Unassociated Document


    Ex.
10.5

    PUDA
COAL, INC.

    2008
Equity Incentive Plan

    Restricted
Stock Unit Director Grant Agreement


     

    This
Restricted Stock Unit Director Grant Agreement (the “Agreement”) is
entered into between Puda Coal, Inc., a Florida corporation (the “Company”), and
________ (the “Director”).

     

    Pursuant
to the terms of the 2008 Equity Incentive Plan (the “Plan”) the Company hereby
awards to Director restricted stock units (“Restricted Stock
Units”) on the terms and conditions as set forth in this Agreement and
the Plan.  The grant date for this award is ________ (the “Grant
Date”).  Capitalized terms used but not defined in this
Agreement shall have the meaning specified in the Plan.

     

    In
consideration of the mutual promises set forth below, the parties hereto agree
as follows:

     

    1.      Award of Restricted Stock
Units.  Subject to the terms and conditions of this Agreement
and the Plan (the terms of which are incorporated herein by reference) and
effective as of the Grant Date, the Company hereby grants to the
Director                  Restricted
Stock Units.  The Restricted Stock Units relate on a one-for-one basis
to shares of the Company’s Common Stock (each such share, adjusted in accordance
with Section 14 of the Plan, a “Share”).

     

    2.      Vesting.  Restricted
Stock Units vest (meaning that the Director’s right to the Restricted Stock
Units become nonforfeitable and no longer subject to any service requirement) in
two equal installments on       
            and
[every/the] six-month anniversary thereafter (each such date, a “Vesting Date”),
provided that with respect to each Vesting Date the Director remains in
continuous service on the Company’s Board of Directors (the “Board”) from the
Grant Date through the Vesting Date.  The period between the Grant
Date and the earlier of (a) the second Vesting Date referred to in the preceding
sentence (b) the Termination Date (defined in Section 3 below), and (c) the date
the Restricted Stock Unit terminates under Section 5 below in conjunction with
Section 14(c) of the Plan (such date, the “Change in Control Date”) is referred
to as the “Restricted Period.”

     

    3.      Effect of Termination of
Service; Forfeiture.  If the Director’s service as a member of
the Board terminates for any reason or under any circumstances (including death
or disability), the Director will vest in a pro rata portion of the Restricted
Stock Units through the date of such service termination (the “Termination
Date”) so that he or she will be treated as vested in that number of Restricted
Stock Units that vested on each Vesting Date occurring prior to the Termination
Date plus that additional number of Restricted Stock Units as he or she would
have been vested in as of the Termination Date if the award had been subject to
daily vesting for the 365-day period beginning on the last preceding Vesting
Date and ending on the Termination Date and the remainder of the Restricted
Stock Units shall be forfeited.  Upon forfeiture of Restricted Stock
Units, the portion of the award so forfeited shall terminate and the Company
shall have no obligation to issue any Shares in settlement of that portion of
the award.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4.      Distribution.  Subject
to any limitations set forth in this Agreement (including Sections 7 and 17) and
the Plan, and subject to any deferral election made pursuant to Section 5 below,
a number of Shares of Common Stock will be issued (“distributed”) to the
Director in settlement of this Restricted Stock Unit equal to the number of
then-vested Restricted Stock Units on (or as soon as practicable after, but in
no later event later than the date that is forty-five (45) days after) the
earlier of (a) the Vesting Date, (b) the Termination Date, or (c) the Change in
Control Date (the earlier of such dates, and without regard to any deferral of
such date pursuant to Section 5, the “Distribution Date”).  Subject to
any deferral election made pursuant to Section 5 below, upon or as soon as
practicable following the Distribution Date, stock certificates (including
electronic representations of the same, the “Certificate”) evidencing the Shares
issued upon settlement of vested Restricted Stock Units shall be issued and
registered in the Director’s name and delivered to (or appropriate notice in the
case of electronic Certificate delivered to) the Director (or in the case of the
Director’s death, to the Director’s beneficiary or estate).

