Exhibit 10.4


Dakota Plains Holdings, Inc.


2011 EQUITY INCENTIVE PLAN
 
Restricted
Stock Agreement  


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
 Full
 Name of Employee:

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
 No.
 of Shares of Common Stock Covered:

 	
  

 	
 Date
 of Issuance:

 
	
  

 	
  

 	
  

 
	
 Vesting
 Schedule:

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
 

 Vesting Date*

 	
 No.
 of Shares Which

 Become Vested (Cumulative)

 
	
  

 	
  

 	
  

 
	
  

 
	
  

 	
  

 	
  

 
	
  

 
	
  

 	
  

 	
  

 
	
  

 
	
   *  Provided,
 however, that all Shares subject to this Agreement will vest immediately in
 full upon the terms described in Section 3 of this Agreement.

 



          This
Restricted Stock Agreement is made between Dakota Plains Holdings, Inc. (the “Company”),
and the employee identified above (the “Employee”) effective as of
the date of issuance specified above (the “Effective Date”).


	
  

 	
  

 	
  

 
	
  

 	
 A.

 	
 The Company desires to
 give the Employee an inducement to acquire a proprietary interest in the
 Company and an added incentive to advance the interests of the Company by
 granting the Employee restricted shares of Common Stock of the Company (the “Shares”),
 on the terms and conditions and subject to the restrictions set forth herein;
 and

 
	
  

 	
  

 	
  

 
	
  

 	
 B.

 	
 The Company and the
 Employee desire to enter into this Agreement to set forth the terms and
 conditions of such grant.

 
	
  

 	
  

 
	
  

 	
 Now, therefore, the
 Company and the Employee mutually agree as follows:

 






	
  

 	
  

 
	
 1.

 	
 Grant of Restricted Stock.

 


          (a)          Subject
to the terms and conditions of this Agreement, the Company has granted to the
Employee the number of Shares specified at the beginning of this Agreement.
Such Shares are subject to the restrictions provided for in this Agreement and
are referred to collectively as the “Restricted Shares” and each as a “Restricted
Share.”


          (b)          Each
Restricted Share will be evidenced by a duly issued stock certificate (which
may represent more than one Restricted Share) registered in the name of the Employee.
The Employee will have all rights of a shareholder of the Company with respect
to each Restricted Share (including the right to





receive
dividends and other distributions, if any). However, all restrictions provided
for in this Agreement will apply to each Restricted Share and to any other
securities distributed with respect to such Restricted Share. No Restricted
Share may be sold, transferred, pledged, hypothecated or otherwise encumbered
or disposed of until such Restricted Share has vested in the Employee in
accordance with all terms and conditions of this Agreement. Each Restricted
Share will remain restricted and subject to forfeiture to the Company unless
and until such Restricted Share has vested in the Employee in accordance with
all of the terms and conditions of this Agreement. Each stock certificate
evidencing any Restricted Share may contain such legends and stock transfer
instructions or limitations as may be determined or authorized by the Company
in its sole discretion. The Company may, in its sole discretion, retain custody
of any such certificate throughout the period during which any restrictions are
in effect and require, as a condition to issuing any such certificate, that the
Employee tender to the Company a stock power duly executed in blank relating to
such custody.


	
  

 	
  

 
	
 2.

 	
 Normal
 Vesting. If the
 Employee remains continuously employed by the Company or a parent or
 subsidiary thereof, then the Restricted Shares will vest in the numbers and
 on the dates specified in the Vesting Schedule at the beginning of this
 Agreement. 

 
	
  

 	
  

 
	
 3.

 	
 Accelerated
 Vesting.
 Notwithstanding Section 2 of this Agreement, the Restricted Shares will
 vest immediately upon a Change in Control as defined in Section 5 of
 this Agreement if the Employee has been continuously employed by the Company
 or a parent or subsidiary thereof through the date immediately prior to the
 occurrence of a Change in Control.

 
	
  

 	
  

 
	
 4.

 	
 Issuance
 of Unrestricted Shares. Upon the vesting of any Restricted Shares,
 such vested Restricted Shares will no longer be subject to forfeiture as
 provided in Section 6 of this Agreement, but will continue to be subject
 to the provisions of Section 8 of this Agreement.

 
	
  

 	
  

 
	
 5.

