FX ENERGY, INC.
1998 STOCK OPTION AND AWARD PLAN
FX ENERGY, INC., a Nevada corporation (the "Company"), hereby adopts this
"FX Energy, Inc., 1998 Stock Option and Award Plan" (the "Plan"), effective as
of the 10th day of November, 1998, under which options to acquire stock of the
Company or bonus stock may be granted from time to time to employees, officers,
and directors, of the Company or its subsidiaries. In addition, at the
discretion of the Board of Directors or other administrator of this Plan,
options to acquire stock of the Company or bonus stock may from time to time be
granted under this Plan to other individuals who contribute to the success of
the Company or its subsidiaries but who are not employees, officers, or
directors of the Company, all on the terms and conditions set forth herein.
1. Purpose of the Plan. The Plan is intended to aid the Company in
maintaining and developing a management team, attracting qualified executives
and employees capable of assisting in the future success of the Company, and
rewarding those individuals who have contributed to the success of the Company.
It is designed to aid the Company in retaining the services of executives and
employees and in attracting new personnel when needed for future operations and
growth and to provide such personnel with an incentive to remain employees of
the Company, to use their best efforts to promote the success of the Company's
business, and to provide them with an opportunity to obtain or increase a
proprietary interest in the Company. It is also designed to permit the Company
to reward those individuals who are not employees of the Company but who are
perceived by management as having contributed to the success of the Company or
who are important to the continued business and operations of the Company. The
above aims will be effectuated through the granting of options ("Options") to
purchase shares of common stock of the Company, par value $0.001 per share (the
"Stock"), or the granting of awards of bonus stock ("Stock Awards"), all subject
to the terms and conditions of this Plan. It is intended that the Options
issued pursuant to this Plan include, when designated as such at the time of
grant, options which qualify as Incentive Stock Options ("Incentive Options")
within the meaning of section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any amendment or successor provision of like tenor. If
the Company has a class of securities registered under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), it is intended that Options or
Stock Awards granted pursuant to this Plan qualify for the exemption provided
for in Rule 16b-3 promulgated under the Exchange Act ("Rule 16b-3") or any
amendment or successor rule of like tenor when granted in accordance with the
provisions of such rule.
2. Shareholder Approval. The Plan shall become effective immediately on
adoption by the Board of Directors of the Company (the "Board") and awards under
the Plan can be made at that time or at any subsequent time. The Plan shall be
submitted to the Company's shareholders in the manner set forth below:
(a) Within 12 months after the Plan has been adopted by the Board,
the Plan shall be submitted for approval by those shareholders of the
Company who are entitled to vote on such matters at a duly held
shareholders' meeting or approved by the unanimous written consent of the
holders of the issued and outstanding Stock of the Company. If the Plan is
presented at a shareholders' meeting, it shall be approved by the
affirmative vote of the holders of a majority of the issued and outstanding
Stock in attendance, in person or by proxy, at such meeting.
Notwithstanding the foregoing, the Plan may be approved by the shareholders
in any other manner not inconsistent with the Company's articles of
incorporation and bylaws, the applicable provisions of state corporate
laws, and the applicable provisions of the Code and regulations adopted
thereunder.
(b) In the event the Plan is so approved, the secretary of the
Company shall, as soon as practicable following the date of final approval,
prepare and attach to this Plan certified copies of all relevant
resolutions adopted by the shareholders and the Board.
(c) Failure to obtain shareholder approval on or before the date that
is twelve months subsequent to the adoption of this Plan by the Board shall
not invalidate this Plan or affect awards previously granted under the
Plan; provided that none of the Options issued under this Plan will qualify
as Incentive Options.
3. Administration of the Plan. Administration of the Plan shall be
determined by the Board. Subject to compliance with applicable provisions of
the governing law, the Board may delegate administration of the Plan or specific
administrative duties with respect to the Plan, on such terms and to such
committees of the Board as it deems proper. Any Option or Stock Award approved
by the Board shall be approved by a majority vote of those members of the Board
in attendance at a meeting at which a quorum is present. Any Option or Stock
Award approved by a committee designated by the Board shall be approved as
specified by the Board at the time of delegation. The interpretation and
construction of the terms of the Plan by the Board or duly authorized committee
shall be final and binding on all participants in the Plan absent a showing of
demonstrable error. No member of the Board or duly authorized committee shall
be liable for any action taken or determination made in good faith with respect
to the Plan.
The Board's or duly authorized committee's determination under the Plan
(including without limitation determinations of the persons to receive Options
or Stock Awards, the form, amount, and timing of such Options or Stock Awards,
the terms and provisions of such Options or Stock Awards, and the agreements
evidencing same) need not be uniform and may be made by the Board or duly
authorized committee selectively among persons who receive, or are eligible to
receive, Options or Stock Awards under the Plan, whether or not such persons are
similarly situated.
