exv10w5



 







Exhibit 10.5




STOCK UNIT AWARD AGREEMENT




     This Stock Unit Award Agreement (this “Agreement”) is made by and between Harvest
Natural Resources, Inc., a Delaware corporation (the “Company”), and James A. Edmiston III (the
“Executive”) as of the 15th day of September, 2005 (the “Grant Date”).



     Whereas, the Company desires to grant to the Executive the stock unit award specified
herein (the “Award”), subject to the terms and conditions of this Agreement; and



     Whereas, the Award is a “stock value right” as that term is defined in Treasury
Regulation § 31.3121(v)(2)-1(b)(4)(ii); and



     Whereas, the Executive desires to have the opportunity to hold the Award, subject to
the terms and conditions of this Agreement;



     Now, therefore, in consideration of the premises, mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:




	1.	 	Grant of Stock Unit Award. Effective as of the Grant Date, the Company hereby awards to the
Executive 250,000 Stock Units. A “Stock Unit” is a right to receive on the Payment Date,
after vesting thereof, a cash amount equal to the excess of (a) the Fair Market Value of one
share of the Stock on the Valuation Date over (b) 100 percent of the Fair Market Value of one
share of the Stock on the Grant Date. For purposes of this Agreement the “Fair Market Value
of one share of the Stock” means the average of the high and low trading prices per share of
the Stock for the applicable date as reported by the New York Stock Exchange or the principal
stock exchange on which the Stock is then traded. The Stock Units that are awarded hereby to
the Executive shall be subject to the prohibitions and restrictions set forth herein with
respect to the sale or other disposition of such Stock Units and the obligation to forfeit and
surrender such Stock Units to the Company (the “Forfeiture Restrictions”). In accepting the
award of Stock Units set forth in this Agreement the Executive accepts and agrees to be bound
by all the terms and conditions of this Agreement.
	 
	2.	 	Definitions. For purposes of this Agreement, the following terms shall have the meanings
indicated below:






	 	(a)	 	“Affiliate” means an Entity that is required to be treated as a single employer
together with the Company for certain benefit plan purposes under section 414 of the
Code.
	 
	 	(b)	 	“Board” means the Board of Directors or other governing body of the Company or
its direct or indirect parent.




 









 












	 	(c)	 	“Change of Control” means the occurrence of any of the following events:






	 	(i)	 	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)
(a “Covered Person”) of beneficial ownership (within the meaning of rule 13d-3
promulgated under the Securities Exchange Act of 1934) of 50 percent or more of
the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the “Voting
Securities”); provided, however, that for purposes of this subsection (i) of
this Section 2(c) the following acquisitions shall not constitute a Change of
Control: (i) any acquisition by the Company, (ii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any Entity controlled by the Company, or (iii) any acquisition by any Entity
pursuant to a transaction which complied with clauses (A), (B) and (C) of
subsection (iii) of this Section 2(c); or
	 
	 	(ii)	 	individuals who, as of the date of this Agreement, constitute
the Board (the “Incumbent Board”) cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director after the date of this Agreement whose election, or nomination for
election by the Company’s stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors; or
	 
	 	(iii)	 	the consummation of a reorganization, merger or consolidation
or sale of the Company, or a disposition of at least 50 percent of the assets
of the Company including goodwill (a “Business Combination”), provided,
however, that for purposes of this subsection (iii), a Business Combination
will not constitute a change of control if the following three requirements are
satisfied: following such Business Combination, (A) all or substantially all
of the individuals and entities who were the beneficial owners, respectively,
of the Company’s Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50 percent of
the ownership interests of the Entity resulting from such Business Combination
(including, without limitation, an Entity which as a result of such transaction
owns the Company or all or substantially all of the Company’s assets either
directly or through one or more subsidiaries or other affiliated entities) in
substantially the same proportions as their ownership immediately prior to such
Business Combination, (B) no Covered Person (excluding any employee benefit
plan (or related trust) of the Company or such Entity resulting from such
Business Combination) beneficially owns, directly or indirectly, 




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	 	 	 	50 percent or more of, respectively, the ownership interests in the Entity
resulting from such Business Combination, except to the extent that such
ownership existed prior to the Business Combination, and (C) at least a
majority of the members of the board of directors of the Entity resulting
from such Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination. For this purpose any
individual who becomes a director after the date of this Agreement, and
whose election or nomination for election by the Company’s stockholders, was
approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors.






	 	(d)	 	“Code” means the Internal Revenue Code of 1986, as amended.
	 
	 	(e)	 	“Disability” means the Executive no longer can perform one or more of the
essential functions of the Executive’s job even with reasonable accommodation and a
physician selected by the Company has confirmed such condition exists and has reported
his findings to the Company in a written notice received by the Company.
	 
	 	(f)	 	“Entity” means any corporation, partnership, association, joint-stock company,
limited liability company, trust, unincorporated organization or other business Entity.
	 
