Washington
|
91-0626366
|
|
(State
or other jurisdiction
of
incorporation or organization)
|
(I.R.S.
Employer
Identification
Number)
|
601
W. Main Ave., Suite 1012, Spokane, WA
|
99201
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
Mr.
James F. Westmoreland
President
and Chief Executive Officer
601
W. Main Ave., Suite 1012
Spokane,
WA 99201
|
(Name
and address of agent for service)
|
(509)
232-7674
|
(Telephone
number, including area code, of agent for
service)
|
Large accelerated
filer
|
[ ] | Accelerated filer | [ ] | ||
Non-accelerated filer | [ ] | (Do not check if a smaller reporting company) | Smaller reporting company | [ X ] | |
Title
of Each Class of
Securities
to be Registered
|
Amount
to be
Registered
(1)
|
Proposed
Maximum
Offering
Price
Per
Share
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
Common
stock, $0.001 par
value
|
4,000,000
shares
(2)
|
$0.10
(3)
|
$400,000
|
$22.32
|
(1)
|
Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “
Securities
Act
”), there are also registered hereby additional common shares
that may be offered to prevent dilution as a result of stock splits, stock
dividends, or similar transactions relating to these
shares.
|
(2)
|
Represents
the common shares available for issuance under the 2009 Restricted Stock
and Restricted Stock Unit Plan.
|
(3)
|
Estimated
solely for the purpose of computing the registration fee pursuant to Rule
457(h) under the Securities Act. Calculated on the basis of the average of
the high and low price of the common stock on April 1,
2009.
|
ITEM
1.
|
PLAN
INFORMATION
|
ITEM
2.
|
REGISTRANT
INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION
|
ITEM
3.
|
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE.
|
ITEM
4.
|
DESCRIPTION
OF SECURITIES.
|
ITEM
5.
|
INTERESTS
OF NAMED EXPERTS AND COUNSEL.
|
ITEM
6.
|
INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
|
ITEM
7.
|
EXEMPTION
FROM REGISTRATION CLAIMED.
|
ITEM
8.
|
EXHIBITS.
|
Number
|
Description
|
4.1
|
Articles
of Incorporation, as amended
(1)
|
4.2
|
Amended
and Restated Bylaws
(2)
|
4.4
|
Designations
of Series A Convertible Preferred Stock
(1)
|
4.5
|
|
4.6
|
|
4.7
|
|
5
|
|
23.1
|
ITEM
9.
|
UNDERTAKINGS.
|
|
(a)
|
The
undersigned Registrant hereby
undertakes:
|
|
(1)
|
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration
Statement;
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement; provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
|
(2)
|
That,
for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
|
(3)
|
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
|
(b)
|
For
purposes of determining any liability under the Securities Act, each
filing of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
|
(c)
|
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
|
DAYBREAK
OIL AND GAS, INC.
|
||
By:
|
/s/
James F. Westmoreland
|
|
James
F. Westmoreland
President
and Chief Executive Officer
|
Signature
|
Title
|
Date
|
||
/s/
James F. Westmoreland
|
Director
and President and Chief Executive Officer
|
April
6, 2009
|
||
James
F. Westmoreland
|
||||
/s/
Timothy R. Lindsey
|
Director
|
April
6, 2009
|
||
Timothy
R. Lindsey
|
||||
/s/
Dale B. Lavigne
|
Director
and Chairman
|
April
6, 2009
|
||
Dale
B. Lavigne
|
||||
/s/
Wayne G. Dotson
|
Director
|
April
6, 2009
|
||
Wayne
G. Dotson
|
||||
/s/
Ronald D. Lavigne
|
Director
|
April
6, 2009
|
||
Ronald
D. Lavigne
|
||||
/s/
James F. Meara
|
Director
|
April
6, 2009
|
||
James
F. Meara
|
||||
Number
|
Description
|
4.1
|
Articles
of Incorporation, as amended
(1)
|
4.2
|
Amended
and Restated Bylaws
(2)
|
4.4
|
Designations
of Series A Convertible Preferred Stock
(1)
|
4.5
|
|
4.6
|
|
4.7
|
|
5
|
|
23.1
|
|
23.2
|
|
23.3
|
|
24
|
(1)
|
Previously
filed as Exhibit 3.01 to Form 10-KSB on May 27, 2008, and incorporated by
reference herein.
|
(2)
|
Previously
filed as Exhibit 3.1 to Form 8-K on April 9, 2008, and incorporated
by reference herein.
|
1.
|
Grant
of Restricted Stock Award
.
