Exhibit 4.16


 


RESTRICTED
STOCK AWARD


 


EXCO
RESOURCES, INC.


2005
LONG-TERM INCENTIVE PLAN


 


1.                                       Award of Restricted Stock. Pursuant to the
EXCO Resources, Inc. 2005 Long-Term Incentive Plan (the “Plan”) for employees,
Consultants, and Outside Directors of EXCO Resources, Inc., a Texas
corporation (the “Company”)
and its Subsidiaries,


 


	
   

  	
   

  	
   

  
	
   

  	
  (the “Participant”)

  	
   

  



 


has been granted a Restricted Stock Award under the
Plan for                           
shares of Common Stock of the Company (the “Awarded Shares”).  The Date of Grant of this Restricted Stock
Award is                       ,
20      , and it shall be effective as of the
date it is signed and dated by both parties hereto [ or the later of the date
the agreement is signed and dated by both parties or                                         ].


 


2.                                       Subject to Plan.  This Award Agreement is subject to the terms
and conditions of the Plan, and the terms of the Plan shall control to the
extent not otherwise inconsistent with the provisions of this Agreement.  To the extent the terms of the Plan are
inconsistent with the provisions of this Agreement, this Agreement shall
control.  The capitalized terms used
herein that are defined in the Plan shall have the same meanings assigned to
them in the Plan.  This Award Agreement
is subject to any rules promulgated pursuant to the Plan by the Board or
the Administrator and communicated to the Participant in writing.  In addition, if the Plan previously has not
been approved by the Company’s stockholders, this Award is granted subject to
such stockholder approval.


 


3.                                       Vesting. Except as specifically provided in this
Agreement and subject to certain restrictions and conditions set forth in the
Plan, the Restricted Stock awarded shall be vested and exercisable as follows:


 


a.                                       percent (        %)
of the total Restricted Shares shall be fully vested on the Date of Grant,
provided the Participant is employed by (or, if the Participant is a Consultant
or an Outside Director, is providing services to) the Company or a Subsidiary on
that date.


 


b.                                      percent (        %)
of the total Restricted Shares shall be fully vested on the first anniversary of the Date of
Grant, provided the Participant is employed by (or, if the Participant is a
Consultant or an Outside Director, is providing services to) the Company or a
Subsidiary on that date.


 


c.                                       An additional                             
percent (        %)  of the total Restricted Shares shall be fully
vested on the second anniversary
of the Date of Grant, provided the Participant is employed by (or, if the
Participant is a Consultant or an Outside Director, is providing services to)
the Company or a Subsidiary on that date.


 


d.                                      An additional                               
percent (        %)  of the total Restricted Shares shall be shall
be fully vested on the third
anniversary of the Date of Grant, provided the Participant is employed by (or,
if the Participant is a Consultant or an Outside Director, is providing
services to) the Company or a Subsidiary on that date.


 





















 


Notwithstanding
the above, the Restricted Shares shall be fully vested automatically upon a
Change in Control (as defined in Section 2.6 of the Plan) or upon
the death of the Participant or the Total and Permanent Disability (as defined
in Section 2.41 of the Plan) of the Participant, provided the
Participant is still employed by the Company as of the date of one of such
specified events.


 


Except as otherwise provided in this Section 3,
the Participant shall immediately forfeit all unvested Restricted Stock on the
date of the Participant’s Termination of Service for any reason prior to the
time the Restricted Stock becomes vested in accordance with this Section 3.  Upon such forfeiture, the Company may, in its
sole discretion in accordance with Section 6.1 of the Plan, elect to,
pay to the Participant, as soon as practicable after the event causing
forfeiture, in cash, an amount equal to the lesser of the total consideration
paid by the Participant for such forfeited shares or the Fair Market Value of
such forfeited shares as of the date of Termination of Service.  Upon any forfeiture, all rights of a
Participant with respect to the forfeited shares of Restricted Stock shall
cease and terminate, without any further obligation on the part of the Company.


 


Notwithstanding
the foregoing, in the event that a Change in Control occurs where the
Participant is Involuntarily Terminated (as defined below) upon or within one
year after such Change in Control, all of the unvested Awarded Shares shall be
fully vested as of the date immediately preceding any such Change in Control or
Termination of Service without Cause.


 


For
purposes of this Section 3, “Involuntary Termination” shall mean (i) without the
Participant’s consent, a material reduction of or variation in the Participant’s
duties, authority or responsibilities relative to the Participant’s duties,
authority or responsibilities as in effect immediately prior to such reduction
or variation; (ii) without the Participant’s consent, a material reduction
in the base salary of the Participant as in effect immediately prior to such
reduction; (iii) without the Participant’s consent, a material reduction
by the Company in the kind or level of employee benefits to which the
Participant was entitled immediately prior to such reduction, with the result
that the Participant’s overall benefits package is materially reduced; or (iv) without
the Participant’s consent, the relocation of the Participant to a facility or a
location more than fifty (50) miles from the Participant’s then present
location.