	 	(g)	 	“Forfeiture Restrictions” means any prohibitions and restrictions set forth
herein with respect to the sale or other disposition of Stock Units issued to the
Executive hereunder and the obligation to forfeit and surrender such Stock Units to the
Company.
	 
	 	(h)	 	“Payment Date” means the earliest of (i) September 14, 2015, (ii) six months
after the date the Executive incurs a Section 409A Separation From Service with respect
to the Company, (iii) the date of the death of the Executive, and (iv) the date the
Company incurs a Section 409A Change of Control.
	 
	 	(i)	 	“Section 409A” means section 409A of the Code and the rules and regulations
issued thereunder by the Department of Treasury and the Internal Revenue Service.
	 
	 	(j)	 	“Section 409A Change of Control” means a change in the ownership or effective
control of the Company or in the ownership of a substantial portion of the assets of
the Company within the meaning of Section 409A.
	 
	 	(k)	 	“Section 409A Separation from Service” means a separation from service from the
Company within the meaning of Section 409A.





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	 	(l)	 	“Stock” means the Company’s common stock, par value $0.01 per share.
	 
	 	(m)	 	“Valuation Date” means the last day immediately preceding the Payment Date on
which sales of the Stock are reported by the principal stock exchange on which the
Stock is then traded.






	3.	 	Transfer Restrictions. The Stock Units granted hereby may not be sold, assigned, pledged,
exchanged, hypothecated or otherwise transferred, encumbered or disposed of (other than by
will or the applicable laws of descent and distribution). Any such attempted sale,
assignment, pledge, exchange, hypothecation, transfer, encumbrance or disposition in violation
of this Agreement shall be void and the Company shall not be bound thereby.
	 
	4.	 	Vesting. The Stock Units that are granted hereby shall be subject to Forfeiture
Restrictions. The Forfeiture Restrictions shall lapse as to the Stock Units that are granted
hereby in accordance with the provisions of subsections (a) through (c) of this Section 4.






	 	(a)	 	Generally. The Forfeiture Restrictions shall lapse as to the Stock Units that
are granted hereby in accordance with the following schedule provided that the
Executive’s employment with the Company and all of its Affiliates has not terminated
prior to the applicable lapse date:






	 	(i)	 	the Forfeiture Restrictions shall lapse as to one-third of the
Stock Units subject to this Agreement after the later of September 15, 2006,
and the Stock Value Date;
	 
	 	(ii)	 	the Forfeiture Restrictions shall lapse as to an additional
one-third of the Stock Units subject to this Agreement after the later of
September 15, 2007, and the Stock Value Date; and
	 
	 	(iii)	 	the Forfeiture Restrictions shall lapse as to the remaining
one-third of the Stock Units subject to this Agreement after the later of
September 15, 2008, and the Stock Value Date.
	 
	 	The “Stock Value Date” is the first day after the Grant Date on which the average of
the Closing Price of the Stock for ten (10) consecutive [trading] days equals or
exceeds $25.00 per share. The “Closing Price of the Stock” means the final trading
price per share of the Stock as reported in The Wall Street Journal listing
of consolidation trading for New York Stock Exchange issues or the principal stock
exchange on which the Stock is then traded. If the Executive’s employment
relationship with the Company and all of its Affiliates terminates before the
applicable lapse date set forth in this subsection (a), except as otherwise
specified in subsections (b) or (c) below, the Forfeiture Restrictions then
applicable to the Stock Units shall not lapse and all the Stock Units then subject
to the Forfeiture Restrictions shall be forfeited to the Company upon such
termination of the Executive’s employment relationship.




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	 	(b)	 	Death or Disability. Notwithstanding any provisions of Section 4(a) to the
contrary, in the event the Executive’s employment relationship with the Company and all
of its Affiliates is terminated due to the death or Disability of the Executive prior
to the expiration of the term of this Agreement, the Forfeiture Restrictions shall
lapse as to the Stock Units that are granted hereby on the date of such termination of
the Executive’s employment relationship due to death or Disability.
	 
	 	(c)	 	Change of Control. Notwithstanding any provisions of Section 4(a) to the
contrary, in the event the Executive’s employment relationship with the Company and all
of its Affiliates is terminated within 730 days after or 240 days before a Change of
Control, the Forfeiture Restrictions shall lapse as to the Stock Units that are granted
hereby on the date the Executive’s employment relationship with the Company and all of
its Affiliates is terminated.






	5.	 	Time of Payment under the Award. To the extent the Forfeiture Restrictions lapse with
respect to the Stock Units granted hereby on or before the Payment Date the Company shall pay
to the Executive on the Payment Date the amount payable with respect to the Stock Units for
which the Forfeiture Restrictions have lapsed.
	 
	6.	 	Term.. This Agreement and the Executive’s rights hereunder shall terminate at 5:00 p.m.
(Central Time) on September 15, 2015.
	 
