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 Exhibit 10.9  


 
 

  KODIAK OIL AND GAS CORP.
  2007 STOCK INCENTIVE PLAN    
    


 RESTRICTED STOCK UNIT AND PERFORMANCE

AWARD AGREEMENT  


        This RESTRICTED STOCK UNIT AND PERFORMANCE AWARD AGREEMENT (the "Agreement") is made
this                        day
of                                    ,
                        (the "Grant Date"), by and between Kodiak Oil & Gas Corp., a Yukon Territory
corporation (the "Company") and                        , an individual resident
of                        ,
                        ("Participant"), pursuant to the terms of the Kodiak Oil and Gas Corp. 2007 Stock Incentive
Plan (the "Plan"). Terms used but not defined herein shall have the meanings ascribed to them in the Plan. 


        1.    Award of Restricted Stock Units.    Subject to the terms of this Agreement and the Plan, the Company hereby
grants to Participant an award of                        restricted stock units ("RSUs"), representing the right to receive shares
of the Company's common stock, no par value per share ("Common Shares"),
upon the satisfaction of the Performance Conditions set forth on Exhibit A attached hereto ("Exhibit A"). Common Shares issued in settlement of RSUs ("Award Shares") pursuant to this
Agreement shall be subject to the vesting Service Conditions set forth in Sections 3(b) and 3(c). Each RSU represents the
right to receive one Award Share, subject to the vesting requirements and distribution provision of this Agreement and the Plan. The RSUs and the Award Shares are granted under Section 6(c) of
the Plan. A copy of the Plan will be furnished upon request of Participant. 


        2.    Performance Award.    Subject to the terms of this Agreement and the Plan, the Company hereby grants to
Participant a Performance Award ("PA") representing the right to receive an amount equal to the value, determined on the applicable vesting date,
of                                    Common Shares, upon the
satisfaction of the Performance Conditions described in Exhibit A and subject to the vesting Service Conditions in Sections 3(b) and 3(c). The PA is granted under Section 6(d) of
the Plan. The PA will be paid out in cash; provided, however, that the Compensation Committee may, in its sole discretion, elect to settle all or any portion of the PA in Common Shares. 


        3.     Vesting and Forfeiture. 



        (a)    Performance Conditions.    The number of RSUs that become vested on the Determination Date (as defined below)
and the percentage of the PA that will be eligible to become vested (upon the satisfaction of the Service Conditions as described below) will be determined based on the satisfaction of the Performance
Vesting Conditions set forth on Exhibit A. The Performance Period is the period
beginning                                    and
ending                                    . As soon as practical
following the end of the Performance
Period, but in no event later than                                    
(the "Determination Date"), the Compensation Committee will determine, based on the Performance Vesting Matrix attached as Exhibit A, the
number of RSUs that become vested as of the Determination Date, and the percentage of the PA that is eligible to become vested upon satisfaction of the Service Conditions (the "Earned RSUs" and
"Earned PA"). 


        (b)    Service Conditions.    Subject to the terms and conditions of this Agreement, if Participant continues to
provide substantial services to the Company or an Affiliate (as an employee, officer, consultant, independent contractor or director) continuously through the applicable Service Vesting 








 




Date
set forth below, the Award Shares issued in settlement of Earned RSUs in accordance with Section 5 hereof, and the Earned PA, shall vest in installments as follows: 



 






 



			
	On each of the following Service Vesting Dates



 
	 	Percentage of Award Shares and Percentage

of Earned PA that will become Vested 
	
 	
 	

 
	







 	 	







 
	








 	
 	








 
	








 	
 	








 
	








 	
 	








 




 

 
Except
as provided in Section 3(c) below, if Participant ceases to be an employee, officer, consultant, independent contractor or director of the Company or an Affiliate prior to a Service
Vesting Date, all of Participant's rights to unvested Award Shares and any unvested PA shall be immediately forfeited. 


        (c)    Acceleration of Vesting on Death and Disability.    Notwithstanding any other provision of this Agreement, if
Participant dies, or if Participant's employment is terminated due to Disability, prior to the Determination Date, 50 percent (50%) of the total number of RSUs awarded and set forth in
Section 1(a) hereof, and fifty percent (50%) of the total PA awarded and set forth in Section 1(b) hereof, immediately shall become vested, and the remaining unvested RSUs and unvested
portion of the PA immediately shall be forfeited. If Participant dies, or if Participant's employment is terminated due to Disability, on or after the Determination Date, one hundred percent (100%) of
the Award Shares issued or issuable in settlement of Participant's Earned RSUs, and one hundred percent (100%) of Participant's Earned PA (as determined by the Compensation Committee on the
Determination Date, based on the Performance Vesting Matrix) immediately will become vested. For purposes of this Agreement, "Disability" means the incapacity or inability of Participant, whether due
to accident, sickness or otherwise, as determined by a medical doctor acceptable to the Board of Directors of the Company and confirmed in writing by such doctor, to perform the essential functions of
Participant's position, with or without reasonable accommodation (provided that no accommodation that imposes undue hardship on Company will be required) for an aggregate of ninety (90) days
during any period of one hundred eighty (180) consecutive days, or such longer period as may be required under applicable law. 