 


For purposes of this Section 3, “Cause” means, with
respect to Participant (i) acts of fraud or dishonesty in the course of
his employment with or service to the Company or any of its Subsidiaries, (ii) substance
abuse causing harm to the Company or any of its Subsidiaries or impairing the
Participant’s performance of his regular duties, (iii) conviction of a
felony involving moral turpitude, or (iv) insubordination, dereliction of
duties, habitual absenteeism, materially deficient performance after (solely in
the case of this clause (iv)) notice to Participant and Participant’s failure
to correct same within the time period specified in the notice, which time
period shall be not less than 10 business days, or (v) any event described
as “cause” (or in any other term or phrase having similar import) in any
written employment agreement between the Option Holder and the Company (or any
Subsidiary).  A termination by the
Company of Participant’s employment with or services to the Company for any
reason other than as set forth in the above definition of Cause shall be
considered a termination without Cause.


 


4.                                       Restrictions on Transfer.  Subject to the provisions of the Plan and the
terms of this Agreement, the Participant shall not be permitted to sell,
transfer, pledge, assign or otherwise dispose of in any way shares of
Restricted Stock other than by will or the laws of decent and distribution
until the release of such Awarded Shares from these restrictions in accordance
with Section 10 of this Agreement.


 


5.                                       Repurchase Rights.  Notwithstanding any other provision of this
Agreement to the contrary, subject to Section 10 of this Agreement, the
Company shall have the right at any time upon written notice (“Repurchase Notice”)
to the Participant to purchase all of the Awarded Shares, including any
community property interest


 


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relating thereto, at a
purchase price equal to the Fair Market Value on the applicable date of the
Repurchase Notice.  The Repurchase Notice
shall be effective immediately upon the giving of the Repurchase Notice.  The purchase price shall be paid in cash, and
such purchase shall take place at a Closing held within thirty (30) days after
the Repurchase Notice.


 


6.                                       Legend. 
The following legend shall be placed on all certificates representing
Awarded Shares (in addition to any legend required under applicable state
securities laws):


 


On the face of the
certificate:


 


“TRANSFER OF THIS STOCK
IS RESTRICTED IN ACCORDANCE WITH CONDITIONS PRINTED ON THE REVERSE OF THIS
CERTIFICATE.”


 


On the reverse:


 


“THE SHARES OF STOCK
EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AND TRANSFERABLE ONLY IN
ACCORDANCE WITH THAT CERTAIN EXCO RESOURCES, INC. 2005 LONG-TERM INCENTIVE
PLAN, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY IN
DALLAS, TEXAS.  NO TRANSFER OR PLEDGE OF
THE SHARES EVIDENCED HEREBY MAY BE MADE EXCEPT IN ACCORDANCE WITH AND
SUBJECT TO THE PROVISIONS OF SAID PLAN. 
BY ACCEPTANCE OF THIS CERTIFICATE, ANY HOLDER, TRANSFEREE OR PLEDGEE
HEREOF AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SAID PLAN.”


 


All Awarded Shares and
Shares into which Awarded Shares may be converted owned by the Participant
shall be subject to the terms of this Agreement and shall be represented by a
certificate or certificates bearing the foregoing legend.


 


7.                                       Voting; Capital Adjustment(s); No Fractional Shares.  Subject to the terms and conditions of this
Agreement, Participant shall be entitled to vote Shares and to receive any
dividends or other distributions paid on the Shares.  The Shares shall be adjusted, if and as the
board of directors of the Company determines (at the option and in the sole and
absolute discretion of the board of directors of the Company) is appropriate,
to reflect any dividend, distribution, split, recapitalization,
reclassification, exchange, combination, or change in par value in, on, of, or
with respect to all shares of common stock of the Company or resulting from or
in connection with any recapitalization, reclassification, exchange,
combination, merger, reorganization, consolidation, liquidation, or other
restructuring of or by the Company; provided, however, that any
fractional shares resulting from such adjustment shall be eliminated.  Any adjustments determined by the board of directors
of the Company shall be final, binding and conclusive.  No fractional shares of capital stock shall
be issued pursuant to this Agreement. 
The board of directors of the Company may determine whether cash, other
awards, or other property shall be issued or paid in lieu of any fractional
share(s) resulting from any adjustment(s) or whether such fractional shares
and/or any rights thereto shall be forfeited or otherwise eliminated.


