EXHIBIT 10.4
ENERGY PARTNERS, LTD.
STOCK AND DEFERRAL PLAN FOR
NON-EMPLOYEE DIRECTORS
AS AMENDED AND RESTATED EFFECTIVE AS OF JULY 17, 2003
ENERGY PARTNERS, LTD.
STOCK AND DEFERRAL PLAN FOR NON-EMPLOYEE DIRECTORS
ARTICLE I PURPOSES
The purposes of the Energy Partners, Ltd. Stock and Deferral
Plan for Non-Employee Directors (the "Plan") are to provide for non-employee
directors of Energy Partners, Ltd. (the "Company") to receive at least 50% and
up to 100% of their annual retainer fees in the form of shares of the Company's
common stock (the "Shares") and 100% of their meeting fees in cash and to enable
them to defer all or part of such fees.
ARTICLE II ADMINISTRATION OF THE PLAN
The administrator of the Plan (the "Plan Administrator") shall
be the Compensation Committee of the Board of Directors of the Company (the
"Board") or such other Board committee as may be designated by the Board to
administer the Plan. Subject to the terms of the Plan, the Plan Administrator
shall have the power to construe the provisions of the Plan, to determine all
questions arising thereunder and to adopt, amend and rescind such rules and
regulations for the administration of the Plan as it may deem desirable. All
determinations made by the Plan Administrator in connection with the Plan shall
be final and binding upon all directors participating in the Plan and their
beneficiaries and successors in interest. No member of the Plan Administrator
may participate in any vote by the Plan Administrator on any matter materially
affecting the rights of any such member under the Plan.
ARTICLE III PARTICIPATION IN THE PLAN
Each member of the Board elected or appointed who is not
otherwise an employee of the Company or any subsidiary (an "Eligible Director")
shall be eligible to participate in the Plan.
ARTICLE IV DIRECTORS' FEES
Each Eligible Director shall be entitled to such retainer fees
and meeting fees as shall be established from time to time by the Company.
Subject to the deferral election described in Article V, such meeting fees shall
be payable in cash at such times as the Company shall determine. Subject to the
deferral election described in Article V, such retainer fees shall be payable in
Shares at such times as the Company shall determine; provided, however, that an
Eligible Director may instead elect, by filing an election with the Plan
Administrator on a form prescribed by the Plan Administrator before the payment
date for any such fees, to receive a percentage of such retainer fees (not
exceeding 50%) in the form of cash. The number of Shares that an Eligible
Director shall receive shall be determined by dividing the dollar
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amount of the fees to be paid in Shares by the fair market value of a Share on
the last business day before the payment date. Such fair market value shall be
determined by such methods and procedures as shall be established from time to
time by the Plan Administrator. If the Shares are listed on any established
stock exchange or a national market system, unless otherwise determined by the
Plan Administrator in good faith, such fair market value of a Share shall mean
the closing price of the Share on the date on which it is to be valued hereunder
(or, if the Shares were not traded on that date, the next preceding day that the
Shares were traded) on the principal exchange on which the Shares are traded, as
such prices are officially quoted on such exchange. The value of any fractional
share shall be paid in cash.
ARTICLE V ELECTION TO DEFER
Before each calendar year (or with respect to an individual
who first becomes an Eligible Director during a calendar year, on or before the
date on which he or she becomes an Eligible Director), each Eligible Director
may elect to have the receipt of all or a portion of his or her retainer fees
and meeting fees deferred for a period permitted by Article VII. A deferral
election pursuant to this Article V shall be irrevocable and shall be made on a
form prescribed by the Plan Administrator, which shall govern the amount
deferred, the form and timing of its payment, and the applicable earnings
alternative or alternatives pursuant to Article VI. Separate elections may be
made with respect to retainer fees and meeting fees. An Eligible Director's
deferral election shall apply only to fees earned during the applicable calendar
year or partial calendar year, as the case may be, after the date on which the
irrevocable deferral election is submitted to the Plan Administrator. If an
Eligible Director has not made a deferral election with respect to a calendar
year, his or her retainer fees and meeting fees shall be payable in accordance
with Article IV.