	7.	 	Tax Withholding. The Company shall be entitled to deduct from the amounts payable to the
Executive (or other person validly exercising the Award) under this Agreement and any other
compensation payable by the Company to the Executive any sums required by federal, state or
local tax law to be withheld with respect to any payment made by the Company to the Executive
under this Agreement. The Company shall have no obligation with respect to payment of the
Award until the Company or an Affiliate has received payment sufficient to cover all minimum
tax withholding amounts due with respect to the Award. Neither the Company nor any Affiliate
shall be obligated to advise the Executive of the existence of the tax or the amount which it
will be required to withhold.
	 
	8.	 	Capital Adjustments and Reorganizations.






	 	(a)	 	The existence of the Stock Units shall not affect in any way the right or power
of the Company to make or authorize any adjustment, recapitalization, reorganization or
other change in its capital structure or its business, engage in any merger or
consolidation, issue any debt or equity securities, dissolve or liquidate, or sell,
lease, exchange or otherwise dispose of all or any part of its assets or business, or
engage in any other corporate act or proceeding.
	 
	 	(b)	 	If the Company shall effect a subdivision or consolidation of the Stock or
other capital readjustment, the payment of a stock dividend with respect to the Stock,
or other increase or reduction of the number of shares of the Stock outstanding,
without receiving compensation therefor in money, services or property, then the number
of Stock Units awarded under this Agreement shall be appropriately




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	 	 	 	adjusted in the same manner as if the Executive was the holder of an equivalent
number of shares of the Stock immediately prior to the event requiring the
adjustment.






	9.	 	Employment Relationship. For purposes of this Agreement, the Executive shall be considered
to be in the employment of the Company as long as the Executive has an employment relationship
with the Company. The Board shall determine any questions as to whether and when there has
been a termination of such employment relationship, and the cause of such termination, under
the Plan and the Board’s determination shall be final and binding on all persons.
	 
	10.	 	Not an Employment Agreement. This Agreement is not an employment agreement, and no provision
of this Agreement shall be construed or interpreted to create an employment relationship
between the Executive and the Company or any of its Affiliates or guarantee the right to
remain employed by the Company or any of its Affiliates for any specified term.
	 
	11.	 	Notices. Any notice, instruction, authorization, request or demand required hereunder shall
be in writing, and shall be delivered either by personal delivery, by telegram, telex,
telecopy or similar facsimile means, by certified or registered mail, return receipt
requested, or by courier or delivery service, addressed to the Company at the Company’s
principal business office address and to the Executive at the Executive’s residential address
indicated beneath the Executive’s signature on the execution page of this Agreement, or at
such other address and number as a party shall have previously designated by written notice
given to the other party in the manner hereinabove set forth. Notices shall be deemed given
when received, if sent by facsimile means (confirmation of such receipt by confirmed facsimile
transmission being deemed receipt of communications sent by facsimile means); and when
delivered (or upon the date of attempted delivery where delivery is refused), if
hand-delivered, sent by express courier or delivery service, or sent by certified or
registered mail, return receipt requested.
	 
	12.	 	Amendment and Waiver. Except as otherwise provided herein, this Agreement may be amended,
modified or superseded only by written instrument executed by the Company and the Executive.
Only a written instrument executed and delivered by the party waiving compliance hereof shall
waive any of the terms or conditions of this Agreement. Any waiver granted by the Company
shall be effective only if executed and delivered by a duly authorized executive officer of
the Company other than the Executive. The failure of any party at any time or times to
require performance of any provisions hereof shall in no manner effect the right to enforce
the same. No waiver by any party of any term or condition, or the breach of any term or
condition contained in this Agreement, in one or more instances, shall be construed as a
continuing waiver of any such condition or breach, a waiver of any other condition, or the
breach of any other term or condition.
	 
	13.	 	Governing Law and Severability. This Agreement shall be governed by the laws of the State of
Texas without regard to its conflicts of law provisions. The invalidity of any provision of
this Agreement shall not affect any other provision of this Agreement, which shall remain in
full force and effect.




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	14.	 	Successors and Assigns. Subject to the limitations which this Agreement imposes upon the
transferability of the Stock Units granted hereby, this Agreement shall bind, be enforceable
by and inure to the benefit of the Company and its successors and assigns, and to the
Executive, the Executive’s permitted assigns and upon the Executive’s death, the Executive’s
estate and beneficiaries thereof (whether by will or the laws of descent and distribution),
executors, administrators, agents, legal and personal representatives.






	15.	 	Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be an original for all purposes but all of which taken together shall constitute but one
and the same instrument.




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     In Witness Whereof, the Company has caused this Agreement to be duly executed by an
officer thereunto duly authorized, and the Executive has executed this Agreement, all as of the
date first above written.



	 	 	 	 	 
	 	HARVEST NATURAL RESOURCES, INC.

 	 
	 	By:  	 	 
	 	 	 	 
	 	Title: 	 	 
	 


	 	 	 	 	 
	 	EXECUTIVE:





 
James A. Edmiston III 

 	 
	 	Address: