exv10w38







Exhibit 10.38




ARMSTRONG LAND COMPANY, LLC

RESTRICTED UNIT AWARD AGREEMENT




     This
Restricted Unit Award Agreement (the “Agreement”) is made this 1st day of
June, 2011 (the “Effective Date”), between ARMSTRONG LAND COMPANY,
LLC, a Delaware limited liability company (the “Company”), and Kenny Allen, an employee of the
Company (“Employee”).



     WHEREAS, the Company desires to afford Employee the opportunity to obtain Units of Membership
Interest in the Company valued at $100.00 per Unit; and



     WHEREAS, capitalized terms used herein and not otherwise defined shall have those meanings
assigned to them in the Company’s Amended and Restated Limited Liability Company Agreement dated
March 7, 2007, as amended, as amended by Amendment No. 1 thereto dated as of May 31, 2007,
Amendment No. 2 thereto dated as of March 31, 2008, Amendment No. 3 thereto dated as of June 6,
2008, the Addendum Agreement thereto dated October 1, 2008 and Amendment No. 4 thereto dated May 6,
2009 including all exhibits thereto (the “LLC Agreement”)



     NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other
good and valuable consideration, the parties hereto agree as follows:



     1. Grant of Award. Subject to Employee’s execution of the Addendum Agreement (as
defined in the LLC Agreement), and if applicable, Employee’s spouse’s execution of the Spousal
Consent (as set forth in the LLC Agreement), the Company hereby grants to Employee as of the
Effective Date an aggregate of 2,000 Units, such number of Units being subject to adjustment as
provided in Paragraph 7 hereof, and on the terms and conditions herein set forth. The Units granted
pursuant to this Agreement are granted as restricted membership units and are subject to vesting
and forfeiture as provided herein (the “Restricted Units”).



     2. Restricted Period. Except as otherwise provided in Paragraph 6, 100% of the
Restricted Units shall vest on April 1, 2013; provided that Employee is continually employed by the
Company or any of its Affiliates commencing on the Effective Date through April 1, 2013.



     3. Notation of Units. The Units are uncertificated. The Restricted Units will be
recorded on the books and records of the Company and are considered as held by the Company in
escrow for Employee’s benefit until such time as the Restricted Units are either forfeited by
Employee to the Company or the restrictions thereon terminate as set forth in this Agreement. If
the restrictions terminate as set forth in this Agreement, the books and records of the Company
will be changed to reflect the release of the Restricted Units from escrow to Employee.



     4. Forfeiture. All Restricted Units granted pursuant to this Agreement that have not
vested in accordance with Paragraph 2 or Paragraph 6, as the case may be, shall be forfeited to the
Company upon the date Employee is no longer employed by the Company or any of its Affiliates, and
such forfeiture shall be reflect on the books and records of the Company.



 









 





     5 Taxes.




	 	(a)	 	Participant may elect, within 30 days of the Effective Date and on notice to the
Company, to realize income for federal income tax purposes equal to the fair
market value of the Restricted Units on the Effective Date by making an election
under Section 83(b) of the Internal Revenue Code of 1986, as amended. In such
event, Employee shall make arrangements satisfactory to the Company to pay at
the time required by applicable law any federal, state or local taxes required to be
withheld with respect to such Restricted Units.
	 
	 	(b)	 	If no election is made by Employee pursuant to Paragraph 5(a) hereof, then upon
vesting of the Restricted Units, Employee (or in the event of Employee’s death,
the administrator or executor of Employee’s estate) will pay to the Company, or
make arrangements satisfactory to the Company regarding payment of, any
federal, state or local taxes of any kind required by law to be withheld with
respect to the Restricted Units.
	 
	 	(c)	 	Any provision of this Agreement to the contrary notwithstanding, if Employee
does not satisfy his obligations under subparagraphs (a) or (b) of this Section, the
Company shall, to the extent permitted by law, have the right to deduct from any
payments made under this Agreement or the LLC Agreement, including the
withholding of Restricted Units, regardless of the form of such payment, or from
any other compensation payable to Employee, whether or not pursuant to this
Agreement or the LLC Agreement and regardless of the form of payment, any
federal, state or local taxes of any kind required by law to be withheld with
respect to the Restricted Units.





     6. Acceleration of Vesting Date.




	 	(a)	 	Notwithstanding the provisions of Paragraph 2 above relating to the vesting
period, all of the Restricted Units shall be fully vested upon (i) a Change of
Control; provided that Employee has remained continually employed by the
Company or any of its Affiliates commencing on the Effective Date through the
effective date of the Change of Control, or (ii) the involuntary termination of
Employee’s employment by the Company for reason other than Cause.
	 
	 	(b)	 	For purposes of this Agreement a “Change of Control” shall mean any person or
group of persons (as defined in Rule 13d-5 under the Securities Exchange Act of
1934, as amended) together with such person or its Affiliates, becoming the
owner, directly or indirectly, of 51% or more of the total fair market value or total
voting power of the Company; provided that if one or more persons acting as a
group currently owns more than 51% of the Company, the acquisition of
additional Units by the same person or persons is not considered to cause a
Change in Control.
	 
	 	(c)	 	For purposes of this Agreement, “Cause” shall mean:




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	 	(i)	 	the failure by Employee to substantially perform his duties as an officer of
the Company (other than any such failure resulting from Employee’s
Disability);
	 
	 	(ii)	 	any misconduct in the course and scope of Employee’s employment,
including but not limited to dishonesty, disloyalty, disorderly conduct,
insubordination, harassment of other employees or third parties, abuse of
alcohol or controlled substances or other violations of the Company’s
rules;
	 
	 	(iii)	 	Employee’s conviction of a felony or other crime involving moral
turpitude; or
	 
	 	(iv)	 	any material breach or violation of any agreement between Employee and
the Company including, without limitation, the LLC Agreement.