Pursuant to
Section 7 of the
Plan, the Company
hereby issues to the Grantee on the Grant Date a Restricted Stock Award
consisting of, in the aggregate, ____ shares of Common Stock in the
capital of the Company (hereinafter called the “
Restricted
Stock
”).
|
2.
|
Incorporation
by Reference
. The provisions of the Plan are hereby
incorporated herein by reference. Except as otherwise expressly
set forth herein, this Agreement shall be construed in accordance with the
provisions of the Plan and any capitalized terms not otherwise defined in
this Agreement shall have the definitions set forth in the
Plan. The Committee shall have the authority to interpret and
construe the Plan and this Agreement and to make any and all
determinations thereunder, and its decision shall be binding and
conclusive upon the Grantee and his/her legal representative in respect of
any questions arising under the Plan or this
Agreement.
|
3.
|
Restrictions
. Except
as provided in the Plan or this Agreement, the restrictions on the
Restricted Stock are that they will be forfeited by the Grantee and all of
the Grantee’s rights to such shares shall immediately terminate without
any payment or consideration by the Company, in the event of any sale,
assignment, transfer, hypothecation, pledge or other alienation of such
Restricted Stock made or attempted, whether voluntary or involuntary, and
if involuntary whether by process of law in any civil or criminal suit,
action or proceeding, whether in the nature of an insolvency or bankruptcy
proceeding or otherwise, without the written consent of the
Board.
|
4.
|
Vesting
.
|
(a)
|
Except
as otherwise provided herein, the restrictions described in Section 3
above will lapse with respect to 25% of the Restricted Stock on each of
the first four anniversaries of the Grant Date (each such date a “
Vesting Date
”);
provided
,
that
,
except as otherwise provided herein, the Grantee is then employed by the
Company. If the Grantee’s Continuous Service is terminated at
any time prior to a Vesting Date, the unvested Restricted Stock shall
terminate and be forfeited upon such cessation of service, unless
otherwise provided in this Section 4. Notwithstanding the
foregoing, in accordance with Section 4(b) of the Plan, the Committee may
elect to accelerate the vesting of all or any portion of the Restricted
Stock Award.
|
(b)
|
Change in
Control
. At a time determined by the Committee prior to
a Change in Control, all restrictions on this Restricted Stock Award shall
expire and the Restricted Stock shall automatically become vested and
immediately nonforfeitable in full.
|
5.
|
Taxes
.
|
|
(a)
|
Withholding
. The
Grantee shall be required to pay to the Company or any Affiliate, and the
Company or any Affiliate shall have the right and is hereby authorized to
withhold, from any cash, shares of Common Stock, other securities or other
property deliverable under this Restricted Stock Award, the amount (in
cash, Common Stock, other securities or other property) of any required
withholding taxes in respect of this Restricted Stock Award or any payment
or transfer under this Restricted Stock Award or under the Plan and to
take such other action as may be necessary in the opinion of the Committee
or the Company to satisfy all obligations for the payment of such
withholding and taxes. The Grantee may satisfy this withholding
liability by: (a) the delivery of shares of Common Stock (which are
not subject to any pledge or other security interest and are Mature
Shares) owned by the Grantee having a Fair Market Value equal to such
withholding liability or (b) having the Company withhold from the
number of shares of Common Stock otherwise issuable or deliverable
pursuant to the settlement of the Restricted Stock Award a number of
shares with a Fair Market Value equal to such withholding liability (but
no more than the minimum required statutory withholding
liability).