        4.    Restrictions on Transfer.    Neither the RSUs, the unvested Award Shares, nor the PA may be pledged, alienated,
attached or otherwise encumbered, and any purported pledge, alienation, attachment or encumbrance shall be void and unenforceable against the Company, and no attempt to transfer the RSUs, unvested
Award Shares or the PA, whether voluntary or involuntary, by operation of law or otherwise, shall vest the purported transferee with any interest or right in or with respect to the RSUs, unvested
Award Shares or PA, provided that in the event of Participant's death, payment with respect to Participant's vested RSUs and vested PA will be made to the Participant's representative or to any person
to whom the RSUs and PA have been transferred by will or applicable laws of descent and distribution. 


        5.     Payment and Settlement of RSUs and PA. 



        (a)    PA.    As soon as practical following the vesting of the PA pursuant to Section 3(b) or 3(c), but in all
events on or before March 15th of the year following the year of such vesting, the-then vested portion of Participant's PA shall be paid to Participant or Participant's legal 



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representatives,
beneficiaries or heirs, as the case may be, either in cash or Common Shares, at the sole discretion of the Compensation Committee, subject to satisfaction of applicable tax
withholdings. 


        (b)    RSUs.    As soon as practical following the Determination Date, but in all events on or before
March 15th of the following year, subject to satisfaction of applicable tax withholdings, Award Shares shall be issued and distributed to Participant or Participant's legal
representatives, beneficiaries or heirs, as the case may be, which Award Shares shall be restricted from transfer until such time as the respective Award Shares have vested pursuant to
Section 3(b) or Section 3(c), and certificates representing such Award Shares shall be issued, as follows: 



          (i)  With
respect to certificates representing Award Shares that have vested pursuant to Section 3(b) or 3(c), such certificates shall be registered in the name of
Participant or in the name of Participant's legal representatives, beneficiaries or heirs, as the case may be, evidencing such vested whole Award Shares (less any shares withheld to pay withholding
taxes) and delivered to Participant or Participant's legal representatives, beneficiaries or heirs, as the case may be; and 


         (ii)  With
respect to certificates representing Award Shares that have not yet vested pursuant to Section 3(b) or 3(c), such certificates shall (i) be
registered in the name of Participant and held by the Secretary of the Company or an agent selected by the Secretary of the Company to provide such services for the Plan and (ii) contain a
legend to the effect that such unvested Award Shares are subject to applicable restrictions from transfer and shall be subject to an appropriate stop-transfer order. As soon as practical
after such Award Shares have vested pursuant to Section 3(b) or 3(c), the Company shall cause to be issued a certificate or certificates, registered in the name of Participant or in the name of
Participant's legal representatives, beneficiaries or heirs, as the case may be, evidencing such vested whole Award Shares (less any shares withheld to pay withholding taxes) and shall cause such
certificate or certificates to be delivered to Participant or Participant's legal representatives, beneficiaries or heirs, as the case may be, free of the legend or the stop-transfer order
referenced above. 




        (c)   Notwithstanding
any other provision of this Agreement, if any RSUs shall vest under Section 3(c) prior to the Determination Date, then as soon as practical
following such vesting, but in all events on or before March 15th of the following year, subject to satisfaction of applicable tax withholdings, vested Award Shares issuable pursuant to
such vested RSUs shall be issued and delivered to, and registered in the name of Participant, or Participant's legal representatives, beneficiaries or heirs as the case may be. The value of any
fractional Award Shares shall be paid in cash at the time certificates evidencing the Award Shares are delivered to Participant. 




        6.    Adjustments.    The RSUs and Award Shares shall be subject to adjustment, in accordance with Section 4(c)
of the Plan, in the event that any distribution, stock split, reverse stock split, recapitalization, reorganization, merger, combination or other event covered by Section 4(c) of the Plan shall
occur, and if Participant's RSUs or Award Shares are so adjusted, Participant's PA will be subject to the same proportional adjustment. 


        7.     Miscellaneous. 



        (a)    Income Tax Matters.    In order to comply with all applicable federal or state income tax laws or regulations,
the Company may take such action as it deems appropriate to ensure that all applicable federal or state payroll, withholding, income or other taxes, which are the sole and absolute responsibility of
Participant, are withheld or collected from Participant. In accordance with the terms of the Plan, and such rules as may be adopted by the Committee under the Plan, Participant may elect to satisfy
Participant's federal and state income tax withholding obligations 



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arising
from the delivery or vesting of Award Shares and from the delivery of Common Shares or cash in settlement of Participant's vested PA, by (i) delivering cash, check (bank check,
certified check or personal check) or money order payable to the Company, (ii) having the Company withhold a portion of the Common Shares or cash otherwise to be delivered having a Fair Market
Value equal to the minimum amount required to satisfy applicable tax withholding, or (iii) delivering to the Company Common Shares already owned by Participant having a Fair Market Value equal
to the amount of such taxes. Participant's election must be made on or before the date that the amount of tax to be withheld is determined. The Company will not deliver any fractional Common Shares
under this Agreement but will pay, in lieu thereof, the Fair Market Value of such fractional Common Shares. 