     

    5.      Change in
Control.  In the event of a Change in Control (as defined in
the Plan and as modified by Section 17 below), the Board or Committee may, in
its discretion, (i) provide for the assumption or substitution of, or
adjustment (including to the number and type of Shares and purchase price
applicable) to, each outstanding Award; (ii) terminate any restrictions on
Stock Awards; and/or (iii) provide for the cancellation of Awards for a
cash payment to the Director. For the purposes of this Section 14(c), an Award
shall be considered assumed, without limitation, if, at the time of issuance of
the stock or other consideration upon a Change in Control, as the case may be,
each holder of an Award would be entitled to receive upon exercise of the Award
the same number and kind of shares of stock or the same amount of property, cash
or securities as such holder would have been entitled to receive upon the
occurrence of the transaction if the holder had been, immediately prior to such
transaction, the holder of the number of Shares covered by the Award at such
time (after giving effect to any adjustments in the number of Shares covered by
the Award as provided for in Section 14(a)); provided that if such consideration
received in the transaction is not solely common stock of the successor
corporation, the Administrator may, with the consent of the successor
corporation provide for the consideration to be received upon exercise of the
Award to be solely common stock of the successor corporation equal to the Fair
Market Value of the per Share consideration received by holders of Common Stock
in the transaction.

     

    6.    
 Deferral
Election.  Subject to any conditions deemed appropriate from
time to time by the Committee (including suspension of the right to elect
deferrals or to make changes to any existing deferral election), the Director
may elect to defer the Distribution Date set forth in Section 4 above using the
form attached as Exhibit A (or
any successor form approved by the Administrator).

     

    7.      Dividends.  Participants
holding Restricted Stock Units shall be entitled to receive credit for cash
dividends, stock dividends and other distributions paid during the Restricted
Period with respect to the corresponding number of Shares of Common Stock
underlying the Restricted Stock Units, provided that the fair market
value of any such dividends or distributions shall be converted into an
additional number of Restricted Stock Units (based on the Fair Market Value of
the Common Stock at the time of such payment or distribution), which additional
Restricted Stock Units shall be subject to the same forfeiture restrictions and
restrictions on transferability as apply to, and shall be settled at the same
time as, and subject to the same deferral elections as, the Restricted Stock
Units with respect to which they relate.  Credit under this paragraph
for any dividends paid during the Restricted Period shall be done as soon as
practicable following the payment date for such dividend.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    8.      Tax Withholding
Obligations.  In such rare circumstances in which withholding
is applicable, to meet any such obligations of the Company and Director that
might arise with respect to any withholding taxes, FICA contributions, or the
like under any federal, state, local or PRC statute, ordinance, rule, or
regulation in or connection with the award grant, vesting, deferral, or
settlement of the Restricted Stock Units, the Committee can, in the limited
circumstances where appropriate, require that the Company withhold a number of
shares of Common Stock otherwise deliverable having a Fair Market Value
sufficient to satisfy the statutory minimum (or such higher amount as is
allowable without adverse accounting consequences) of the Participant’s
estimated total federal, state, local or PRC tax obligations associated with
vesting or settlement of the Restricted Stock Units.  In such rare
circumstances, the Company may also, in lieu of or in addition to the foregoing,
at its sole discretion, either require the Director to deposit with the Company
an amount of cash sufficient to meet the withholding requirements and/or
withhold the required amounts from the Director’s pay during the pay periods
next following the date on which any such applicable tax liability otherwise
arises.  The Company shall not deliver any of the Certificates until
and unless the Director has made the deposit required herein or proper provision
for required withholding has been made. The Director hereby consents to any
action reasonably taken by the Company to meet the withholding
obligations.

     

    9.      Restriction on
Transferability.  Until the Distribution Date, the Restricted
Stock Units may not be sold, transferred, pledged, assigned, or otherwise
alienated at any time.  Any attempt to do so contrary to the
provisions hereof shall be null and void.

     

    10.    Rights as
Shareholder.  Subject to Section 6 above with respect to
dividend rights, the Director shall not have voting or any other rights as a
stockholder of the Company with respect to the Restricted Stock Units prior to
the Distribution Date. Upon the Distribution Date, the Director will obtain full
voting and other rights as a shareholder of the Company.