 	
 Change
 in Control. A “Change in
 Control” of the Company means the following:

 


          (a)          The
acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) of beneficial ownership (within the meaning
of Exchange Act Rule 13d-3) of 30% or more of either (i) the then
outstanding Shares (the “Outstanding Company Common Stock”) or
(ii) the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of the Board of
Directors of the Company (the “Outstanding Company Voting Securities”);
provided, however, that the following acquisitions will not constitute a Change
in Control:


                    (1)          any
acquisition of Shares or voting securities of the Company directly from the
Company (excluding any acquisition resulting from the exercise of a conversion
or exchange privilege with respect to outstanding convertible or exchangeable
securities unless such outstanding convertible or exchangeable securities were
acquired directly from the Company);


                    (2)          any
acquisition of Shares or voting securities of the Company by the Company, any
of its wholly owned subsidiaries, or any shareholder of the Company as of the
Effective Date;


                    (3)          any
acquisition of Shares or voting securities of the Company by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
of its subsidiaries, or


                    (4)          any
acquisition by any corporation with respect to which, immediately following
such acquisition, more than 70% of, respectively, the then outstanding shares
of common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly,
by 


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all
or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such acquisition in
substantially the same proportions as was their ownership, immediately prior to
such acquisition, of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be;


          (b)          The
individuals who constitute the Incumbent Directors cease for any reason to
constitute at least a majority of the Board of Directors of the Company (the “Board”),
with the term “Incumbent Directors” meaning (1) the members of the
Board as of the Effective Date, and (2) any individual who becomes a
member of the Board after such date whose election, or nomination for election
by the shareholders of the Company, was approved by the vote of at least a
majority of the then Incumbent Directors, but excluding any individual whose
initial assumption of office as a director of the Company occurs as a result of
an actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board;


          (c)          Approval
by the shareholders of the Company of a reorganization, merger, consolidation
or statutory exchange of Outstanding Company Voting Securities, unless,
immediately following such reorganization, merger, consolidation or exchange,
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such reorganization,
merger, consolidation or exchange beneficially own, directly or indirectly,
more than 70% of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the
corporation resulting from such reorganization, merger, consolidation or
exchange in substantially the same proportions as was their ownership,
immediately prior to such reorganization, merger, consolidation or exchange, of
the Outstanding Company Common Stock and Outstanding Company Voting Securities,
as the case may be; or


          (d)          Approval
by the shareholders of the Company of (1) a complete liquidation or
dissolution of the Company or (2) the sale or other disposition of all or
substantially all of the assets of the Company, other than to a corporation
with respect to which, immediately following such sale or other disposition,
more than 70% of, respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition
in substantially the same proportion as was their ownership, immediately prior
to such sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be.


Notwithstanding
the above, a Change in Control shall not be deemed to occur with respect to the
Employee if the acquisition of the 30% or greater interest referred to in
paragraph (1) is by a group, acting in concert, that includes the Employee
or if at least 30% of the then outstanding common stock or combined voting
power of the then outstanding voting securities (or voting equity interests) of
the surviving corporation or of any corporation (or other entity) acquiring all
or substantially all of the assets of the Company shall be beneficially owned,
directly or indirectly, immediately after a reorganization, merger,
consolidation, statutory share exchange or disposition of assets referred to in
paragraphs (3) or (4) by a group, acting in concert, that includes the
Employee.


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 6.

 	
 Forfeiture. If (a) the Employee’s employment
 with the Company, or a parent or subsidiary thereof, is terminated for any
 reason, whether by the Company with or without cause, voluntarily or
 involuntarily by the Employee or otherwise, or (b) the Employee attempts
 to transfer or otherwise dispose of any of the Restricted Shares or the
 Restricted Shares become subject to attachment or any similar involuntary
 process, in violation of this Agreement, then any Restricted Shares that have
 not previously vested (including pursuant to Section 3 of this
 Agreement) will be forfeited by the Employee to the Company, the Employee
 will thereafter have no right, title or interest whatever in such Restricted
 Shares, and, if the Company does not have custody of any and all certificates
 representing Restricted Shares so forfeited, the Employee must immediately
 return to the Company any and all certificates representing Restricted Shares
 so forfeited. Additionally, the Employee must deliver to Company a stock
 power duly executed in blank relating to any and all certificates
 representing Restricted Shares forfeited to the Company in accordance with
 the previous sentence or, if such stock power has previously been tendered to
 the Company, the Company will be authorized to deem such previously tendered
 stock power delivered, and the Company will be authorized to cancel any and
 all certificates representing Restricted Shares so forfeited and issue and
 deliver to the Employee a new certificate for any Shares which vested prior
 to forfeiture.

 
	
  

 	
  

 
	
 7.

 	
 Lock-Up. If requested by the Company in connection
 with any registration of the offering of any securities of the Company under
 the Securities Act of 1933, as amended (the “Securities Act”), the
 Employee will not sell or otherwise transfer any securities of the Company
 during the 180-day period (or such other period as may be requested in
 writing by the managing underwriter of such offering and agreed to in writing
 by the Company) (the “Market Standoff”) following the
 effective date of a registration statement of the Company filed under the
 Securities Act. Such restrictions will apply only to the first registration
 statement of the Company to become effective under the Securities Act that
 includes securities to be sold on behalf of the Company to the public in an
 underwritten public offering under the Securities Act. The Company may impose
 stop transfer instructions with respect to securities subject to the
 foregoing restrictions until the end of such Market Standoff.