        (b)    Plan Provisions Control.    If any provision of the Agreement conflicts with or is inconsistent in any respect
with the terms of the Plan, the terms of the Plan shall control. 



        (c)    No Right to Employment.    The issuance of the RSUs, Award Shares and PA shall not be construed as giving
Participant the right to be retained in the employ of the Company or an Affiliate, nor will it affect in any way the right of the Company or an Affiliate to terminate such employment or position at
any time, with or without cause in accordance with applicable law. In addition, the Company or an Affiliate may at any time dismiss Participant from employment, free from any liability or any claim
under the Plan or the Agreement. Nothing in the Agreement shall confer on any person any legal or equitable right against the Company or any Affiliate, directly or indirectly, or give rise to any
cause of action at law or in equity against the Company or an Affiliate. The Award granted hereunder shall not form any part of the wages or salary of Participant for purposes of severance pay or
termination indemnities, irrespective of the reason for termination of employment. Under no circumstances shall any person ceasing to be an employee of the Company or any Affiliate be entitled to any
compensation for any loss of any right or benefit under the Agreement or Plan which such employee might otherwise have enjoyed but for termination of employment, whether such compensation is claimed
by way of
damages for wrongful or unfair dismissal, breach of contract or otherwise. By participating in the Plan, Participant shall be deemed to have accepted all the conditions of the Plan and the Agreement
and the terms and conditions of any rules and regulations adopted by the Committee (as defined in the Plan) and shall be fully bound thereby. 



        (d)    Governing Law.    The validity, construction and effect of the Plan and the Agreement, and any rules and
regulations relating to the Plan and the Agreement, shall be determined in accordance with the internal laws, and not the law of conflicts, of the state of Colorado. 


        (e)    Securities Matters.    The Company shall not be required to deliver Common Shares pursuant to this Agreement
until the requirements of any federal or state securities or other laws, rules or regulations (including the rules of any securities exchange) as may be determined by the Company to be applicable are
satisfied. 


        (f)    Severability.    If any provision of the Agreement is or becomes or is deemed to be invalid, illegal or
unenforceable in any jurisdiction or would disqualify the Agreement under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws,
or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the purpose or intent of the Plan or the Agreement, such provision shall be
stricken as to such jurisdiction or the Agreement, and the remainder of the Agreement shall remain in full force and effect. 



        (g)    No Trust or Fund Created.    Neither the Plan nor the Agreement shall create or be construed to create a trust
or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and Participant or any other person. To the extent that any Person acquires a right to receive payments
from the Company or any Affiliate pursuant to an Award, 



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such
right shall be no greater than the right of any unsecured general creditor of the Company or any Affiliate. 



        (h)    Headings.    Headings are given to the Sections and subsections of the Agreement solely as a convenience to
facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Agreement or any provision thereof. 


        (i)    Section 409A.    It is intended the RSUs, Award Shares, PA and any Common Shares issued in settlement of
the PA granted pursuant to this Agreement will be exempt from Section 409A of the Code under the short term deferral rule. If and to the extent that the RSUs, Award Shares, PA and any Common
Shares issued in settlement of the PA are determined by the Committee to be subject to
Section 409A of the Code, the terms of this Agreement will be construed in accordance with Section 409A of the Code. In such case, the words "termination of employment" and similar terms
will be construed to mean "separation from service" in accordance with Section 409A of the Code and applicable guidance, and any payments made as a result of the acceleration of vesting and
payment upon Participant's separation from service (for example, as a result of separation from service due to Disability) shall be delayed until a date that is six months and one day following
Participant's separation from service, to the extent required, if Participant is a specified employee as determined under Section 409A of the Code on the date of Participant's separation from
service. 



(Signature page follows)


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        IN WITNESS WHEREOF, the Company and Participant have executed this Restricted Stock Unit and Performance Award Agreement on the date set
forth in the first paragraph. 

 






 



					
	

 	
 	
 KODIAK OIL & GAS CORP.
	

 	
 	
 By:	
 	
  







 
	 	 	Name:	 	







 
	 	 	Title:	 	







 
	

 	
 	
 PARTICIPANT
	
 	
 	








 
	 	 	Name:	 	







 




 

 





 




































  EXHIBIT A  


 PERFORMANCE VESTING MATRIX  


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KODIAK OIL AND GAS CORP. 2007 STOCK INCENTIVE PLAN