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Exhibit 4.3
LOMAK PETROLEUM, INC.
1997 STOCK PURCHASE PLAN
ARTICLE I
PURPOSE
The purpose of the Plan is to provide Eligible Persons, as defined herein,
of Lomak Petroleum, Inc. (the "Company") with an opportunity to purchase Common
Stock of the Company and thereby participate in the growth and future prospects
of the Company. Each Participant will be entitled to purchase Common Stock at
prices ranging from between 50% to 85% of the then fair market value of Common
Stock. The Plan is not intended to comply with the provisions of Section 423 of
the Internal Revenue Code of 1986, as amended.
ARTICLE II
DEFINITIONS
The following terms, when capitalized, shall have the meanings specified
below unless the context clearly indicates to the contrary.
2.1 "Board of Directors" shall mean the Board of Directors of the
Company.
2.2 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
2.3 "Committee" or "Stock Purchase Plan Committee" shall mean the Stock
Purchase Plan Committee appointed by the Board of Directors in
accordance with Article III of the Plan.
2.4 "Committee Member" shall mean any past, present or future member of
the Committee.
2.5 "Common Stock" shall mean the Common Stock, $.01 par value per
share, of the Company.
2.6 "Company" shall mean Lomak Petroleum, Inc., a Delaware corporation.
2.7 "Effective Date" shall mean the date the Plan is declared operative
by the Board of Directors.
2.8 "Eligible Person" shall, with respect to any Purchase Date, mean
only those persons who are officers, directors, key employees or
consultants of the Company, as determined in the discretion of the
Committee.
2.9 "Offering" shall mean the offering of shares of Common Stock to
Eligible Persons pursuant to the Plan that occurs on each Purchase
Date or on such other date or dates as the Committee may determine.
2.10 "Participant" shall mean an Eligible Person who elects to
participate in the Plan.
2.11 "Plan" shall mean the Lomak Petroleum, Inc. 1997 Stock Purchase
Plan, as amended.
2.12 "Plan Year" shall mean each calendar year during the term of the
Plan commencing on January 1, 1997.
2.13 "Preferred Stock" shall mean the Preferred Stock, $1 par value per
share, of the Company.
2.14 "Purchase Amount" shall mean an amount, not less than $1,000 in any
Plan Year and not more than such amounts as may from time to time be
determined by the Committee, to be applied to the purchase of Common
Stock pursuant to this Plan.
2.15 "Purchase Date" shall mean the last business day of March, June,
September and December in each Plan Year or any such other date or
dates as the Committee may determine.
2.16 "Stock Purchase Account" shall mean each separate account maintained
for a Participant under the Plan, collectively or singly as the
context requires. All Accounts shall be fully vested at all times.
The Committee
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may create special types of Stock Purchase Accounts for
administrative reasons, even though the Stock Purchase Accounts are
not expressly authorized by the Plan.
2.17 "Vested" shall mean non-forfeitable.
The masculine gender, whenever used in this Plan, includes the feminine,
the singular includes the plural and the plural includes the singular unless the
context otherwise requires.
ARTICLE III
ADMINISTRATION OF PLAN
The Plan shall be administered by the Stock Purchase Plan Committee
appointed by the Board of Directors and shall consist of three persons, all of
whom shall be either directors or employees of the Company. Members of the
Committee may be removed at any time by the Board of Directors and the Board of
Directors shall have the power to fill any vacancy which may occur in the
Committee. The Committee shall have full and final authority to make rules and
regulations, subject to the express provisions of the Plan, for the
administration of the Plan, to decide who shall be Eligible Persons and
Participants in the Plan to determine, the maximum Purchase Amount, to determine
the method and times of purchase of shares of Common Stock, to determine the
purchase price of any shares of Common Stock sold to Participants hereunder, and
to settle any disputes which may arise under the terms of the Plan. The
Committee's interpretations and decisions with regard to the provisions of the
Plan and any rules or regulations promulgated thereunder shall be final and
conclusive. A majority of the Committee shall constitute a quorum, and acts of a
majority of the members present at any meeting at which a quorum is present, or
acts approved in writing by a majority of the Committee, shall be deemed the
acts of the Committee.
ARTICLE IV
SHARES
There shall be 500,000 shares of Common Stock reserved under the Plan,
subject to adjustment in accordance with Article XIV hereof. The shares of
Common Stock subject to the Plan shall be either shares of authorized but
unissued Common Stock or shares of Common Stock reacquired on the open market or
otherwise for the account of the Participants. The Committee shall determine
from time to time whether the shares of Common Stock shall be authorized but
unissued shares or reacquired shares.