 
	
  

 	
  

 
	
 8.

 	
 Transfer
 Restrictions.

 


          (a)          The
Employee understands that, notwithstanding the vesting of the Restricted Shares
under Sections 2 and 3 of this Agreement, none of the Shares issued to the
Employee pursuant to this Agreement have been (nor are anticipated to be)
registered under the Securities Act, or any state securities laws, in reliance
upon exemptions from registration. The Shares, therefore, cannot be sold unless
they are subsequently registered under the Securities Act or the Employee
obtains an opinion of counsel satisfactory to the Company that such sale may be
effected without violation of applicable federal or state securities laws.


          (b)          The
Company is not required (1) to transfer on its books any Shares that have
been sold or otherwise transferred in violation of any of the provisions of
this Agreement or (2) to treat as owner of such Shares or to accord the
right to vote or pay dividends to any transferee to whom such Shares have been
so transferred.


	
  

 	
  

 
	
 9.

 	
 Limitation
 on Change in Control Payments. Notwithstanding anything in this Agreement to the contrary, if,
 with respect to the Employee, the acceleration of the vesting of Restricted
 Shares as provided in Section 3 of this Agreement (which acceleration
 could be deemed a “payment” within the meaning of Section 280G(b)(2) of
 the Internal Revenue Code of 1986, as amended (the “Code”)), together with any
 other payments which the Employee has the right to receive from the Company
 or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a)
 of the Code without regard to Section 1504(b) of the Code) of which the
 Company is a member, would constitute a “parachute payment” (as defined in

 


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 Section 280G(b)(2) of the Code), then the “payments” to the Employee
 will be reduced to the largest amount as will result in no portion of such
 “payments” being subject to the excise tax imposed by Section 4999 of
 the Code. Without limiting the prior sentence, the Employee will have the
 discretion to determine which “payments” will be reduced so that no portion
 of such “payments” are subject to the excise tax imposed by Section 4999
 of the Code. Notwithstanding anything to the contrary in this Section 9,
 if the Employee is subject to a separate agreement with the Company that
 expressly addresses the potential application of Section 280G or 4999 of
 the Code (including, without limitation, that “payments” under such agreement
 or otherwise will be reduced, that such “payments” will not be reduced or
 that such “payments” will be “grossed up” for tax purposes), then this
 Section 9 will not apply, and any “payments” to the Employee pursuant to
 Section 3 of this Agreement will be treated as “payments” arising under
 such separate agreement.

 
	
  

 	
  

 
	
 10.

 	
 Employment. This Agreement does not give the Employee
 any right to continued employment with the Company or any parent or
 subsidiary thereof, and the Company or any parent or subsidiary thereof
 employing the Employee may terminate such employment or otherwise treat the
 Employee without regard to the effect it may have upon the Employee or any
 Restricted Shares under this Agreement.

 
	
  

 	
  

 
	
 11.

 	
 Tax
 Withholding. The
 parties to this Agreement recognize that the Company or a parent or
 subsidiary of the Company may be obligated to withhold federal and state
 income taxes or other taxes upon the vesting of the Restricted Shares, or, in
 the event that the Employee elects under Section 83(b) of the Code to
 report the receipt of the Restricted Shares as income in the year of receipt,
 upon the Employee’s receipt of the Restricted Shares. The Employee agrees
 that, at such time, if the Company or a parent or subsidiary is required to
 withhold such taxes, the Employee will promptly pay in cash upon demand to
 the Company, or the parent or subsidiary having such obligation, such amounts
 as shall be necessary to satisfy such obligation.

 
	
  

 	
  

 
	
 12.

 	
 Miscellaneous. This Agreement is binding in all respects
 on the Employee’s heirs, representatives, successors and assigns. This
 Agreement will be governed by and construed in accordance with the laws of
 the State of Minnesota. This Agreement contains all terms and conditions with
 respect to the subject matter hereof and no amendment, modification or other
 change hereto will be of any force or effect unless and until set forth in a
 writing executed by the Employee and the Company.

 


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          The
Employee and the Company have executed this Agreement as of the Effective Date.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 
	
  

 	
     ____________________,
 Employee

 
	
  

 	
  

 
	
  

 	
 DAKOTA PLAINS HOLDINGS, INC.

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
      Its

 	
  

 


[Signature
Page to Restricted Stock Agreement]