ARTICLE VI EARNINGS ALTERNATIVES FOR DEFERRALS
If an Eligible Director elects to defer all or any portion of
his or her retainer fees and meeting fees pursuant to Article V, the amount
deferred shall be credited to an account ("Account") maintained on the books of
the Company in the name of the Eligible Director. A separate subaccount shall be
maintained for each calendar year reflecting the elections made by the Eligible
Director with respect to the deferrals for that calendar year. With respect to
deferrals prior to the date of closing of the Company's initial public offering
and with respect to deferrals of meeting fees on or after July 17, 2003, the
amounts so deferred shall be adjusted for earnings equivalents pursuant to the
Interest Alternative described in Section 2 below. With respect to deferrals on
or after the date of closing of the Company's initial public offering other than
deferrals of meeting fees on or after July 17, 2003, the amounts so deferred
shall be adjusted for earnings equivalents pursuant to the Phantom Share
Alternative described in Section 1 below, except for any portion of the amount
deferred for which the Eligible Director elects the Interest Alternative
described in Section 2 below in his or her deferral election; provided, however,
that the Interest Alternative can be elected only with respect to such portion
of the deferral amount as the Eligible Director could have elected to receive in
cash pursuant to Article IV if he or she had not made a deferral election.
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1. PHANTOM SHARE ALTERNATIVE
Under this alternative, the applicable portion of the fees
deferred by the Eligible Director shall be treated as if they were invested on
the date that they are credited to the Eligible Director's Account in a number
of whole and fractional Shares ("Phantom Shares") equal to the number of whole
and fractional Shares that the Eligible Director would have been entitled to
receive pursuant to Article IV if such Eligible Director had not made a deferral
election with respect to such fees. The portion of the Eligible Director's
Account treated as invested in Phantom Shares is hereinafter referred to as the
"Phantom Share Account." If any cash dividends are paid on Shares during the
deferral period, the Eligible Director's Phantom Share Account shall also be
credited with additional whole and fractional Phantom Shares determined by
calculating the dividends that the Eligible Director would have received if his
or her Phantom Shares were actual Shares (disregarding dividends on fractional
Phantom Shares) and then dividing the amount of such dividends by the fair
market value of a Share on the dividend payment date. For purposes of this
Section 1 of Article VI, the fair market value of a Share shall be determined by
the Plan Administrator in accordance with Article IV. If any Share dividends are
paid on Shares during the deferral period, the Eligible Director's Phantom Share
Account shall be credited with additional Phantom Shares equal to the number of
Shares that the Eligible Director would have received as dividends if his or her
Phantom Shares were actual Shares (disregarding dividends on fractional Phantom
Shares). Neither an Eligible Director nor any beneficiary shall possess any
rights of a stockholder of the Company with respect to Phantom Shares.
2. INTEREST ALTERNATIVE
Under this alternative, the applicable portion of the fees
deferred by the Eligible Director shall be credited during the deferral period
with interest equivalents at the end of each calendar quarter (March 31, June
30, September 30, December 31) or such other periods as may be determined by the
Plan Administrator. The Plan Administrator shall determine, in its sole
discretion, the rate of interest to be used for this purpose and may at any time
and from time to time change such rate. The portion of the Eligible Director's
Account as to which this Interest Alternative shall be applicable is hereinafter
referred to as the "Interest Account."
ARTICLE VII PAYMENT OPTIONS FOR DEFERRALS
By written irrevocable election made at the time of each
deferral election, an Eligible Director must select (i) the date on which
payment of his or her Account with respect to the deferrals covered by that
election is to commence, and (ii) the form of payment. The available options in
this regard are described below:
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1. DATE ON WHICH PAYMENT WILL COMMENCE
An Eligible Director may elect any of the following payment
commencement dates:
(i) the date of his or her cessation of service as a
member of the Board of Directors for any reason,
(ii) a specified date at least one year after the
date on which payment would have been made in the absence of a
deferral election, or
(iii) the earlier of (i) and (ii) above.
2. FORM OF PAYMENT
An Eligible Director may elect any of the following payment
options:
(i) a lump sum distribution, or
(ii) payments in annual installments over a period of
years specified in the Eligible Director's deferral election.
If the Eligible Director elects payments in installments, the amount of each
installment shall be equal to the amount in the Eligible Director's Account on
the valuation date immediately preceding the payment date for the applicable
installment divided by the number of installments remaining to be paid
(including the applicable installment) (subject, in the case of the Phantom
Share Account, to adjustments for fractional shares as described in Article
VIII).
3. BENEFICIARY DESIGNATION
An Eligible Director shall designate a beneficiary or
beneficiaries to receive payments in the event of the Eligible Director's death.
Such beneficiary designation shall be made on a form prescribed by the Plan
Administrator and shall be submitted to the Plan Administrator. Such beneficiary
designation may be changed by the Eligible Director at any time by submitting a
new beneficiary designation form to the Plan Administrator. If no effective
beneficiary designation is in effect at the time of an Eligible Director's
death, the Eligible Director's beneficiary shall be the Eligible Director's
estate. The Eligible Director's elections pursuant to Section 1 and 2 of this
Article VII may include a separate election as to the payment commencement date
and form of payment to be applicable in the event of the Eligible Director's
death.