|
|
(b)
|
Section 83(b) of the
Code
. If the Grantee properly elects, within thirty (30)
days of the Grant Date, to include in gross income for federal income tax
purposes an amount equal to the Fair Market Value of the Restricted Stock
as of the Grant Date pursuant to Section 83(b) of the Code, to the extent
required by law, the Grantee shall pay to the Company, or make other
arrangements satisfactory to the Committee to pay to the Company in the
year of such grant, any federal, state or local taxes required to be
withheld with respect to such shares. If the Grantee fails to
make such payments, the Company or its Affiliates shall, to the extent
permitted by law, have the right to deduct from any payment of any kind
otherwise due to the Grantee any federal, state or local taxes of any kind
required by law to be withheld with respect to such
shares.
|
6.
|
Rights
as Stockholder; Dividends
. The Grantee shall be the
record owner of the Restricted Stock unless and until such shares of
Common Stock are sold or otherwise disposed of, and as record owner shall
be entitled to all rights of a stockholder of the Company, including,
without limitation, voting rights, if any, with respect to the Restricted
Stock while the Restricted Stock is held in
custody.
|
7.
|
Certificates
. Reasonably
promptly following the Grant Date, the Company shall cause to be issued to
the Grantee a certificate in respect of the Restricted Stock which shall
bear the following (or a similar) legend in addition to any other legends
that may be required under federal or state securities
laws:
|
8.
|
Compliance
with Laws and Regulations
.
The issuance and
transfer of shares of Common Stock shall be subject to compliance by the
Company and the Grantee with all applicable requirements of securities
laws and with all applicable requirements of any stock exchange on which
the Company’s shares of Common Stock may be listed at the time of such
issuance or transfer.
|
9.
|
No
Right to Continuous Service
.
Nothing in
this Agreement shall be deemed by implication or otherwise to impose any
limitation on any right of the Company or any of its Affiliates to
terminate the Grantee’s Continuous Service at any
time.
|
10.
|
Notices
. All
notices, demands and other communications provided for or permitted
hereunder shall be made in writing and shall be delivered by registered or
certified first class mail, return receipt requested, telecopier, courier
service or personal delivery:
|
11.
|
Bound
by Plan
. By signing this Agreement, the Grantee
acknowledges that he/she has received a copy of the Plan and has had an
opportunity to review the Plan and agrees to be bound by all of the terms
and provisions of the Plan.
|
12.
|
Beneficiary
. The
Grantee may file with the Committee a written designation of a beneficiary
on such form as may be prescribed by the Committee and may, from time to
time, amend or revoke such designation. If no designated
beneficiary survives the Grantee, the executor or administrator of the
Grantee’s estate shall be deemed to be the Grantee’s
beneficiary.
|
13.
|
Successors
. The
terms of this Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and on the Grantee and the
beneficiaries, executors and administrators, heirs and successors of the
Grantee.
|
14.
|
Amendment
of Restricted Stock Award
. Subject to Section 15 of this
Agreement, the Committee at any time and from time to time may amend the
terms of this Restricted Stock Award;
provided
,
however
, the
Grantee’s rights under this Restricted Stock Award shall not be materially
and adversely affected by any such amendment without the Grantee’s
consent.
|
15.
|
Adjustments
. This
Restricted Stock Award is subject to adjustment pursuant to Section 12 of
the Plan.
|
16.
|
Governing
Law
.
This
Agreement shall be governed by the laws of the State of Washington without
regard to conflict of laws
principles.
|
17.
|
Interpretation
. Any
dispute regarding the interpretation of this Agreement shall be submitted
by the Grantee or the Company to the Committee for review. The
resolution of such a dispute by the Committee shall be binding on the
Company and the Grantee.
|
18.
|
Severability
. Every
provision of this Agreement is intended to be severable and any illegal or
invalid term shall not affect the validity or legality of the remaining
terms.
|
19.
|
Headings
. The
headings of the Sections hereof are provided for convenience only and are
not to serve as a basis for interpretation of construction, and shall not
constitute a part of this
Agreement.
|
20.
|
Signature
in Counterparts
. This Agreement may be signed in
counterparts, each of which shall be deemed an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
|
DAYBREAK OIL AND GAS, INC. | |||
|
By:
|
/s/ | |
Name: | |||
Title: | |||
GRANTEE | |||
|
By:
|
/s/ | |
Name: | |||
Title: | |||
1.
|
Grant
of Restricted Stock Unit Award
.
Pursuant to
Section 8 of the
Plan, the Company
hereby grants to the Grantee on the Grant Date, in the aggregate, _____
Restricted Stock Units on the terms and conditions set forth in this
Agreement and as otherwise provided in the Plan. Such
Restricted Stock Units shall be credited to a separate account maintained
for the Grantee on the books of the Company (the “
Account
”). On
any given date, the value of each Restricted Stock Unit comprising the
Restricted Stock Unit Award shall equal the Fair Market Value of one share
of Common Stock. The Award shall vest and settle in accordance
with Section 3 hereof.
|
2.
|
Incorporation
by Reference
. The provisions of the Plan are hereby
incorporated herein by reference. Except as otherwise expressly
set forth herein, this Agreement shall be construed in accordance with the
provisions of the Plan and any capitalized terms not otherwise defined in
this Agreement shall have the definitions set forth in the
Plan. The Committee shall have the authority to interpret and
construe the Plan and this Agreement and to make any and all
determinations thereunder, and its decision shall be binding and
conclusive upon the Grantee and his/her legal representative in respect of
any questions arising under the Plan or this
Agreement.
|
3.
|
Terms
and Conditions
.
|
(a)
|
Vesting
and Settlement
. Except as otherwise provided in the Plan
and this Agreement, and contingent upon the Grantee’s Continuous Service,
twenty-five percent (25%) of the Restricted Stock Unit Award shall vest
and become non-forfeitable on each of the first four anniversaries of the
Grant Date (each such date, a “
Vesting
Date
”). Upon the expiration of the restrictions (and in
no event later than March 15 of the year following the year in which the
Restricted Stock Units vest), the Company shall (i) issue and deliver to
the Grantee one share of Common Stock for each Restricted Stock Unit
subject to the Restricted Stock Unit Award (the “
RSU Shares
”)
(and, upon such settlement, the Restricted Stock Units shall cease to be
credited to the Account) and (ii) enter the Grantee’s name as a
stockholder of record with respect to the RSU Shares on the books of the
Company.
|
(b)
|
Restrictions
. The
Restricted Stock Unit Award granted hereunder may not be sold, pledged or
otherwise transferred (other than by will or the laws of descent and
distribution) and may not be subject to lien, garnishment, attachment or
other legal process. The Grantee acknowledges and agrees that,
with respect to each Restricted Stock Unit credited to his/her Account,
he/she has no voting rights with respect to the Company unless and until
each such Restricted Stock Unit is settled in RSU Shares pursuant to
Section 3(a) hereof. If the Grantee’s Continuous Service
terminates at any time prior to a Vesting Date, the unvested Restricted
Stock Units shall automatically be forfeited upon such termination of
Continuous Service, unless otherwise provided
herein. Notwithstanding the foregoing, pursuant to Section 4(b)
of the Plan, the Committee may accelerate the vesting of the Restricted
Stock Unit Award.
|
4.
|
Change
in Control
. At a time determined by the Committee prior
to a Change in Control, all unvested Restricted Stock Units shall
automatically become vested and shall be settled in accordance with
Section 3(a).
|
5.
|
Tax
Withholding
. The Grantee shall be required to pay to the
Company or any Affiliate, and the Company or any Affiliate shall have the
right and is hereby authorized to withhold, from any cash, shares of
Common Stock, other securities or other property deliverable under the
Restricted Stock Unit Award or from any compensation or other amounts
owing to the Grantee, the amount (in cash, Common Stock, other securities
or other property) of any required withholding taxes in respect of the
Restricted Stock Unit Award, or any payment or transfer under this
Restricted Stock Unit Award or under the Plan and to take such other
action as may be necessary in the opinion of the Committee or the Company
to satisfy all obligations for the payment of such withholding and taxes.