4. Shares of Stock Subject to the Plan. A total of 500,000 shares of
Stock may be subject to, or issued pursuant to, Options or Stock Awards granted
under the terms of this Plan. Any shares subject to an Option or Stock Award
under the Plan, which Option or Stock Award for any reason expires or is
forfeited, terminated, or surrendered unexercised as to such shares, shall be
added back to the total number of shares reserved for issuance under the terms
of this Plan. If any right to acquire Stock granted under the Plan is exercised
by the delivery of shares of Stock or the relinquishment of rights to shares of
Stock, only the net shares of Stock issued (the shares of Stock issued less the
shares of Stock surrendered) shall count against the total number of shares
reserved for issuance under the terms of this Plan.
5. Reservation of Stock on Granting of Option. At the time of granting
any Option under the terms of this Plan, there will be reserved for issuance on
the exercise of the Option the number of shares of Stock of the Company subject
to such Option. The Company may reserve either authorized but unissued shares
or issued shares that have been reacquired by the Company.
6. Eligibility. Options or Stock Awards under the Plan may be granted to
employees, including officers and directors, of the Company or its subsidiaries,
as may be existing from time to time, and to other individuals who are not
employees of the Company as may be deemed in the best interest of the Company by
the Board or duly authorized committee. Such Options or Stock Awards shall be
in the amounts, and shall have the rights and be subject to the restrictions, as
may be determined by the Board or duly authorized committee at the time of
grant, all as may be within the general provisions of this Plan.
7. Term of Options and Certain Limitations on Right to Exercise.
(a) Each Option shall have the term established by the Board or duly
authorized committee at the time the Option is granted but in no event may
an Option have a term in excess of ten years.
(b) The term of the Option, once it is granted, may be reduced only
as provided for in this Plan or under the written provisions of the Option.
(c) Unless otherwise specifically provided by the written provisions
of the Option, no holder or his or her legal representative, legatee, or
distributee will be, or shall be deemed to be, a holder of any shares
subject to an Option unless and until the holder exercises his or her right
to acquire all or a portion of the Stock subject to the Option and delivers
the required consideration to the Company in accordance with the terms of
this Plan and the Option and then only to the extent of the number of
shares of Stock acquired. Except as specifically provided in this Plan or
as otherwise specifically provided by the written provisions of the Option,
no adjustment to the exercise price or the number of shares of Stock
subject to the Option shall be made for dividends or other rights for which
the record date is prior to the date the Stock subject to the Option is
acquired by the holder.
(d) Options under the Plan shall vest and become exercisable at such
time or times and on such terms as the Board or duly authorized committee
may determine at the time of the grant of the Option.
(e) Options granted under the Plan shall contain such other
provisions, including, without limitation, further restrictions on the
vesting and exercise of the Option, as the Board or duly authorized
committee shall deem advisable.
(f) In no event may an Option be exercised after the expiration of
its term.
(g) Unless otherwise specifically provided by the written provisions
of an Option granted pursuant to this Plan, upon receipt of (i) any request
that the exercise of the Option or the resale of any shares of Stock issued
or to be issued on exercise of such Option will be registered under the
Securities Act; or (ii) any notice of exercise of the Option pursuant to
its terms, in lieu of any obligation to effect any registration with
respect to the Options or shares of Stock issuable on such Option or in
lieu of delivering shares of Stock on the exercise of the Option, the
Company may, within five business days of receipt of such request to
register or notice of exercise, purchase, in whole or in part, such Options
from the Optionee at an amount in cash equal to the difference between (a)
the then current fair market value (as defined below) of the Stock on the
day of such repurchase and (b) the exercise price in effect on such day.
In order to exercise such right, the Company must provide written notice to
the optionee at least five days prior to the date that the Company proposes
to repurchase such Options. For purposes of this section, the fair market
value of the Stock shall be determined by the Board or duly authorized
committee based on the closing price for the Stock as quoted on a
registered national securities exchange or, if not listed on a national
exchange, the Nasdaq Stock Market ("Nasdaq"), on the trading day
immediately preceding the date that the Company provides notice of its
intent to repurchase the Options, or, if not listed on such an exchange or
included on Nasdaq, the closing price for the Stock as determined by the
Board or duly authorized committee through any other reliable means of
determination available on the close of business on the trading day last
preceding the date of providing the notice.
8. Exercise Price. The exercise price of each Option issued under the
Plan shall be determined by the Board or duly authorized committee on the date
of grant.
