EXHIBIT 4.3
1998 INCENTIVE PLAN
OF
PENNZENERGY COMPANY
1. Plan. This 1998 Incentive Plan of PennzEnergy Company was
adopted by the Company to reward certain corporate officers and key employees of
the Company.
2. Objectives. This Plan is designed to attract and retain key
employees of the Company and its Subsidiaries, to encourage a sense of
proprietorship and to stimulate the active interest of such persons in the
development and financial success of the Company and its Subsidiaries. These
objectives are to be accomplished by making Awards under this Plan and thereby
providing Participants with a proprietary interest in the growth and performance
of the Company and its Subsidiaries.
3. Definitions. As used herein, the terms set forth below shall
have the following respective meanings:
"Authorized Officer" means the Chairman of the Board or the Chief
Executive Officer of the Company (or any other senior officer of the Company to
whom either the Chairman or the Chief Executive Officer shall delegate the
authority to execute any Award Agreement).
"Award" means the grant of any Option, SAR, Stock Award, Cash Award or
Performance Award, whether granted singly, in combination or in tandem, to a
Participant pursuant to such applicable terms, conditions and limitations as the
Committee may establish in order to fulfill the objectives of the Plan.
"Award Agreement" means a written agreement between the Company and a
Participant setting forth the terms, conditions and limitations applicable to an
Award.
"Board" means the Board of Directors of the Company.
"Cash Award" means an award denominated in cash.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Committee" means the Compensation Committee of the Board or such
other committee of the Board as is designated by the Board to administer the
Plan.
"Common Stock" means the Common Stock, par value $0.83-1/3 per share,
of the Company.
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"Company" means PennzEnergy Company, a Delaware corporation.
"Director" means an individual serving as a member of the Board.
"Dividend Equivalents" means, with respect to shares of Restricted
Stock that are to be issued at the end of the Restriction Period (including
conditional stock), an amount equal to all dividends and other distributions (or
the economic equivalent thereof) that are payable to stockholders of record
during the Restriction Period on a like number of shares of Common Stock.
"Employee" means an employee of the Company or any of its
Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Fair Market Value" of a share of Common Stock means, as of a
particular date, (i) if shares of Common Stock are listed on a national
securities exchange, the mean between the highest and lowest sales price per
share of Common Stock reported on the consolidated transaction reporting system
for the principal national securities exchange on which shares of Common Stock
are listed on that date, or, if there shall have been no such sale so reported
on that date, on the last preceding date on which such a sale was so reported,
(ii) if shares of Common Stock are not so listed but are quoted on the Nasdaq
National Market, the mean between the highest and lowest sales price per share
of Common Stock reported by the Nasdaq National Market on that date, or, if
there shall have been no such sale so reported on that date, on the last
preceding date on which such a sale was so reported, (iii) if the Common Stock
is not so listed or quoted, the mean between the closing bid and asked price on
that date, or, if there are no quotations available for such date, on the last
preceding date on which such quotations are available, as reported by the Nasdaq
Stock Market, or, if not reported by the Nasdaq Stock Market, by the National
Quotation Bureau Incorporated or (iv) if shares of Common Stock are not publicly
traded, the most recent value determined by an independent appraiser appointed
by the Company for such purpose. The above notwithstanding, respecting an Award
granted under Section 8 of this Plan (x) pursuant to, or in connection with, the
transaction occurring under that certain Agreement and Plan of Merger, dated as
of April 14, 1998, among Pennzoil Company, Pennzoil Products Company, Downstream
Merger Company and Quaker State Corporation, or (y) as of the first full trading
day of 1999, "Fair Market Value" of a share of Common Stock shall mean the
average of the mean between the highest and lowest sales prices per share of
Common Stock as reported on the New York Stock Exchange for each of the first
three (3) full trading days of 1999.
"Nonqualified Stock Option" means an Option that is within the meaning
of Section 83 of the Code.
"Option" means a right to purchase a specified number of shares of
Common Stock at a specified price.
"Participant" means an individual to whom an Award has been made under
this Plan.
"Performance Award" means an Award made to a Participant pursuant to
this Plan that is subject to the attainment of one or more Performance Goals.
"Performance Goal" means a standard established by the Committee to
determine in whole or in part whether a Performance Award shall be earned.
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"Plan" means this 1998 Incentive Plan of PennzEnergy Company, as
amended from time to time.
"Restricted Stock" means any Common Stock that is restricted or
subject to forfeiture provisions.
"Restriction Period" means a period of time beginning as of the date
upon which an Award of Restricted Stock is made pursuant to this Plan and ending
as of the date upon which the Common Stock subject to such Award is no longer
restricted or subject to forfeiture provisions.
"SAR" means a right to receive a payment, in cash or Common Stock,
equal to the excess of the Fair Market Value (or other specified valuation) of a
specified number of shares of Common Stock on the date the right is exercised
over a specified strike price, in each case, as determined by the Committee.
"Stock Award" means an award in the form of shares of Common Stock or
units denominated in shares of Common Stock.
"Stock Based Awards Limitations" shall have the meaning set forth in
paragraph 8(b)(ii) of this Plan.
"Subsidiary" means (i) in the case of a corporation, any corporation
of which the Company directly or indirectly owns shares representing more than
50% of the combined voting power of the shares of all classes or series of
capital stock of such corporation which have the right to vote generally on
matters submitted to a vote of the stockholders of such corporation and (ii) in
the case of a partnership or other business entity not organized as a
corporation, any such business entity of which the Company directly or
indirectly owns more than 50% of the voting, capital or profits interests
(whether in the form of partnership interests, membership interests or
otherwise).
4. Eligibility. Individuals eligible for Awards under this Plan are
(i) those key Employees who hold positions of responsibility and whose
performance, in the judgment of the Committee, can have a significant effect on
the success of the Company and its Subsidiaries, and (ii) individuals who are
expected to become such Employees within six months of the date of the Award.
5. Common Stock Available for Awards. Subject to the provisions of
paragraph 14 hereof, there shall be available for Awards under this Plan granted
wholly or partly in Common Stock (including rights or options that may be
exercised for or settled in Common Stock) an aggregate of 500,000 shares of
Common Stock to be issued solely from the Company's treasury stock. The number
of shares of Common Stock that are the subject of Awards under this Plan, if
forfeited or terminated, unexercised upon expiration, are settled in cash in
lieu of Common Stock or in a manner such that all or some of the shares covered
by an Award are not issued to a Participant, or if exchanged for Awards that do
not involve Common Stock, shall again immediately become
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available for Awards hereunder. The Committee may from time to time adopt and
observe such procedures concerning the counting of shares against the Plan
maximum as it may deem appropriate. The Board and the appropriate officers of
the Company shall from time to time take whatever actions, if any, are necessary
to file any required documents with governmental authorities, stock exchanges
and transaction reporting systems to ensure that shares of Common Stock are
available for issuance pursuant to Awards.
6. Administration.
(a) This Plan shall be administered by the Committee. The Committee
shall consist of at least two members of the Board.
(b) Subject to the provisions hereof, the Committee shall have full
and exclusive power and authority to administer this Plan and to take all
actions that are specifically contemplated hereby or are necessary or
appropriate in connection with the administration hereof. The Committee
shall also have full and exclusive power to interpret this Plan and to
adopt such rules, regulations and guidelines for carrying out this Plan as
it may deem necessary or proper, all of which powers shall be exercised in
the best interests of the Company and in keeping with the objectives of
this Plan. The Committee may, in its discretion, provide for the extension
of the exercisability of an Award, accelerate the vesting or exercisability
of an Award, eliminate or make less restrictive any restrictions contained
in an Award, waive any restriction or other provision of this Plan or an
Award or otherwise amend or modify an Award in any manner that is either
(i) not adverse to the Participant to whom such Award was granted or (ii)
consented to by such Participant. The Committee may make an award to an
individual who it expects to become an Employee within the next six months,
provided that such award shall be subject to the individual actually
becoming an Employee within such time period. The Committee may correct
any defect or supply any omission or reconcile any inconsistency in this
Plan or in any Award in the manner and to the extent the Committee deems
necessary or desirable to further the Plan purposes. Any decision of the
Committee in the interpretation and administration of this Plan shall lie
within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned.
(c) No member of the Committee or officer of the Company to whom the
Committee has delegated authority in accordance with the provisions of
paragraph 7 of this Plan shall be liable for anything done or omitted to be
done by him or her, by any member of the Committee or by any officer of the
Company in connection with the performance of any duties under this Plan,
except for his or her own willful misconduct or as expressly provided by
statute.
7. Delegation of Authority. The Committee may delegate to the Chief
Executive Officer and to other senior officers of the Company its duties under
this Plan pursuant to such conditions or limitations as the Committee may
establish.
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8. Awards.
(a) The Committee shall determine the type or types of Awards to be
made under this Plan and shall designate from time to time the individuals
who are to be the recipients of Awards. Each Award may be embodied in an
Award Agreement, which shall contain such terms, conditions and limitations
as shall be determined by the Committee in its sole discretion and shall be
signed by the Participant to whom the Award is made and by an Authorized
Officer for and on behalf of the Company. Awards may consist of those
listed in this paragraph 8(a) and may be granted singly, in combination or
in tandem. Awards may also be made in combination or in tandem with, in
replacement of, or as alternatives to, grants or rights under this Plan or
any other employee plan of the Company or any of its Subsidiaries,
including the plan of any acquired entity. An Award may provide for the
grant or issuance of additional, replacement or alternative Awards upon the
occurrence of specified events, including the exercise of the original
Award granted to a Participant. All or part of an Award may be subject to
conditions established by the Committee, which may include, but are not
limited to, continuous service with the Company and its Subsidiaries,
achievement of specific business objectives, increases in specified
indices, attainment of specified growth rates and other comparable
measurements of performance. Upon the termination of employment by a
Participant who is an Employee, any unexercised, deferred, unvested or
unpaid Awards shall be treated as set forth in the applicable Award
Agreement.
(i) Option. An Award may be in the form of an Option. An Option
awarded pursuant to this Plan may consist only of a Nonqualified Stock
Option. The price at which shares of Common Stock may be purchased
upon the exercise of an Option shall be not less than the Fair Market
Value of the Common Stock on the date of grant. Subject to the
foregoing provisions, the terms, conditions and limitations applicable
to any Option awarded pursuant to this Plan, including the term of any
Option and the date or dates upon which it becomes exercisable, shall
be determined by the Committee.
(ii) Stock Appreciation Right. An Award may be in the form of an
SAR. The terms, conditions and limitations applicable to any SAR
awarded pursuant to this Plan, including the term of any SAR and the
date or dates upon which it becomes exercisable, shall be determined
by the Committee.
(iii) Stock Award. An Award may be in the form of a Stock
Award, including the award of Restricted Stock or conditional stock
units. The terms, conditions and limitations applicable to any Stock
Award granted pursuant to this Plan shall be determined by the
Committee.
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(iv) Cash Award. An Award may be in the form of a Cash Award.
The terms, conditions and limitations applicable to any Cash Award
granted pursuant to this Plan shall be determined by the Committee.
(v) Performance Award. Without limiting the type or number of
Awards that may be made under the other provisions of this Plan, an
Award may be in the form of a Performance Award. A Performance Award
shall be paid, vested or otherwise deliverable solely on account of
the attainment of one or more pre-established, objective Performance
Goals established by the Committee prior to the earlier to occur of
(x) 90 days after the commencement of such period of service to which
the Performance Goal relates and (y) the lapse of 25% of such period
of service (as scheduled in good faith at the time the goal is
established), and in any event while the outcome is substantially
uncertain. A Performance Goal is objective if a third party having
knowledge of the relevant facts could determine whether the goal is
met. Such a Performance Goal may be based on one or more business
criteria that apply to the individual, one or more business units of
the Company, or the Company as a whole, and may include one or more of
the following: increased revenue; net income; earnings before
interest, taxes, depreciation and amortization (EBITDA); other
earnings measures; economic value added (EVA); cash flow measures;
stock price; market share; return on equity or capital; return on
revenue measures; costs; oil and gas volumes; petroleum reserve
measures and safety and environmental performance measures. Unless
otherwise stated, such a Performance Goal need not be based upon an
increase or positive result under a particular business criterion and
could include, for example, maintaining the status quo or limiting
economic losses (measured, in each case, by reference to specific
business criteria). Prior to the payment of any compensation based on
the achievement of Performance Goals, the Committee must certify in
writing that applicable Performance Goals and any of the material
terms thereof were, in fact, satisfied. Subject to the foregoing
provisions, the terms, conditions and limitations applicable to any
Performance Awards made pursuant to this Plan shall be determined by
the Committee.
(b) Notwithstanding anything to the contrary contained in this Plan,
the following limitations shall apply to any Award made hereunder:
(i) no Participant may be granted, during any one calendar year
period, Awards consisting of Options or SARs that are exercisable for
more than 250,000 shares of Common Stock;
(ii) no Participant may be granted, during any one calendar year
period, Stock Awards covering or relating to more than 10,000 shares
of Common Stock (the limitation set forth in this clause (ii),
together with the limitation set forth in clause (i) above, being
hereinafter collectively referred to as the "Stock Based Awards
Limitations"); and
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(iii) no Participant may be granted Awards consisting of cash or
in any other form permitted under this Plan (other than Awards
consisting of Options or SARs or otherwise consisting of shares of
Common Stock or units denominated in such shares) in respect of any
one calendar year period having a value determined on the date of
grant in excess of $2,000,000.
9. Payment of Awards.
(a) General. Payment of Awards may be made in the form of cash or
Common Stock, or a combination thereof, and may include such restrictions
as the Committee shall determine, including, in the case of Common Stock,
restrictions on transfer and forfeiture provisions. If payment of an Award
is made in the form of Restricted Stock, the applicable Award Agreement
relating to such shares shall specify whether they are to be issued at the
beginning or end of the Restriction Period. In the event that shares of
Restricted Stock are to be issued at the beginning of the Restriction
Period, the certificates evidencing such shares (to the extent that such
shares are so evidenced) shall contain appropriate legends and restrictions
that describe the terms and conditions of the restrictions applicable
thereto. In the event that shares of Restricted Stock are to be issued at
the end of the Restricted Period, the right to receive such shares shall be
evidenced by book entry registration or in such other manner as the
Committee may determine.
(b) Deferral. With the approval of the Committee, amounts payable in
respect of Awards may be deferred and paid either in the form of
installments or as a lump-sum payment. The Committee may permit selected
Participants to elect to defer payments of some or all types of Awards in
accordance with procedures established by the Committee. Any deferred
payment of an Award, whether elected by the Participant or specified by the
Award Agreement or by the Committee, may be forfeited if and to the extent
that the Award Agreement so provides.
(c) Dividends and Interest. Rights to dividends or Dividend
Equivalents may be extended to and made part of any Award consisting of
shares of Common Stock or units denominated in shares of Common Stock,
subject to such terms, conditions and restrictions as the Committee may
establish. The Committee may also establish rules and procedures for the
crediting of interest on deferred cash payments and on Dividend Equivalents
for Awards consisting of shares of Common Stock or units denominated in
shares of Common Stock.
(d) Substitution of Awards. At the discretion of the Committee, a
Participant may be offered an election to substitute an Award for another
Award or Awards of the same or different type.
10. Option Exercise. The price at which shares of Common Stock may
be purchased under an Option shall be paid in full at the time of exercise in
cash or, if elected by the optionee, the optionee may purchase such shares by
means of tendering Common Stock or
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surrendering another Award, including Restricted Stock, valued at Fair Market
Value on the date of exercise, or any combination thereof. The Committee shall
determine acceptable methods for Participants to tender Common Stock or other
Awards. The Committee may provide for procedures to permit the exercise or
purchase of such Awards by use of the proceeds to be received from the sale of
Common Stock issuable pursuant to an Award. Unless otherwise provided in the
applicable Award Agreement, in the event shares of Restricted Stock are tendered
as consideration for the exercise of an Option, a number of the shares issued
upon the exercise of the Option, equal to the number of shares of Restricted
Stock used as consideration therefor, shall be subject to the same restrictions
as the Restricted Stock so submitted as well as any additional restrictions that
may be imposed by the Committee.
11. Taxes. The Company shall have the right to deduct applicable
taxes from any Award payment and withhold, at the time of delivery or vesting of
cash or shares of Common Stock under this Plan, an appropriate amount of cash or
number of shares of Common Stock or a combination thereof for payment of taxes
required by law or to take such other action as may be necessary in the opinion
of the Company to satisfy all obligations for withholding of such taxes. The
Committee may also permit withholding to be satisfied by the transfer to the
Company of shares of Common Stock theretofore owned by the holder of the Award
with respect to which withholding is required. If shares of Common Stock are
used to satisfy tax withholding, such shares shall be valued based on the Fair
Market Value when the tax withholding is required to be made. The Committee may
provide for loans, on either a short term or demand basis, from the Company to a
Participant to permit the payment of taxes required by law.
12. Amendment, Modification, Suspension or Termination. The Board
may amend, modify, suspend or terminate this Plan for the purpose of meeting or
addressing any changes in legal requirements or for any other purpose permitted
by law, except that (i) no amendment or alteration that would adversely affect
the rights of any Participant under any Award previously granted to such
Participant shall be made without the consent of such Participant and (ii) no
amendment or alteration shall be effective prior to its approval by the
stockholders of the Company; however clause (ii) shall only apply if, and to the
extent, such approval is required by applicable legal requirements.
13. Assignability. Unless otherwise determined by the Committee and
provided in the Award Agreement, no Award or any other benefit under this Plan
constituting a derivative security within the meaning of Rule 16a-1(c) under the
Exchange Act shall be assignable or otherwise transferable, except by will or
the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Code or Title I of the Employee Retirement
Income Security Act, or the rules thereunder. The Committee may prescribe and
include in applicable Award Agreements other restrictions on transfer. Any
attempted assignment of an Award or any other benefit under this Plan in
violation of this paragraph 13 shall be null and void.
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14. Adjustments.
(a) The existence of outstanding Awards shall not affect in any manner
the right or power of the Company or its stockholders to make or authorize
any or all adjustments, recapitalizations, reorganizations or other changes
in the capital stock of the Company or its business or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred
or prior preference stock (whether or not such issue is prior to, on a
parity with or junior to the Common Stock) or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding of any
kind, whether or not of a character similar to that of the acts or
proceedings enumerated above.
(b) In the event of any subdivision or consolidation of outstanding
shares of Common Stock, declaration of a dividend payable in shares of
Common Stock or other stock split, then (i) the number of shares of Common
Stock reserved under this Plan, (ii) the number of shares of Common Stock
covered by outstanding Awards in the form of Common Stock or units
denominated in Common Stock, (iii) the exercise or other price in respect
of such Awards, (iv) the appropriate Fair Market Value and other price
determinations for such Awards and (v) the Stock Based Awards Limitations
shall each be proportionately adjusted by the Board to reflect such
transaction. In the event of any other recapitalization or capital
reorganization of the Company, any consolidation or merger of the Company
with another corporation or entity, the adoption by the Company of any plan
of exchange affecting the Common Stock or any distribution to holders of
Common Stock of securities or property (other than normal cash dividends or
dividends payable in Common Stock), then (i) the number of shares of Common
Stock covered by outstanding Awards in the form of Common Stock or units
denominated in Common Stock, (ii) the exercise or other price in respect of
such Awards, (iii) the appropriate Fair Market Value and other price
determinations for such Awards and (iv) the Stock Based Awards Limitations
shall each be proportionately adjusted by the Board to reflect such
transaction; provided that such adjustments shall only be such as are
necessary to maintain the proportionate interest of the holders of the
Awards and preserve, without exceeding, the value of such Awards. In the
event of a corporate merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation, the Board shall be
authorized to issue substitute Awards, as appropriate, for previously
issued Awards or to assume previously issued Awards as part of such
adjustment.
15. Restrictions. No Common Stock or other form of payment shall be
issued with respect to any Award unless the Company shall be satisfied based on
the advice of its counsel that such issuance will be in compliance with
applicable federal and state securities laws. Certificates evidencing shares of
Common Stock delivered under this Plan (to the extent that such shares are so
evidenced) may be subject to such stop transfer orders and other restrictions as
the Committee may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any securities exchange
or transaction reporting system upon which the
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Common Stock is then listed or to which it is admitted for quotation and any
applicable federal or state securities law. The Committee may cause a legend or
legends to be placed upon such certificates (if any) to make appropriate
reference to such restrictions.
16. Unfunded Plan. Insofar as it provides for Awards of cash, Common
Stock or rights thereto, this Plan shall be unfunded. Although bookkeeping
accounts may be established with respect to Participants who are entitled to
cash, Common Stock or rights thereto under this Plan, any such accounts shall be
used merely as a bookkeeping convenience. The Company shall not be required to
segregate any assets that may at any time be represented by cash, Common Stock
or rights thereto, nor shall this Plan be construed as providing for such
segregation, nor shall the Company, the Board or the Committee be deemed to be a
trustee of any cash, Common Stock or rights thereto to be granted under this
Plan. Any liability or obligation of the Company to any Participant with
respect to an Award of cash, Common Stock or rights thereto under this Plan
shall be based solely upon any contractual obligations that may be created by
this Plan and any Award Agreement, and no such liability or obligation of the
Company shall be deemed to be secured by any pledge or other encumbrance on any
property of the Company. Neither the Company nor the Board nor the Committee
shall be required to give any security or bond for the performance of any
obligation that may be created by this Plan.
17. Governing Law. This Plan and all determinations made and actions
taken pursuant hereto, to the extent not otherwise governed by mandatory
provisions of the Code or the securities laws of the United States, shall be
governed by and construed in accordance with the laws of the State of Delaware.
18. Effectiveness. This Plan shall be effective on December 2, 1998.
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