The Grantee may satisfy the withholding liability by: (a) the
delivery of shares of Common Stock (which are not subject to any pledge or
other security interest and are Mature Shares) owned by the Grantee having
a Fair Market Value equal to such withholding liability or (b) having
the Company withhold from the number of shares of Common Stock otherwise
issuable or deliverable pursuant to the settlement of the Restricted Stock
Unit Award a number of shares with a Fair Market Value equal to such
withholding liability (but no more than the minimum required statutory
withholding liability).
|
6.
|
Rights
as Stockholder
. Upon and following the Vesting Date, the
Grantee shall be the record owner of the RSU Shares, if any, issued and
delivered pursuant to such Vesting Date unless and until such shares are
sold or otherwise disposed of, and as record owner shall be entitled to
all rights of a common stockholder of the Company including, without
limitation, voting rights, if any, with respect to the
shares. Prior to each Vesting Date, the Grantee shall not be
deemed for any purpose to be the owner of shares of Common Stock subject
to the Restricted Stock Unit Award.
|
7.
|
Compliance
with Laws and Regulations
.
The issuance and
transfer of shares of Common Stock shall be subject to compliance by the
Company and the Grantee with all applicable requirements of securities
laws and with all applicable requirements of any stock exchange on which
the Company’s shares of Common Stock may be listed at the time of such
issuance or transfer.
|
8.
|
No
Right to Continuous Service
.
Nothing in
this Agreement shall be deemed by implication or otherwise to impose any
limitation on any right of the Company or any of its Affiliates to
terminate the Grantee’s Continuous Service at any
time.
|
9.
|
General
Assets
. All amounts credited to the Account under this
Agreement shall continue for all purposes to be part of the general assets
of the Company. The Grantee’s interest in the Account shall
make the Grantee only a general, unsecured creditor of the
Company.
|
10.
|
Notices
. All
notices, demands and other communications provided for or permitted
hereunder shall be made in writing and shall be delivered by registered or
certified first class mail, return receipt requested, telecopier, courier
service or personal delivery:
|
11.
|
Bound
by Plan
. By signing this Agreement, the Grantee
acknowledges that he/she has received a copy of the Plan and has had an
opportunity to review the Plan and agrees to be bound by all of the terms
and provisions of the Plan.
|
12.
|
Beneficiary
. The
Grantee may file with the Committee a written designation of a beneficiary
on such form as may be prescribed by the Committee and may, from time to
time, amend or revoke such designation. If no designated
beneficiary survives the Grantee, the executor or administrator of the
Grantee’s estate shall be deemed to be the Grantee’s
beneficiary.
|
13.
|
Successors
. The
terms of this Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and on the Grantee and the
beneficiaries, executors and administrators, heirs and successors of the
Grantee.
|
14.
|
Amendment
of Restricted Stock Unit Award
. Subject to Section 15 of
this Agreement, the Committee at any time and from time to time may amend
the terms of this Restricted Stock Unit Award;
provided
,
however
, the
Grantee’s rights under this Restricted Stock Unit Award shall not be
materially and adversely affected by any such amendment without the
Grantee’s consent.
|
15.
|
Adjustments
. This
Restricted Stock Unit Award is subject to adjustment pursuant to Section
12 of the Plan.
|
16.
|
Governing
Law
.
This
Agreement shall be governed by the laws of the State of Washington without
regard to conflict of laws
principles.
|
17.
|
Interpretation
. Any
dispute regarding the interpretation of this Agreement shall be submitted
by the Grantee or the Company to the Committee for review. The
resolution of such a dispute by the Committee shall be binding on the
Company and the Grantee.
|
18.
|
Severability
. Every
provision of this Agreement is intended to be severable and any illegal or
invalid term shall not affect the validity or legality of the remaining
terms.
|
19.
|
Headings
. The
headings of the Sections hereof are provided for convenience only and are
not to serve as a basis for interpretation of construction, and shall not
constitute a part of this
Agreement.
|
20.
|
Signature
in Counterparts
. This Agreement may be signed in
counterparts, each of which shall be deemed an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
|
DAYBREAK OIL AND GAS, INC. | |||
|
By:
|
/s/ | |
Name: | |||
Title: | |||
GRANTEE | |||
|
By:
|
/s/ | |
Name: | |||
Title: | |||
Yours truly, | |||
|
|
||
/s/
K & L Gates LLP
|
|||
|
|||
K & L Gates LLP |
HUDDLESTON
& CO., INC.
|
|||
|
By:
|
/s/ GREGORY S. FLOYD, P.E. | |
Name:
|
Gregory
S. Floyd, P.E.
|
||
Title:
|
Vice
President
|
||
Date: | April 6, 2009 |