 


8.                                       Taxes; 83(b) Election.  The Participant shall be responsible and liable
for the payment of any and all taxes that become due as a result of this
Agreement, the grant or issuance of the Awarded Shares, or as a result of the
transfer or other disposition of the Awarded Shares.  The Company may, at the option and in the sole
and absolute discretion of the Company, no later than the date as of which the
value of any Awarded Shares first becomes includable in the gross income of the
Participant for federal, state, and/or local tax purposes,


 


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either withhold
amount(s), as appropriate, in connection with, or make arrangements with the
Participant regarding the payment of, any federal, state, and/or local taxes of
any kind required by law to be withheld with respect to the restricted stock
grant hereunder.  The Company shall, to
the extent permitted by law, have the right to deduct any such taxes from any
payment of any kind otherwise due to the Participant or require the Participant
to pay to the Company the amount of any such taxes.  If the Participant makes any election under Section 83(b) of
the Internal Revenue Code of 1986, as amended, with respect to the Awarded
Shares, the Participant shall immediately give notice to the Company of such
election.  The Participant shall be solely
responsible for making any such election and the Company shall not be liable
for any such election made or the failure to make such election.


 


9.                                       Notices. 
Any communication(s) to be given hereunder by either party to the other
shall be deemed to have been duly given if given in writing and personally
delivered or sent by mail, registered or certified, postage prepaid with return
receipt requested, or via fax as follows:


 


	
  Company:

  	
  EXCO Resources, Inc.

  	
  Participant:

  	
   

  
	
   

  	
  Attn: Chief Financial
  Officer

  	
   

  	
   

  
	
   

  	
  12377 Merit Drive, Suite 1700

  	
   

  	
   

  
	
   

  	
  Dallas, TX 75251

  	
   

  	
   

  
	
   

  	
  Fax: (214) 368-2087

  	
   

  	
  Fax:

  



 


Notices delivered
personally shall be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of three (3) days after mailing.  A fax shall be deemed communicated on the
date it is actually received.


 


10.                                 Entire Agreement; Modification.  This Agreement terminates, supersedes, and
replaces all prior written and oral agreements between the parties hereto with
respect to the subject matter of this Agreement and constitutes a complete and
exclusive statement of the terms of the agreement by and among the parties
hereto with respect to the subject matter of this Agreement.  This Agreement may not be amended, restated,
supplemented, or otherwise modified except by a written agreement executed by
any and all parties to be charged with or otherwise affected by any such
amendment.


 


11.                                 Assignments, Successors, and No Third-Party Rights.  Neither
this Agreement nor any portion hereof may be assigned by the Participant
without the prior express written consent of the Company.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors, and permitted assigns. 
Nothing expressed or referred to in this Agreement shall be construed to
give any party other than the parties to this Agreement any legal or equitable
right, remedy, or claim under or with respect to this Agreement or any
provision of this Agreement.  This
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and the successors, heirs,
personal representatives, and permitted assigns of the parties hereto.  Neither this Agreement nor any action taken
hereunder shall (a) be construed as giving the Participant any right(s) to
remain in the employ of the Company or any other employment right(s) or (b) interfere
with or restrict in any way the right of the Company to discharge the
Participant as an employee at any time.


 


12.                                 Jurisdiction; Service of Process; Governing Law.  Any action or other proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
may be brought against any of the parties in the courts of the State of Texas
and each of the parties consents to the jurisdiction of such court(s) (and of
the appropriate appellate courts) in any such action or other proceeding and
waives any objection to venue laid therein. 
The validity, construction, interpretation, and effect of this Agreement
shall be exclusively governed by and determined in accordance with the laws of
the State of Texas without regard to conflict of laws principles.  The Company shall not be obligated to issue
any Awarded Shares to the Participant hereunder if


 


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the issuance of such
Awarded Shares may constitute a violation by the Company or the Participant of
any provision of any applicable law or regulation of any governmental
authority.  The obligations and
obligations of the Company and the rights and obligations of the Participant
are subject to all applicable laws, rules, and regulations.


 


13.                                 Severability; Reformation.  In the event that any sentence, paragraph,
provision, section, or article of this Agreement is declared to be void by
a court of competent jurisdiction, such sentence, paragraph, provision,
section, or article shall be deemed severed from the remainder of this
Agreement and the balance of this Agreement shall remain in effect.  In the event any court of competent
jurisdiction holds any provision of this Agreement to be invalid,
unenforceable, and/or unreasonable as written, the court may reform the
Agreement to make it valid, enforceable, and reasonable and the Agreement shall
remain in full force and effect as reformed by the court.


 


14.                                 Fees and Expenses.  If any civil action, whether at law or in
equity, is necessary to enforce or interpret any of the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees, court costs, and other reasonable expenses of litigation, in addition to
any other relief to which such party may be entitled.