9. Payment of Exercise Price. The exercise of any Option shall be
contingent on receipt by the Company of cash, certified bank check to its order,
or other consideration acceptable to the Company; provided that, at the
discretion of the Board or duly authorized committee, the written provisions of
the Option may provide that payment can be made in whole or in part in shares of
Stock of the Company that have been owned by the optionee for more than six
months or by the surrender of Options to acquire Stock from the Company that
have been held for more than six months, which Stock or Options shall be valued
at their then fair market value as determined by the Board or duly authorized
committee. Any consideration approved by the Board or duly authorized committee
that calls for the payment of the exercise price over a period of more than one
year shall provide for interest, which shall not be included as part of the
exercise price, that is equal to or exceeds the imputed interest provided for in
section 483 of the Code or any amendment or successor section of like tenor.
10. Withholding. If the grant of a Stock Award or the grant or exercise
of an Option pursuant to this Plan, or any other event in connection with any
such grant or exercise, creates an obligation to withhold income and employment
taxes pursuant to the Code or applicable state or local laws, such obligation
may, at the discretion of the Board or duly authorized committee at the time of
the grant of the Option or Stock Award and to the extent permitted by the terms
of the Option or Stock Award and the then governing provisions of the Code and
the Exchange Act, be satisfied (i) by the holder of the Option or Stock Award
delivering to the Company an amount of cash equal to such withholding
obligation; (ii) by the Company withholding from any compensation or other
amount owing to the holder of the Option or Stock Award the amount (in cash,
Stock, or other property as the Company may determine) of the withholding
obligation; (iii) by the Company withholding shares of Stock subject to the
Option or Stock Award with a fair market value equal to such obligation; or (iv)
by the holder of the Option or Stock Award either delivering shares of Stock
that have been owned by the holder for more than six months or canceling Options
or other rights to acquire Stock from the Company that have been held for more
than six months with a fair market value equal to such requirements. In all
events, delivery of shares of Stock issuable on exercise of the Option or on
grant of the Stock Award shall be conditioned upon and subject to the
satisfaction or making provision for the satisfaction of the withholding
obligation of the Company resulting from the grant or exercise of the Option,
grant of the Stock Award, or any other event. The Company shall be further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes.
11. Incentive Options--Additional Provisions. In addition to the other
restrictions and provisions of this Plan, any Option granted hereunder that is
intended to be an Incentive Option shall meet the following further
requirements:
(a) The exercise price of an Incentive Option shall not be less than
the fair market value of the Stock on the date of grant of the Incentive
Option as determined by the Board or duly authorized committee based on the
closing price for the Stock as quoted on a registered national securities
exchange or, if not listed on a national exchange, the Nasdaq Stock Market
("Nasdaq"), over the five-day trading period immediately prior to the date
of grant of such Incentive Option, or, if not listed on such an exchange or
included on Nasdaq, the closing price for the Stock as determined by the
Board or duly authorized committee through any other reliable means of
determination available on the close of business on the trading day last
preceding the date of grant of such Incentive Option and permitted by the
applicable provisions of the Code.
(b) No Incentive Option may be granted under the Plan to any
individual that owns (either of record or beneficially) Stock possessing
more than 10% of the combined voting power of the Company or any parent or
subsidiary corporation unless both the exercise price is at least 110% of
the fair market value of the Stock on the date the Option is granted and
the Incentive Option by its terms is not exercisable more than five years
after the date it is granted.
(c) Incentive Options may be granted only to employees of the Company
or its subsidiaries and only in connection with that employee's employment
by the Company or a subsidiary. Notwithstanding the above, directors and
other individuals who have contributed to the success of the Company or its
subsidiaries may be granted Incentive Options under the Plan, subject to,
and to the extent permitted by, applicable provisions of the Code and
regulations promulgated thereunder, as they may be amended from time to
time.
(d) The aggregate fair market value (determined as of the date the
Incentive Option is granted) of the shares of Stock with respect to which
Incentive Options are exercisable for the first time by any individual
during any calendar year under the Plan (and all other plans of the Company
and its subsidiaries) may not exceed $100,000.
(e) No Incentive Option shall be transferable other than by will or
the laws of descent and distribution and shall be exercisable, during the
lifetime of the optionee, only by the optionee to whom the Incentive Option
is granted.
(f) No individual acquiring shares of Stock pursuant to any Incentive
Option granted under this Plan shall sell, transfer, or otherwise convey
the Stock until after the date that is both two years after the date the
Incentive Option was granted and one year after the date the Stock was
acquired pursuant to the exercise of the Incentive Option. If any
individual makes a disqualifying disposition, he or she shall notify the
Company within 30 days of such transaction.
(g) No Incentive Option may be exercised unless the holder was,
within three months of such exercise, and had been since the date the
Incentive Option was granted, an eligible employee of the Company as
specified in the applicable provisions of the Code, unless the employment
was terminated as a result of the death or disability (as defined in the
Code and the regulations promulgated thereunder as they may be amended from
time to time) of the employee or the employee dies within three months of
the termination. In the event of termination as a result of disability,
the holder shall have a one year period following termination in which to
exercise the Incentive Option. In the event of death of the holder, the
Incentive Option must be exercised within six months after the issuance of
letters testamentary or administration or the appointment of an
administrator, executor, or personal representative, but not later than one
year after the date of termination of employment. An authorized absence or
leave approved by the Board or duly authorized committee for a period of 90
days or less shall not be considered an interruption of employment for any
purpose under the Plan.
(h) All Incentive Options shall be deemed to contain such other
limitations and restrictions as are necessary to conform the Incentive
Option to the requirements for "incentive stock options" as defined in
section 422 of the Code, or any amendment or successor statute of like
tenor.
All of the foregoing restrictions and limitations are based on the governing
provisions of the Code as of the date of adoption of this Plan. If at any time
the Code is amended to permit the qualification of an Option as an incentive
stock option without one or more of the foregoing restrictions or limitations or
the terms of such restrictions or limitations are modified, the Board or duly
authorized committee may grant Incentive Options, and may modify outstanding
Incentive Options in accordance with such changes, all to the extent that such
action by the Board or duly authorized committee does not disqualify the Options
from treatment as incentive stock options under the provisions of the Code as
may be amended from time to time.
12. Awards to Directors and Officers. To the extent the Company has a
class of securities registered under the Exchange Act, Options or Stock Awards
granted under the Plan to directors and officers (as used in Rule 16b-3
promulgated under the Exchange Act or any amendment or successor rule of like
tenor) intended to qualify for the exemption from section 16(b) of the Exchange
Act provided in Rule 16b-3 shall, in addition to being subject to the other
restrictions and limitations set forth in this Plan, be made as follows:
(a) A transaction whereby there is a grant of an Option or Stock
Award pursuant to this Plan must satisfy one of the following:
(i) The transaction must be approved by the Board or duly
authorized committee composed solely of two or more non-employee
directors of the Company (as defined in Rule 16b-3);
(ii) The transaction must be approved or ratified, in compliance
with section 14 of the Exchange Act, by either: the affirmative vote
of the holders of a majority of the securities of the Company present
or represented and entitled to vote at a meeting of the shareholders
of the Company held in accordance with the applicable laws of the
state of incorporation of the Company; or, if allowed by applicable
state law, the written consent of the holders of a majority, or such
greater percentage as may be required by applicable laws of the state
of incorporation of the Company, of the securities of the Company
entitled to vote. If the transaction is ratified by the shareholders,
such ratification must occur no later than the date of the next annual
meeting of shareholders; or
(iii) The Stock acquired must be held by the officer or
director for a period of six months subsequent to the date of the
grant; provided that if the transaction involves a derivative security
(as defined in section 16 of the Exchange Act), this condition shall
be satisfied if at least six months elapse from the date of
acquisition of the derivative security to the date of disposition of
the derivative security (other than on exercise or conversion) or its
underlying equity security.
(b) Any transaction involving the disposition by the Company of its
securities in connection with Options or Stock Awards granted pursuant to
this Plan shall:
(i) be approved by the Board or duly authorized committee
composed solely of two or more non-employee directors (as defined in
Rule 16b-3); or
(ii) be approved or ratified, in compliance with section 14 of
the Exchange Act, by either: the affirmative vote of the holders of a
majority of the securities of the Company present, or represented, and
entitled to vote at a meeting duly held in accordance with the
applicable laws of the state of incorporation of the Company or, if
allowed by applicable state law, the written consent of the holders of
a majority, or such greater percentage as may be required by
applicable laws of the state of incorporation of the Company, of the
securities of the Company entitled to vote; provided that such
ratification occurs no later than the date of the next annual meeting
of shareholders.
All of the foregoing restrictions and limitations are based on the governing
provisions of the Exchange Act and the rules and regulations promulgated
thereunder as of the date of adoption of this Plan. If at any time the
governing provisions are amended to permit an Option to be granted or exercised
or Stock Award to be granted pursuant to Rule 16b-3 or any amendment or
successor rule of like tenor without one or more of the foregoing restrictions
or limitations, or the terms of such restrictions or limitations are modified,
the Board or duly authorized committee may award Options or Stock Awards to
directors and officers, and may modify outstanding Options or Stock Awards, in
accordance with such changes, all to the extent that such action by the Board or
duly authorized committee does not disqualify the Options or Stock Awards from
exemption under the provisions of Rule 16b-3 or any amendment or successor rule
of similar tenor.