	 	(d)	 	For purposes of this Agreement, a “Disability” shall be deemed to have occurred
when:






	 	(i)	 	Employee is determined to be eligible to receive long-term disability
benefits under either Social Security or the Company’s long-term
disability plan, if any;
	 
	 	(ii)	 	the Board of Managers of the Company (the “Board”), upon the written
report of a qualified physician designated by the Board or its insurers,
shall have determined (after a complete physical examination of Employee
at any time after he has been absent from the Company for a period of at
least 120 calendar days since the date of this Agreement), that Employee
has become physically and/or mentally incapable of performing his
essential job functions with or without reasonable accommodation as
required by law; or
	 
	 	(iii)	 	Employee is otherwise unable for a continuous period of 180 calendar
days to perform his’ essential job functions with or without reasonable
accommodation as required by law due to injury, illness, or other
incapacity (physical or mental).






	 	(e)	 	The determination of whether Cause or a Disability exists shall be made by the
Board in its good faith and sole discretion and shall be conclusive. If the Board
believes that Cause exists for terminating Employee’s employment and forfeiting
all unvested Restricted Units, it shall give Employee written notice of the acts or
omissions constituting Cause, and no termination of employment and related
forfeiture of unvested Restricted Units shall be effective unless and until
Employee fails to cure such acts or omissions within 10 calendar days after
receiving such notice, unless such acts or omissions cannot reasonably be cured
within such 10 day period.




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     7. Adjustments of Units Subject to Award. If any Units shall at any time be changed or
exchanged by reason of reorganization, merger, consolidation or recapitalization, then the
aggregate number of Restricted Units subject to this Agreement shall be automatically adjusted such
that Employee’s proportionate interest shall be maintained as before the occurrence of such event.
The determination of any such adjustment by the Company shall be final, binding and conclusive.
Units distributed in connection with or resulting from any such adjustment with respect to
Restricted Units that have not yet vested shall enjoy the same privileges and be subject to the
same restrictions pursuant to this Agreement that are applicable to the related Restricted Units.



     8. No Contract for Employment, Notwithstanding anything to the contrary contained
herein, this Agreement does not constitute a contract for employment and shall not affect the right
of the Company to terminate Employee’s employment for any reason whatsoever or for no reason.



     9. Restrictions on Transfer. None of the Restricted Units may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of prior to vesting. Upon vesting, the
Restricted Units are subject to the restrictions on transfer set forth in the LLC Agreement, the
terms of which are incorporated herein by reference.



     10. Rights as Member. Employee shall be the record owner of the Restricted Units until
or unless such Restricted Units are forfeited pursuant to Paragraph 4 hereof, and as record owner
shall be entitled to the rights and subject to all of the obligations of a member of the
Company subject to the terms and conditions of the LLC Agreement. Without limiting the
generality of the foregoing, prior to vesting (i) Employee shall not be entitled to any voting
rights with respect to the Restricted Units, and (ii) the Restricted Units shall be subject to the
limitations on transfer set forth in Paragraph 9 hereof.



     11. Restriction on Issuance of Units. The Company shall not be required to issue Units
covered by this Agreement prior to the obtaining of any approval from any governmental agency that
the Company shall, in its sole discretion, determine to be necessary or advisable, and the
completion of any registration or other qualification of such Units or their offering or sale under
any state or federal law or ruling or regulations of any governmental body that the Company shall,
in its sole discretion, determine to be necessary or advisable. In addition, if the offering and
sale of Units reserved for issuance pursuant to this Agreement shall not then be registered under
the Securities Act of 1933, as amended, the Company may, upon Employee’s receipt of Units issued
pursuant to this Agreement, require Employee or his permitted transferee to represent in writing
that the Units being acquired are for investment and not with a view to distribution.



     12. Acknowledgment. Employee acknowledges that Thompson & Knight LLP has not
represented such Employee in connection with the preparation and negotiation of this Agreement, and
such counsel shall owe no duties directly to Employee. Employee confirms that Employee has been
advised to consult with Employee’s own attorney regarding legal matters concerning the Company and
to consult with independent tax advisors regarding the tax consequences of receiving the Restricted
Units.



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     13. Binding Effect. This Agreement shall be binding upon the heirs, executors,
administrators, and successors of the parties hereto.



     14. Modification. No change or modification of this Agreement shall be valid or
binding upon the parties unless the change or modification is in writing and signed by the parties;
provided, however, that the Company may change or modify this Agreement without Employee’s consent
or signature if the Company determines, in its sole discretion, that such change or modification is
necessary or desired for purposes of compliance with or exemption from the requirements of Section
409A of the Internal Revenue Code of 1986, as amended, or any regulations or other guidance issued
thereunder.



     15. Governing Instrument and Law. This Agreement shall be governed by the laws
of the State of Delaware, without regard to its conflict of laws principles.



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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.



	 	 	 	 	 
	 	ARMSTRONG LAND COMPANY, LLC

 	 
	 	By:  	/s/ Martin D. Wilson
 	 
	 	 	Martin D. Wilson, President 	 



	 	 	 	 	 
	 	EMPLOYEE:

 	 
	 	/s/ Kenny Allen
 	 
	 	Kenny Allen 	 
	 	 	 
	 



Restricted Unit Award Agreement

Signature Page