 


15.                                 Time of the Essence.  With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.


 


16.                                 Waiver. 
Neither the failure to exercise, nor any delay by any party in
exercising, any right, power, or privilege under this Agreement shall operate
as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege shall preclude any other or
further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege.  To the
maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement may be discharged by one (1) party, in whole or in
part, by a waiver or renunciation of the claim or right unless in writing
signed by each other party hereto, (b) no waiver that may be given by any
party hereto shall be applicable except in the specific instance when and for
which such waiver is given, and (c) no notice to or demand on one (1) party
shall be deemed to be a waiver of any obligation of such party or of the right
of the party giving such notice or demand to take further action without notice
or demand as provided in this Agreement.


 


17.                                 Section Headings; Construction.  The headings of Sections in this Agreement
are provided for convenience only and shall not affect the construction or
interpretation of this Agreement.  All
references to “Section” or “Sections” refer to the corresponding Section or
Sections of this Agreement.  All words
used in this Agreement shall be construed to be of such gender or number as the
circumstances require.  Unless otherwise
expressly provided, the word “including” does not limit the preceding words or
terms.


 


18.                                 Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original copy of this
Agreement and all of which, when taken together, shall be deemed to constitute
one (1) and the same agreement.


 


19.                                 Dispute Resolution;
Arbitration; Emergency Relief.  All claims, disputes, and controversies of
any kind, character, and nature between any parties to this Agreement relating
to or arising out of or in connection with this Agreement or any transaction(s)
contemplated by this Agreement as to the construction, validity,
interpretation, meaning, performance, non-performance, enforcement, operation,
or breach shall be submitted to arbitration pursuant to the following
procedures:


 


(a)                                  After a claim, dispute, or controversy
arises, any such party may, in a written notice delivered to the other party to
this Agreement, demand such arbitration and name the arbitrator (who


 


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shall
be an impartial person) appointed by the demanding party in such notice
together with a statement of the matter(s) claimed or in dispute or
controversy.


 


(b)                                 Within thirty (30) calendar days after
receipt of such demand, the other party to this Agreement shall, in a written
notice delivered to the demanding party, name the arbitrator (who shall be an
impartial person) appointed by the receiving party.  If any party to this Agreement fails to name
and appoint an arbitrator, then the arbitrator of such party shall be named and
appointed by the American Arbitration Association (the “AAA”).  The two arbitrators so appointed shall name
and appoint a third arbitrator (who shall be an impartial person) within thirty
(30) calendar days or, if the two arbitrators so appointed shall fail to name a
third arbitrator within such thirty (30) day period, the third arbitrator shall
be named and appointed by the AAA.  If
any arbitrator appointed hereunder shall die, resign, refuse, or become unable
to act before an arbitration decision is rendered, then the vacancy shall be
filled by the method set forth in this Section 16(b) for the original
appointment of such arbitrator.


 


(c)                                  Each party shall bear its own arbitration
costs and expenses.  The arbitration hearing
shall be held in Dallas, Texas at a location designated by a majority of the
arbitrators.  The Commercial Arbitration Rules of
the American Arbitration Association shall be incorporated by reference at such
hearing and the substantive laws of the State of Texas (without regard
to conflict of laws principles) shall
apply.


 


(d)                                 The arbitration hearing shall be concluded
within ten (10) calendar days unless otherwise ordered by the arbitrators
and a written award thereon shall be made within fifteen (15) calendar days
after the close of submission of evidence. 
An award rendered by a majority of the arbitrators appointed pursuant to
this Agreement shall be final and binding on all parties to the proceeding,
shall resolve the question of costs of the arbitrators and all related matters,
and judgment on such award may be entered and enforced by either party in any
court of competent jurisdiction.


 


(e)                                  Except as set forth in Section 19(g),
the parties to this Agreement agree, intend, and expressly stipulate that the
provisions of this Section 19 shall be a complete defense to any
suit, action, or proceeding instituted in any federal, state, or local court or
before any administrative tribunal with respect to any claim, controversy, or
dispute relating to or arising out of or in connection with this Agreement or
any transaction(s) contemplated by this Agreement.  The arbitration provisions of this Agreement
shall, with respect to any such claim, controversy, or dispute, survive the
termination or expiration of this Agreement.


 


(f)                                    No party to an arbitration may disclose the
existence or results of any arbitration hereunder without the prior express
written consent of the other party to this Agreement nor shall any party to an
arbitration disclose to any third party any confidential information disclosed
by any other party to such arbitration in the course of an arbitration
hereunder without the prior express written consent of such other party.


 


(g)                                 Notwithstanding anything in this Section 19
to the contrary, any party may seek from a court any provisional remedy that
may be necessary to protect any rights or property of such party pending the
establishment of the arbitral tribunal or its determination of the merits of
the claim, controversy, or dispute or to enforce the rights of such party under
this Section 19.


 


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IN WITNESS WHEREOF, the
undersigned parties have executed this Restricted Stock Grant Agreement
effective as of the day and year first above written.


 


	
   

  	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXCO
  RESOURCES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Douglas H. Miller

  
	
   

  	
   

  	
  Title:

  	
  Chairman and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


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