13. Stock Appreciation Rights and Other Tandem Rights. The Board or duly
authorized committee, at the time of granting any award under the terms of this
Plan, shall have the authority to grant stock appreciation rights or other
tandem rights with respect to all or some of the shares of Stock covered by such
award pursuant to which the holder shall have the right to surrender all or part
of such award and thereby exercise the tandem rights; provided, however, that
the holder shall not have such right to surrender and obtain payment during the
first six months of the term of the award, except in the event of death or
disability of the holder during such six-month period. Any payment under the
terms of the tandem rights may be made by the Company, at the discretion of the
Board or duly authorized committee as set forth in the written award, in Stock
(at its fair market value on the date of the notice of exercise, as determined
by the Board or committee) or in cash, or partly in Stock and partly in cash, as
the Company may determine. Any stock appreciation rights or other tandem rights
granted under the terms of this section may be exercised only when, and only to
the extent that, the holder is entitled to exercise all or a portion of the
underlying award. The terms of any stock appreciation or other rights granted
shall, within the provisions of this Plan, be established by the Board or
committee at the time of grant, and any rights created thereby can only be
transferred in connection with the transfer of the underlying award. Stock
appreciation rights may only be exercised at a time when the fair market value
of the Stock subject to the award exceeds the exercise price of the award.
14. Stock Awards. The Board or duly authorized committee may grant Stock
Awards to individuals eligible to participate in this Plan, in the amount, and
subject to the provisions determined by the Board or duly authorized committee.
The Board or duly authorized committee shall notify in writing each person
selected to receive a Stock Award hereunder as soon as practicable after he or
she has been so selected and shall inform such person of the number of shares he
or she is entitled to receive, the approximate date on which such shares will be
issued, and the Forfeiture Restrictions applicable to such shares. (For
purposes hereof, the term "Forfeiture Restrictions" shall mean any prohibitions
against sale or other transfer of shares of Stock granted under the Plan and the
obligation of the holder to forfeit his or her ownership of or right to such
shares and to surrender such shares to the Company on the occurrence of certain
conditions.) The Board or duly authorized committee may, at its discretion,
require the payment in cash to the Company by the award recipient of the par
value of the Stock. The shares of Stock issued pursuant to a Stock Award shall
not be sold, exchanged, transferred, pledged, hypothecated, or otherwise
disposed of during such period or periods of time which the Board or duly
authorized committee shall establish at the time of the grant of the Stock
Award. If a Stock Award is made to an employee of the Company or its
subsidiaries, the employee shall be obligated, for no consideration other than
the amount, if any, of the par value paid in cash for such shares, to forfeit
and surrender such shares as he or shall have received under the Plan which are
then subject to Forfeiture Restrictions to the Company if he or she is no longer
an employee of the Company or its subsidiaries for any reason; provided that in
the event of termination of the employee's employment by reason of death or
total and permanent disability, the Board or duly authorized committee, in its
sole discretion, may cancel the Forfeiture Restrictions. Certificates
representing shares subject to Forfeiture Restrictions shall be appropriately
legended as determined by the Board or duly authorized committee to reflect the
Forfeiture Restrictions, and the Forfeiture Restrictions shall be binding on any
transferee of the shares.
15. Assignment. At the time of grant of an Option or Stock Award, the
Board or duly authorized Committee, in its sole discretion, may impose
restrictions on the transferability of such Option or Stock Award and provide
that such Option shall not be transferable other than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations order as
defined in the Code and that, except as permitted by the foregoing, such Options
or Stock Awards, granted under the Plan and the rights and privileges thereby
conferred shall not be transferred, assigned, pledged, or hypothecated in any
way (whether by operation of law or otherwise), and shall not be subject to
execution, attachment, or similar process. On any attempt to transfer, assign,
pledge, hypothecate, or otherwise dispose of the Option or Stock Award, or of
any right or privilege conferred thereby, contrary to the provisions thereof, or
on the levy of any attachment or similar process on such rights and privileges,
the Option or Stock Award and such rights and privileges shall immediately
become null and void.