     

    11.    Administration.  The
Committee shall have the power to interpret the Plan and this Agreement and to
adopt such rules for the administration, interpretation, and application of the
Plan as are consistent therewith and to interpret or revoke any such
rules.  All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Director, the Company,
and all other interested persons.  No member of the Committee shall be
personally liable for any action, determination, or interpretation made in good
faith with respect to the Plan or this Agreement.

     

    12.    Effect on Other Employee
Benefit Plans.  The value of the Restricted Stock Units granted
pursuant to this Agreement shall not be included as compensation, earnings,
salaries, or other similar terms used when calculating the Director’s benefits
under any director or other benefit plan sponsored by the Company or any
Subsidiary except as such plan otherwise expressly provides.  The
Company expressly reserves its rights to amend, modify, or terminate any of the
Company’s or any Subsidiary’s director or other benefit plans.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    13.    Amendment.  This
Agreement may be amended only by a writing executed by the Company and the
Director which specifically states that it is amending this Agreement.
Notwithstanding the foregoing, this Agreement may be amended solely by the
Committee by a writing which specifically states that it is amending this
Agreement, so long as a copy of such amendment is delivered to the Director, and
provided that no such amendment adversely affects the rights of the Director
(but limiting the foregoing, the Committee reserves the right to change, by
written notice to the Director, the provisions of the Restricted Stock Units or
this Agreement in any way it may deem necessary or advisable to carry out the
purpose of the grant as a result of any change in applicable laws or regulations
or any future law, regulation, ruling, or judicial decision, provided that any
such change shall be applicable only to Restricted Stock Units which are then
subject to restrictions as provided herein).  Notwithstanding anything
else to the contrary in this Section 12 or in the Plan, any amendment to this
Agreement shall be subject to the requirements of Section 16 below.

     

    14.    Notices.  Any
notice to be given under the terms of this Agreement to the Company shall be
addressed to the Company in care of its stock administrator. Any notice to be
given to Director shall be addressed to Director at the address listed in the
Company’s records.  By a notice given pursuant to this Section, either
party may designate a different address for notices.  Any notice shall
have been deemed given when actually delivered.

     

    15.    Severability.  If
all or any part of this Agreement or the Plan is declared by any court or
governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not invalidate any portion of this Agreement or the Plan not
declared to be unlawful or invalid.  Any Section of this Agreement (or
part of such a Section) so declared to be unlawful or invalid shall, if
possible, be construed in a manner which will give effect to the terms of such
Section or part of a Section to the fullest extent possible while remaining
lawful and valid.

     

    16.    Construction.  The
Restricted Stock Units are being issued pursuant to Section 11 of the Plan
and are subject to the terms of the Plan.  A copy of the Plan has been
given to the Director, and additional copies of the Plan are available upon
request during normal business hours at the principal executive offices of the
Company.  To the extent that any provision of this Agreement violates
or is inconsistent with an express provision of the Plan, the Plan provision
shall govern and any inconsistent provision in this Agreement shall be of no
force or effect.

     

    17.    Code Section 409A
Matters.  This Restricted Stock Unit award is a nonqualified
deferred compensation arrangement subject to Code Section 409A.  The
Company has attempted in good faith to structure this Restricted Stock Unit
award (including any deferral elections made in connection with such award) in a
manner that complies with Section 409A, including the exemptions from and rules
for permissible deferred payment rights thereunder.  There can be no
assurance that the Internal Revenue Service will agree that this award complies
with Section 409A and to the extent it does not agree the Director shall be
fully responsible for any additional taxes, penalties and/or interest that might
apply as a result of such adverse determination.  To the extent this
award contemplates multiple Distribution Dates, each amount to be paid (Shares
to be distributed) hereunder on any particular Distribution Date is designated
as a separate payment and such payments will not collectively be treated as a
single payment.  Any subsequent deferral election shall comply with
the subsequent deferral election rules of Section 409A(a)(4)(C) (which, as
relevant to this award, are set forth on the election form attached hereto as
Exhibit
A).  Notwithstanding anything else to the contrary in this
Agreement or in the Plan, the Company may accelerate distribution of Shares
under this Agreement only in accordance with Treas. Reg.
§1.401A-3(j)(4).