ARTICLE V
ENTRY INTO THE PLAN; PAYMENT FOR SHARES
The Committee shall determine, prior to any Purchase Date, the number of
shares that any Eligible Person shall be entitled to purchase on such Purchase
Date pursuant to the Plan. An Eligible Person may become a Participant in the
Plan only by filing with the Committee, at the address of the Company, a
consent, in such form as the Committee shall approve, to become a Participant.
The method of payment for the purchase of shares of Common Stock shall be
determined by the Committee and may include, without limitation, cash,
promissory notes, payroll deductions or any other method or combination thereof.
No share of the Company's Common Stock may be issued to a Participant until such
time as the Share has been fully paid for as provided above.
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ARTICLE VII
PURCHASE OF SHARES
On each Purchase Date, the amount credited to each Participant's Stock
Purchase Account shall be applied to purchase, in the manner and on the terms
herein provided, the number of whole shares of Common Stock determined by
dividing (a) the amount theretofore contributed by the Participant pursuant to
Article V hereof and not theretofore applied to the purchase of Common Stock by
(b) the purchase price per share of Common Stock as determined pursuant to
Article VIII hereof. Any amount remaining in a Participant's Stock Purchase
Account shall be held in such account and applied to the purchase of shares of
Common Stock on the next Purchase Date, as determined by the Committee. Except
as a holder of shares of Common Stock purchased for a Participant's account, a
Participant shall have no greater rights with respect to his Stock Purchase
Account than an unsecured creditor of the Company.
ARTICLE VIII
PURCHASE PRICE
The purchase price per share of any shares of Common Stock sold to any
Participant hereunder shall, in the discretion of the Committee in respect of
any Purchase Date, be between fifty percent (50%) and eighty-five percent (85%)
of the fair market value (including transaction costs) of shares of Common Stock
on the Purchase Date. In determining the purchase price per share of any shares
of the Company's Common Stock sold to any Participants hereunder, the Committee
may consider a number of factors, including the performance and future prospects
of the Company and the relationship of the fair market value of the Company's
Common Stock to other indicia of value. Anything herein to the contrary
notwithstanding, the purchase price for shares of authorized but unissued Common
Stock of the Company purchased pursuant to this Plan shall not be less than the
par value of the Common Stock. For purposes of the Plan, the fair market value
of shares of Common Stock on any date shall be determined as follows:
(a) If the Common Stock is then listed on a national securities exchange,
the "fair market value" shall be the closing price of a share of Common Stock on
such exchange on the last preceding business day on which shares of Common Stock
were traded.
(b) If the Common Stock is then not listed on a national securities
exchange, the "fair market value" shall be the closing price of a share of
Common Stock in the over-the-counter market as reported by the Nasdaq Stock
Market - National Market System ("Nasdaq") on that date or as reported on such
other similar system then in use.
(c) If the Common Stock is not then reported by Nasdaq or by such other
similar system then in use, the "fair market value" shall be the closing big
price as furnished by a professional market maker making a market in the Common
Stock as selected by the Board of Directors.
(d) If neither (a), (b) nor (c) applies, the "fair market value" shall be
determined in good faith by the Committee. Such determination shall be binding
on all persons.
(e) In any event, the "fair market value" shall be adjusted to include
actual transaction costs and expenses, including broker commissions and fees,
stock transfer taxes and the like, of reaquisition of shares of Common Stock on
the open market or otherwise.
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ARTICLE IX
ISSUANCE OF SHARES; STOCK CERTIFICATES
The shares of Common Stock purchased by a Participant on a Purchase Date
shall, for all purposes, be deemed to have been issued and sold at the close of
business on such Purchase Date. Prior to that time, none of the rights or
privileges of a stockholder of the Company shall exist with respect to such
shares.
As soon as practicable after each Purchase Date, the Company will credit
to each Participant's Stock Purchase Account, all whole shares purchased by each
Participant on such Purchase Date. Certificates representing Common Stock
purchased pursuant to the Plan may be registered in nominee or broker name or in
the name of the Participant, unless the Participant shall otherwise instruct the
Committee. The Company will deliver, or cause to be delivered, a certificate for
the number of shares purchased if requested by the Participant. All dividends
paid with respect to the shares in a Participant's Stock Purchase Account shall
be credited to such account, and, unless the Participant otherwise elects,
dividends credited to his Stock Purchase Account will be automatically applied
to the purchase of whole shares of Common Stock on the next succeeding Purchase
Date. With respect to shares of Common Stock purchased for the account of a
Participant, the Participant shall be entitled to vote or to consent as a
stockholder to any action with respect to which other stockholders of the
Company are entitled to vote or give consent.
ARTICLE X
WITHDRAWAL
A Participant may withdraw from the Plan at any time during a Plan Year,
upon at least thirty days prior written notice, by filing a written notice of
withdrawal. Upon a Participant's withdrawal, the entire amount credited to his
Stock Purchase Account and not previously applied to the purchase of Common
Stock shall be promptly refunded to him. Partial withdrawal will not be
permitted. Any Participant who withdraws from the Plan may again become a
Participant hereunder in accordance with Article V hereof.