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ARTICLE VIII PAYMENT OF DEFERRED AMOUNTS
If an Eligible Director has made a deferral election pursuant
to Article V, his or her Account shall be paid out in the form elected by the
Eligible Director pursuant to Article VII commencing no later than 30 days after
the date elected by the Eligible Director pursuant to Article VII. Such payments
shall be made to the Eligible Director or, in the event of his or her death, to
his or her beneficiary determined pursuant to Section 3 of Article VII. All
payments from the Eligible Director's Interest Account shall be paid in cash.
With respect to a payment from the Eligible Director's Interest Account, the
amount to be paid in a lump sum or in any installment shall be determined based
on the value of the Eligible Director's Interest Account as of the valuation
date established by the Plan Administrator next preceding the payment date. All
payments from the Eligible Director's Phantom Share Account shall be paid in
Shares equal in number to the number of whole Phantom Shares for which the
payment is to be made and disregarding fractional shares except in the case of a
lump sum distribution or the final installment payment. In the case of such a
lump sum distribution or final installment payment, the fractional Phantom Share
shall be paid in cash in an amount equal to the applicable fraction of the fair
market value of a Share as of the valuation date established by the Plan
Administrator next preceding the payment date, such fair market value to be
determined by the Plan Administrator in accordance with Article IV.
ARTICLE IX UNFUNDED OBLIGATION, ANTI-ALIENATION
1. UNFUNDED OBLIGATION
Benefits provided by this Plan shall be payable from the
general assets of the Company. Title to and beneficial ownership of any asset
which the Company may reserve to meet its contingent obligation hereunder shall
remain in the Company, and no Eligible Director or beneficiary shall acquire any
property interest in any specific asset of the Company. No trust arrangement or
fiduciary relationship shall be created hereunder. The right of any Eligible
Director or beneficiary to receive a payment hereunder shall not be greater than
that of an unsecured general creditor of the Company. This Plan constitutes a
mere promise of the Company to make payments at the times and in the manner set
forth in this Plan.
2. ANTI-ALIENATION
A. No benefit payable under this Plan shall be subject in any
manner to anticipation, alienation, assignment, sale, transfer, pledge or
encumbrance of any kind, garnishment, attachment, execution, sequestration, levy
or other legal or equitable process, and any attempt to do so shall be void and
of no force and effect.
B. Notwithstanding anything to the contrary in the above
paragraph A of this Section 2, the Company may consent to the transfer,
assignment or pledge by an Eligible Director of any benefit under this Plan by
providing such Eligible Director with a written
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consent that has been duly authorized and consented to by the Company. Such
transfer, assignment or pledge shall be a valid transfer, assignment or pledge
of all rights and privileges held by the Eligible Director, including the right
to receive Shares, under the Plan.
ARTICLE X LIMITATION AS TO DIRECTORSHIP
Neither the Plan nor any action taken pursuant to the Plan
shall constitute or be evidence of any agreement or understanding, express or
implied, that an Eligible Director has a right to continue as a director for any
period of time or at any particular rate of compensation.
ARTICLE XI CAPITAL ADJUSTMENTS
In the event of a recapitalization, stock split, stock
dividend, exchange of shares, merger, reorganization, change in corporate
structure or shares of the Company or similar event, the Board may make such
adjustments as it deems appropriate in the number of outstanding Phantom Shares
and in the kind of securities with respect to which the Phantom Shares relate.
ARTICLE XII EXPENSES OF THE PLAN
All costs and expenses of the adoption and administration of
the Plan shall be borne by the Company; none of such expenses shall be charged
to any Eligible Director.
ARTICLE XIII EFFECTIVE DATE OF THE PLAN
The Plan shall be dated as of September 12, 2000 and shall be
effective upon approval of the Board.
ARTICLE XIV TERMINATION AND AMENDMENT OF THE PLAN
The Board may amend, terminate or suspend the Plan at any
time, in its sole and absolute discretion; provided, however, that no such
amendment, termination or suspension may, without the Eligible Director's
consent, impair the rights of such Eligible Director as to amounts deferred by
such Eligible Director prior to the date of such amendment, termination or
suspension.
ARTICLE XV GOVERNING LAW
The validity, construction, and effect of the Plan and any
rules and regulations relating to the Plan shall be determined in accordance
with the laws of Delaware without giving effect to principles of conflicts of
laws.