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    Notwithstanding
anything to the contrary contained in the Plan or this Agreement, any
acceleration of the Distribution Date that occurs pursuant to Section 5 above
and/or Section 14(c) of the Plan shall only occur on a Change in Control (as
defined in the Plan) that qualifies as a “change in ownership or effective
control,” or a “change in ownership of a substantial portion of the assets,” of
the Company, all as defined under Code Section 409A.  In addition, for
all purposes under this Agreement and to the extent permitted under Code Section
409A, the Director shall have a “separation from service” as defined under Code
Section 409A upon the Termination Date.

     

    18.    Miscellaneous.

     

    (a)           This
Agreement shall be subject to all applicable laws, rules, and regulations, and
to such approvals by any governmental agencies or national securities exchanges
as may be required.  The Company shall have no liability for failure
to issue Shares pursuant to this Agreement unless it is able to do so in
compliance with all Applicable Laws.

     

    (b)           All
obligations of the Company under the Plan and this Agreement, with respect to
the Restricted Stock Units, shall be binding on any successor to the Company,
whether the existence of such successor is the result of a direct or indirect
purchase, merger, consolidation, or otherwise, of all or substantially all of
the business and/or assets of the Company.

     

    (c)           By
signing this Agreement, the Director acknowledges that his or her personal
employment or other service information regarding participation in the Plan and
information necessary to determine and pay, if applicable, benefits under the
Plan must be shared with other entities, including companies related to the
Company and persons responsible for certain acts in the administration of the
Plan.  By signing this Agreement, the Director consents to such
transmission of personal data, as the Company believes is appropriate to
administer the Plan.

     

    (d)           To
the extent not preempted by federal law of the United States, this Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Florida.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

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


     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          	
                                  “Director”

                                	 
      	
                                  “Company”

                                  Puda
      Coal, Inc.

                                
	 	 	 
	  	 
      	 
      	
                                  By

                                	 
      
	 
      	 
      	
                                  Name:

                                	 
      
	 
      	 
      	
                                  Title:

                                	 
      


                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    Exhibit
A

    PUDA
COAL, INC.

    RESTRICTED
STOCK UNIT

     

    DEFERRAL
ELECTION

     

    The
following election constitutes an election by the undersigned (“you”) to defer
payment of vested benefits and recognition of income pursuant to the Restricted
Stock Unit (“RSU”) Director Grant
Agreement (“Agreement”) between
you and Puda Coal, Inc. (“Company”) under the
Company’s 2008 Equity Incentive Plan.  This Deferral Election may be
entered into prior to or, in limited circumstances (described below) following,
the grant of your RSU in 2008.  Capitalized terms used but not defined
have the meanings set forth in the Company’s standard form Agreement for
Director RSU grants.

     

    You
understand you are not obligated to make a deferral election in the manner
offered on this election form.  If you do not make a deferral election
on this form, the Distribution Date of the RSU (the date the Shares subject to
vested
RSUs will be issued to you) will be the earlier
of:

     

    
      
        	
              	
                (a)

              	
                the
      Vesting Date of your RSU, or

              


      

    

     

    
      
        	
              	
                (b)

              	
                your
      Termination Date (see Sections 2, 3 and 4 of the Agreement),
      or

              


      

    

     

    
      
        	
              	
                (c)

              	
                the
      Change in Control Date (see Sections 2, 4, 5 and 17 of the Agreement and
      Section 14(c) of the Plan),

              


      

    

     

    or as
soon as practicable thereafter, but in no later event later than the date that
is forty-five (45) days after the relevant date.

    


    Even if
you make a deferral election on this form, the Shares underlying your vested
RSUs will be distributed to you (or your heirs or estate) earlier than the
date(s) you elect in the event of (1) your death prior the elected distribution
date(s), or (2) a Change in Control of the Company in which your RSUs are
terminating under Section 5 of the Agreement.

     

    I.           Deferral Election Made Prior to Grant
Date of RSU.  To defer the Distribution Date of the RSU beyond
the date specified in the second paragraph above, please select one of the following
choices (A-E).