16. Additional Terms and Provisions of Awards. The Board or duly
authorized committee shall have the right to impose additional limitations on
individual awards under the Plan. For example, and without limiting the
authority of the Board or duly authorized committee, an individual award may be
conditioned on continued employment for a specified period or may be voided
based on the award holder's gross negligence in the performance of his or her
duties, substantial failure to meet written standards established by the Company
for the performance of his or her duties, criminal misconduct, or willful or
gross misconduct in the performance of his or her duties. In addition, the
Board or duly authorized committee may establish additional rights in the
holders of individual awards at the time of grant. For example, and without
limiting the authority of the Board or duly authorized committee, an individual
award may include the right to immediate payment of the value inherent in the
award on the occurrence of certain events such as a change in control of the
Company, all on the terms and conditions set forth in the award at the time of
grant. The Board or duly authorized committee may, at the time of the grant of
the Option or Stock Award, establish any other terms, restrictions, or
provisions on the exercise of an Option or the holding of Stock subject to the
Stock Award as it deems appropriate. All such terms, restrictions, and
provisions must be set forth in writing at the time of grant in order to be
effective.
17. Dilution or Other Adjustments. Unless otherwise specifically provided
by the written provisions of an Option granted pursuant to this Plan, in order
to prevent dilution of the rights under any Option granted pursuant to this
Plan, the Plan and any Options and Stock Awards shall be subject to appropriate
adjustment as follows:
(a) In the event the Company shall declare a dividend or make any
other distribution on any capital stock of the Company payable in Stock,
rights to purchase Stock, or securities convertible into Stock or shall
subdivide its outstanding shares of Stock into a greater number of shares
or combine such outstanding Stock into a smaller number of shares, then in
each such event, the aggregate number of shares of Stock then subject to
the Plan shall be increased or decreased by the same proportion and the
number of shares of Stock then covered by each outstanding Option granted
hereunder shall be adjusted so that each such Option shall be exercisable
to purchase the kind and number of shares of Stock or other securities of
the Company which the holder would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Option been exercised immediately prior to the happening of such event or
any record date with respect thereto. Whenever the number of shares of
Stock purchasable on the exercise of Options granted hereunder are adjusted
pursuant to this subparagraph, the exercise price of each such Option shall
be adjusted by multiplying the exercise price per share immediately prior
to such adjustment by a fraction (calculated to four decimal places), the
numerator of which shall be the number of shares purchasable on the
exercise of such Option immediately prior to such adjustment and the
denominator of which shall be the number of shares so purchasable
immediately thereafter. Shares awarded under the terms of a Stock Award,
whether or not then subject to Forfeiture Restrictions, shall be entitled
to the same rights as other issued and outstanding shares of Stock,
including distributions pursuant to a stock split or dividend or reduction
pursuant to a combination or consolidation, although any additional shares
of Stock issued to the holder of a Stock Award shall be subject to the same
Forfeiture Restrictions as the Stock Award.
(b) In the event the Company shall declare a dividend or make any
other distribution to the holders of its Stock, payable in evidence of its
indebtedness or assets or capital stock (excluding cash dividends or
distributions made out of current or retained earnings) or rights or
warrants to subscribe for securities, other than as referred to above, then
in each such case the exercise price per share of each Option granted
hereunder shall be adjusted to be equal to the exercise price theretofore
applicable prior to any such adjustment multiplied by a fraction
(calculated to four decimal places), the numerator of which shall be the
current market price per share of Stock on the record date for such
distribution less the then fair market value (as reasonably determined by
the Board) of the evidence of its indebtedness or assets or capital stock
so distributed applicable to one share of Stock and the denominator of
which shall be the current market price per share of Stock. Shares issued
under a Stock Award, whether or not subject to Forfeiture Restrictions,
shall be treated as issued and outstanding although any distributions with
respect to the shares awarded under the Stock Award shall be subject to the
Forfeiture Restrictions then applicable to such shares and may be held by
the Company or otherwise subject to restrictions on transfer until the
expiration of the Forfeiture Restrictions.
(c) In the event that any capital reorganization or reclassification
of the capital stock of the Company, consolidation or merger of the Company
with another entity, or sale of all or substantially all of the Company's
assets to another entity shall be effected in such a way that holders of
Stock shall be entitled to receive stock or securities of any other entity
or other assets with respect to or in exchange for Stock, other than as
referred to above, then, as a condition of any such reorganization,
reclassification, consolidation, merger, or sale, lawful adequate
provisions shall be made whereby the holders of any Option granted
hereunder shall thereafter have the right to acquire and receive on
exercise of such Option such shares of stock, securities, or other assets
as would have been issuable or payable (as part of the reorganization,
reclassification, consolidation, merger, or sale) with respect to or in
exchange for such number of outstanding shares of Stock as would have been
received on exercise of such Option immediately before such event. In any
such case, appropriate provision shall be made with respect to the rights
and interests of the holders of each Option to the end that the provisions
thereof (including without limitations provisions for adjustments of the
exercise price and for the number of shares issuable on exercise of the
Option) shall thereafter be applicable in relation to any shares of stock,
securities, or assets thereafter deliverable on the exercise of the Option.