ARTICLE XI
TERMINATION OF EMPLOYMENT OR AGENCY RELATIONSHIP
In the event of termination of the employment or retention relationship
between a Participant and the Company, for any reason, including death or
permanent disability (as defined in Section 22(e) (3) of the Code), the entire
amount credited to his Stock Purchase Account and not previously applied to the
purchase of Common Stock shall promptly be refunded to the Participant, or to
the Participant's estate.
ARTICLE XII
PROCEDURE IF INSUFFICIENT SHARES AVAILABLE
In the event that on any Purchase Date the aggregate funds available under
the Plan for the purchase of shares of Common Stock would purchase a greater
number of shares than the number of shares then available for purchase under the
Plan, the Committee shall proportionately reduce the number of shares to be
purchased by each Participant on such Purchase Date in order to eliminate such
deficiency, and the Plan shall terminate immediately after such Purchase Date.
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ARTICLE XIII
RIGHTS NOT TRANSFERABLE
Neither credit balances in a Participant's Stock Purchase Account nor any
right to purchase shares of Common Stock under the Plan may be assigned,
transferred, pledged, hypothecated or disposed of in any way and any attempted
transfer or disposition thereof shall be null and void. If a Participant
attempts to assign, transfer, pledge, hypothecate or dispose of in any way,
except by will or by the applicable laws of descent and distribution, any such
interest under the Plan, he shall be deemed to have requested withdrawal from
the Plan and the provisions of Article X hereof shall apply with respect to such
Participant.
ARTICLE XIV
RECAPITALIZATION; EFFECT OF CERTAIN TRANSACTIONS
The aggregate number of shares of Common Stock reserved for purchase under
the Plan as provided in Article IV hereof shall be appropriately adjusted by the
Board of Directors to reflect a stock dividend, stock split-up, share
combination, exchange of shares, recapitalization, merger, consolidation,
liquidation or other similar changes or transactions by the Company.
ARTICLE XV
TERMINATION AND AMENDMENT OF THE PLAN
The Plan shall continue in effect through January 1, 2007, unless
terminated prior thereto pursuant to Article XII hereof or pursuant to the next
succeeding sentence. The Board of Directors shall have the right to terminate
the Plan at any time. In the event of expiration or termination of the Plan
pursuant to this Article, the entire amount credited to the Stock Purchase
Account of each Participant hereunder and not theretofore applied to the
purchase of Common Stock shall be refunded to each such Participant.
The Board of Directors may from time to time make such amendments or
modifications to the Plan as it shall deem advisable, provided, however, that no
such action shall prejudice or diminish any right of any Participant hereunder
which shall have theretofore accrued. Other than as expressly set forth herein,
the Board of Directors may not amend the Plan if such amendment would increase
the cost thereof to the Company other than with the affirmative vote of a
majority in interest of the Company's stockholders.
ARTICLE XVI
APPLICATION OF THE FUNDS
All funds withheld by the Company pursuant to the Plan which have not been
applied to the purchase of Common Stock may be used for any corporate purpose by
the Company.
ARTICLE XVII
INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may have as
directors or officers of the Company or as members of the Committee, the members
of the Committee shall be indemnified by the Company against the reasonable
expenses, including attorney's fees actually and necessarily incurred in
connection with the defense of any action, suit or proceeding, or in connection
with any appeal therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection with the Plan and
against all amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected by the Company) or paid by
them in satisfaction of a judgment in any such action, suit or proceeding,
except in relation to matters as to which it shall be adjudged in such action,
suit or proceeding that such Committee member is liable for willful misconduct
in the performance of his duties.
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ARTICLE XVIII
TERMINATION OF RIGHT OF ACTION
Every right of action arising out of or in connection with the Plan by or
on behalf of any Participant under the Plan against the Company, or any
Committee Member will, irrespective of the place where an action may be brought
and irrespective of the place of residence of any such Participant or Committee
Member, cease and be barred by the expiration of three years from the date of
the act or omission in respect of which such right of action is alleged to have
arisen.
ARTICLE XIX
REGULATORY MATTERS
The purchase of Common Stock on behalf of the Participants pursuant to the
Plan, the issuance of Common Stock to the Participants pursuant to the Plan and
the transfer of Common Stock by participants acquired pursuant to the Plan shall
be subject to compliance with the requirements of the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, the requirements of any stock exchange upon which the
Common Stock may then be listed and shall be subject to prior approval by the
Company's legal counsel with respect to all legal matters in connection
therewith.
ARTICLE XX
CONSTRUCTION
This Plan shall be construed and enforced in accordance with the laws of
the State of Delaware.
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