     

    You agree
to defer the Distribution Date applicable to your RSU so that the Shares
underlying your vested RSU will be issued to you:

     

    
      
        	
                 
      

              	
                A.

              	
                ________
      In one installment on January 15, 20__ (but not before the Third
      Anniversary); or

              


      

       

      
        	
                 
      

              	
                B.

              	
                ________
      In _______ (not to exceed five) annual installments starting on January
      15, 20__ (but not before the Third Anniversary);
  or

              


      

       

      
        	
                 
      

              	
                C.

              	
                ________
      In one installment on the date that is thirty (30) days following your
      Termination Date (the date that your service on the Company’s Board
      terminates other than as a result of your death) that occurs after the
      Third Anniversary; or

              


      

       

    

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    
      
        	
                 
      

              	
                D.

              	
                ________
      In one installment on the earlier of (1) January 15 , 20__ (but not
      before the Third Anniversary) or (2) the date that is thirty (30) days
      following your Termination Date that occurs after the Third Anniversary;
      or

              


      

       

      
        	
                 
      

              	
                E.

              	
                ________
      In _______ (not to exceed five) annual installments starting on January
      15, 20__ (but not before the Third Anniversary), unless your Termination
      Date occurs after the Third Anniversary but before distribution of the
      final installment under this Section E, in which case any Shares related
      to vested RSUs that have not yet been distributed shall be distributed in
      a single installment on the date that is thirty (30) days following your
      Termination Date.

              


      

       

    

    Your
election above shall become irrevocable as of the Grant Date and may be changed
only in accordance with the requirements of Section II below.

    


    II.           Deferral Election Made After the Date
of Grant.  To defer the Distribution Date of the RSU beyond the
date specified at the Grant Date (including any Deferral Election you previously
made with respect to the RSU under Section I above), the following rules will
apply to your Deferral Election and, to the extent your election under this
Section II does not conform with these rules, your election will be void and the
original Distribution Date or your prior election, as applicable, will continue
to apply:

     

    
      	
               
      

            	
              ·

            	
              Your
      Deferral Election under this Section II will become irrevocable as of
      tenth (10th)
      day after it is delivered to the Company, subject to the Company’s review
      of the Deferral Election to ensure that it complies with all the
      requirements set forth herein, in the Agreement and in the
      Plan.

            


    

     

    
      	
               
      

            	
              ·

            	
              Your
      Deferral Election under this Section II will not be given effect until
      twelve (12) months and one day after the date on which it becomes
      irrevocable.

            


    

     

    
      	
               
      

            	
              ·

            	
              The
      date specified in your Deferral Election under this Section II must be
      after the date that is five (5) years after whichever of the following
      date(s) (the “Prior Distribution Date”) would have applied in the absence
      of your election under this Section II:  (a) the Third
      Anniversary, or (b) the last of the date(s) previously specified under a
      Deferral Election under Section I
above.

            


    

     

    You agree
to defer the Distribution Date applicable to your RSU so that the Shares
underlying your vested RSU will be issued to you:

    
       

      
        	
              	
                A.

              	
                ________
      In one installment on January 15 , 20__ (but not before the Prior
      Distribution Date); or

              


      

       

      
        
          	
                	
                  B.

                	
                  ________
      In _______ (not to exceed five) annual installments starting on January
      15, 20__ (but not before the Prior Distribution Date);
  or

                


        

      

       

      
        
          	
                	
                  C.

                	
                  ________
      In one installment on the earlier of (1) January 15 , 20__ (but not
      before the Prior Distribution Date) or (2) the date that is thirty (30)
      days following the fifth (5th)
      anniversary of your Termination Date (the date that your service on the
      Company’s Board terminates other than as a result of your
      death).

                


        

      

    

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    
      

    

     

    The
Company shall have sole discretion to revise the terms of this election form, or
the procedures with respect to making this election or any election change, to
the extent the Company deems it helpful or appropriate to comply with applicable
law.

     

      
        

      

    

    [Director
Name]

     

      
        

      

    

    [Date]

     

    
      
        
        

      

      
        9