In order to effect the foregoing, the Company may require, as a condition
to such transaction, that the holder of any Option granted hereunder be
granted an option of substantially like tenor to purchase equity securities
of such other entity so that the optionee shall be entitled to purchase the
kind and number of shares of common stock or other securities of such
entity which it would have been entitled to receive after the happening of
any of the events described above, had the Option been exercised
immediately prior to the happening of such event or any record date with
respect thereto. In the event that the exercise price of any Option granted
hereunder is adjusted pursuant to subparagraph (b) of this section, the
aggregate exercise price of any new option granted pursuant to this
subparagraph (c) shall be equal to the difference between the aggregate
exercise price of such Option immediately prior to adjustment pursuant to
subparagraph (b) of this section and the aggregate adjusted exercise price
immediately following such adjustment. Shares awarded under a Stock Award
shall be treated as issued and outstanding, whether or not subject to
Forfeiture Restrictions, although any Stock, assets, or other rights
distributed shall be subject to the Forfeiture Restrictions governing the
shares awarded under the Stock Award and, at the discretion of the Board or
duly authorized committee, may be held by the Company or otherwise subject
to restrictions on transfer by the Company until the expiration of such
Forfeiture Restrictions. The Company will not effect any such
consolidation, merger, or sale unless prior to the consummation thereof the
successor corporation resulting from such consolidation or merger or the
corporation purchasing such assets shall assume, by written instrument
mailed or delivered to the holders of each Option granted hereunder at the
last address of the holder appearing on the books of the Company, the
obligation to deliver to each such holder such shares of stock, securities,
or assets as, in accordance with the foregoing provisions, that such holder
may be entitled to acquire on exercise of such Option. Shares awarded
under a Stock Award shall be treated as issued and outstanding, whether or
not subject to Forfeiture Restrictions.
(d) In the event of a merger or consolidation of the Company with or
into another corporation or the sale of all or substantially all of their
assets as a result of which a number of shares of common stock of the
surviving or purchasing corporation greater or lesser than the number of
shares of Stock outstanding immediately prior to such merger,
consolidation, or purchase are issuable to holders of Stock, then the
exercise price and number of shares issuable on exercise of each Option
granted hereunder shall be adjusted in the same manner as though there was
a subdivision or combination of the outstanding shares of Stock.
(e) Adjustments pursuant to this provision shall be made whenever any
event described herein occurs and shall become effective on the date of the
triggering event retroactive to the record date for the determination of
shareholders entitled to receive any distribution. Whenever the number of
shares of Stock purchasable on the exercise of any Option granted hereunder
or the exercise price of any Option are adjusted, the Company shall cause
to be promptly mailed by first class mail, postage prepaid, to the holders
of each Option notice of such adjustment or adjustments and shall deliver a
resolution of the Board setting forth the number of shares purchasable on
exercise of the Option and the exercise price thereof after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment, together with the computation by which such adjustment was
made. Such resolution, in the absence of manifest error, shall be
conclusive evidence of the correctness of adjustment.
(f) All adjustments pursuant to this section shall be made by the
Board, which shall be binding on each optionee in the absence of
demonstrable error. In the event the Board determines that the adjustment
provided for above is unduly difficult or expensive to effect because of
difficulties of valuation, the Board may, at its option and as an
alternative to the adjustment, cause the Company to distribute and place in
escrow for the optionee that portion of such dividend or distribution which
the optionee would have received had it exercised the Option before the
declaration of the dividend or the making of the distribution. Upon
exercise of an Option, the optionee shall receive its portions of the
dividend, distribution, or rights.
(g) No adjustments shall be made to the Exercise Price or the number
of shares of Stock issuable on exercise of any Option granted hereunder:
(i) in connection with the issuance of any shares of Stock,
securities, or other assets on the exercise of any such Option;
(ii) in connection with the issuance of any shares of Stock,
securities or other assets on the exercise or conversion of any
rights, options, warrants, or other right or convertible securities
containing the right to purchase or acquire Stock;
(iii) in connection with the issuance of additional shares of
Stock, securities, or other assets on account of the anti-dilution
provisions contained in or relating to any Option granted hereunder or
any other option, warrant, or right to acquire Stock;
(iv) in connection with the purchase or other acquisition by the
Company of any shares of Stock, evidences of its indebtedness or
assets, or rights, options, warrants, or convertible securities
containing the right to subscribe for or purchase Common Stock;
(v) the sale or issuance by the Company of any shares of Stock,
evidences of its indebtedness or assets, or rights, options, warrants,
or convertible securities containing the right to subscribe for or
purchase Stock or other securities pursuant to options, warrants, or
other rights to acquire Stock or other securities; or
(vi) if such adjustment would require a change of less than 1% in
the number of shares purchasable on the exercise of such Option;
provided, however, that any adjustments that would otherwise be
required to be made but for this subsection shall be carried forward
and taken into account in any subsequent adjustment.
