or legends required by such state authorities
shall also be endorsed on all such certificates.
SECTION 8. NOTICE.
Any notice required by the terms of this Agreement shall be given in
writing. It shall be deemed effective upon (i) personal delivery, (ii) deposit
with the United States Postal Service, by registered or certified mail, with
postage and fees prepaid or (iii) deposit with Federal Express Corporation, with
shipping charges prepaid. Notice shall be addressed to the Company at its
principal executive office and to the Transferee at the address that he or she
most recently provided to the Company in accordance with this Section 9.
SECTION 9. ENTIRE AGREEMENT.
The Summary of Stock Grant, this Agreement and the Plan constitute
the entire contract between the parties hereto with regard to the subject matter
hereof. They supersede any other agreements, representations or understandings
(whether oral or written and whether express or implied) which relate to the
subject matter hereof.
SECTION 10. CHOICE OF LAW.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Nevada, as such laws are applied to contracts
entered into and performed in such State.
SECTION 11. DEFINITIONS.
(a) "Agreement" shall mean this Stock Grant Agreement.
(b) "Board of Directors" shall mean the Board of Directors of the
Company, as constituted from time to time or, if a Committee has been appointed,
such Committee.
(c) "Cause" shall mean:
(i) An unauthorized use or disclosure by the Transferee of the
Company's material non-public information or trade secrets;
(ii) A material breach by the Transferee of any consulting agreement
between the Transferee and the Company;
(iii) A failure to perform satisfactorily the services and duties
that Transferee is required to perform under its agreement with the
Company;
(iv) The Transferee's conviction of, or plea of "guilty" or "no
contest" to, a felony under the laws of the United States or any state
thereof; or
(v) The Transferee's gross negligence or willful misconduct;
The foregoing, however, shall not be deemed an exclusive list of all acts or
omissions that the Company (or a Parent or Subsidiary) may consider as grounds
for the discharge of the Transferee without Cause.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(e) "Committee" shall mean a committee of the Board of Directors, as
described in Section 2 of the Plan.
(f) "Company" shall mean Natural Gas Systems, Inc., a Nevada
corporation.
(g) "Consultant" shall mean a person who performs bona fide services
for the Company, a Parent or a Subsidiary as a consultant or advisor, excluding
Employees and Outside Directors.
(h) "Employee" shall mean any individual who is a common-law
employee of the Company, a Parent or a Subsidiary.
(i) "Fair Market Value" shall mean the fair market value of a Share,
as determined by the Board of Directors in accordance with the Plan.
(j) "Forfeiture Condition" shall mean the forfeiture condition
described in Section 2.
(k) "Immediate Family" shall mean any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law and shall include
adoptive relationships.
(l) "Outside Director" shall mean a member of the Board of Directors
who is not an Employee.
(m) "Parent" shall mean any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company, if each of the
corporations other than the Company owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
(n) "Plan" shall mean the Natural Gas Systems, Inc. 2004 Stock Plan,
as amended.
(o) "Restricted Share" shall mean a Transferred Share that is
subject to the Forfeiture Condition.
(p) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(q) "Service" shall mean service as an Employee, Outside Director or
Consultant.
(r) "Share" shall mean one share of Stock, as adjusted in accordance
with Section 14 of the Plan (if applicable).
(s) "Stock" shall mean the Common Stock of the Company, with a par
value of $0.001 per Share.
(t) "Subsequent Transferee" shall mean any person to whom the
Transferee has directly or indirectly transferred any Transferred Shares.
(u) "Subsidiary" shall mean any corporation (other than the Company)
in an unbroken chain or corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
(v) "Summary of Stock Grant" shall mean the document so entitled to
which this Agreement is attached.
(w) "Transferee" shall mean the individual named in the Summary of
Stock Grant.
(x) "Transfer Notice" shall mean the notice of a proposed transfer
of Transferred Shares described in Section 3.
(y) "Transferred Shares" shall mean the Shares acquired by the
Transferee pursuant to this Agreement.
Exhibit I
CERTIFICATE OF ACCREDITED INVESTOR STATUS
Except as may be indicated by the undersigned below, the undersigned is an
"accredited investor," as that term is defined in Regulation D under the
Securities Act of 1933, as amended (the "Securities Act"). The undersigned has
checked the box below indicating the basis on which he is representing his
status as an "accredited investor":
a bank as defined in Section 3(a)(2) of the Securities Act, or any savings
and loan association or other institution as defined in Section 3(a)(5)(A)
of the Securities Act whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended (the "Securities Exchange
Act"); an insurance company as defined in Section 2(13) of the Securities
Act; an investment company registered under the Investment Company Act of
1940 or a business development company as defined in Section 2(a)(48) of
that Act; a small business investment company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; a plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, and such plan
has total assets in excess of $5,000,000; an employee benefit plan within
the meaning of the Employee Retirement Income Security Act of 1974, if the
investment decision is made by a plan fiduciary, as defined in Section
3(21) of such Act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the employee
benefit plan has total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions made solely by persons that
are "accredited investors";
a private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940;
an organization described in Section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000;
a natural person whose individual net worth, or joint net worth with the
undersigned's spouse, at the time of this purchase exceeds $1,000,000;
a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with the undersigned's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
a trust with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase is
directed by a person who has such knowledge and experience in financial
and business matters that he is capable of evaluating the merits and risks
of the prospective investment; or
t 6 6 an entity in which all of the equity holders are "accredited
investors" by virtue of their meeting one or more of the above standards.
an individual who is a director or executive officer of Natural Gas
Systems, Inc.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Accredited Investor Status effective as of __________________, 2005.
--------------------------------
Name of Recipient
By: ________________________
Name: ______________________
Title: _______________________