18. Options or Stock Awards to Foreign Nationals. The Board or duly
authorized committee may, in order to fulfill the purposes of this Plan and
without amending the Plan, grant Options or Stock Awards to foreign nationals or
individuals residing in foreign countries that contain provisions, restrictions,
and limitations different from those set forth in this Plan and the Options or
Stock Awards made to United States residents in order to recognize differences
among the countries in law, tax policy, and custom. Such grants shall be made
in an attempt to provide such individuals with essentially the same benefits as
contemplated by a grant to United States residents under the terms of this Plan.
19. Listing and Registration of Shares. Unless otherwise expressly
provided on the granting of an award under this Plan, the Company shall have no
obligation to register any securities issued pursuant to this Plan or issuable
on the exercise of Options granted hereunder. Each award shall be subject to
the requirement that if at any time the Board or duly authorized committee shall
determine, in its sole discretion, that it is necessary or desirable to list,
register, or qualify the shares covered thereby on any securities exchange or
under any state or federal law, or obtain the consent or approval of any
governmental agency or regulatory body as a condition of, or in connection with,
the granting of such award or the issuance or purchase of shares thereunder,
such award may not be made or exercised in whole or in part unless and until
such listing, registration, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Board or duly authorized
committee.
20. Expiration and Termination of the Plan. The Plan may be abandoned or
terminated at any time by the Board or duly authorized committee except with
respect to any Options or Stock Awards then outstanding under the Plan. The
Plan shall otherwise terminate on the earlier of the date that is: (i) ten
years after the date the Plan is adopted by the Board; or (ii) ten years after
the date the Plan is approved by the shareholders of the Company.
21. Form of Awards. Awards granted under the Plan shall be represented by
a written agreement which shall be executed by the Company and which shall
contain such terms and conditions as may be determined by the Board or duly
authorized committee and permitted under the terms of this Plan. Option
agreements evidencing Incentive Options shall contain such terms and conditions,
among others, as may be necessary in the opinion of the Board or duly authorized
committee to qualify them as incentive stock options under section 422 of the
Code or any amendment or successor statute of like tenor.
22. No Right of Employment. Nothing contained in this Plan or any Option
or Stock Award shall be construed as conferring on a director, officer, or
employee any right to continue or remain as a director, officer, or employee of
the Company or its subsidiaries.
23. Leaves of Absence. The Board or duly authorized committee shall be
entitled to make such rules, regulations, and determinations as the Board or
duly authorized committee deems appropriate under the Plan in respect of any
leave of absence taken by the recipient of any Option or Stock Award. Without
limiting the generality of the foregoing, the Board or duly authorized committee
shall be entitled to determine (a) whether or not any such leave of absence
shall constitute a termination of employment within the meaning of the Plan, and
(b) the impact, if any, of any such leave of absence on any Option or Stock
Award under the Plan theretofore made to any recipient who takes such leave of
absence.
24. Amendment of the Plan. The Board or duly authorized committee may
modify and amend the Plan in any respect; provided, however, that to the extent
such amendment or modification would cause the Plan to no longer comply with the
applicable provisions of the Code with respect to Incentive Options, such
amendment or modification shall also be approved by the shareholders of the
Company. Subject to the foregoing and, if the Company is subject to the
provisions of 16(b) of the Exchange Act, the limitations of Rule 16b-3
promulgated under the Exchange Act or any amendment or successor rule of like
tenor, the Plan shall be deemed to be automatically amended as is necessary (i)
with respect to the issuance of Incentive Options, to maintain the Plan in
compliance with the provisions of section 422 of the Code, and regulations
promulgated thereunder from time to time, or any amendment or successor statute
thereto, and (ii) with respect to Options or Stock Awards granted to officers
and directors of the Company, to maintain the awards made under the Plan in
compliance with the provisions of Rule 16b-3 promulgated under the Exchange Act
or any amendment or successor rule of like tenor.
ATTEST:
Scott Duncan, Secretary
SECRETARY'S CERTIFICATE
The undersigned, the duly constituted and elected secretary of FX Energy,
Inc., hereby certifies that a duly constituted meeting of the shareholders held
on , 1999, pursuant to notice and at which a quorum was present in
accordance with the requirements of law and the Company's articles of
incorporation and bylaws, the foregoing FX Energy, Inc. 1998 Stock Option and
Award Plan was approved by the affirmative vote of the holders of a majority of
the shares of Common Stock in attendance, in person or by proxy, at such
meeting.
DATED this day of , 1999.
Scott Duncan, Secretary