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EXHIBIT 4.8
OCEAN ENERGY, INC.
2001 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The OCEAN ENERGY, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN
(the "Plan") is intended to provide an incentive for employees of OCEAN ENERGY,
INC. (the "Company") and certain of its subsidiaries to acquire or increase a
proprietary interest in the Company through the purchase of shares of the
Company's common stock. The Plan is intended to qualify as an "employee stock
purchase plan" under Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code"). The provisions of the Plan shall be construed in a manner
consistent with the requirements of that section of the Code.
2. DEFINITIONS. Where the following words and phrases are used in the
Plan, they shall have the respective meanings set forth below, unless the
context clearly indicates to the contrary:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended.
(c) "Committee" means the Organization & Compensation
Committee of the Board.
(d) "Company" means Ocean Energy, Inc., a Texas corporation.
(e) "Date of Exercise" means the last day of each Option
Period.
(f) "Date of Grant" means January 1, 2001, and, thereafter,
the first day of each successive July and January.
(g) "Eligible Compensation" means regular straight-time
earnings or base salary, determined before giving effect to any salary
reduction agreement pursuant to (i) a qualified cash or deferred
arrangement (within the meaning of Section 401(k) of the Code) or (ii)
a cafeteria plan (within the meaning of Section 125 of the Code).
Eligible Compensation shall not include management incentives,
overtime, bonuses, commissions, severance pay, incentive pay, shift
premium differentials, extended work-week premiums, pay in lieu of
vacation, reimbursements, or any other special or incentive payments
excluded by the Committee in its discretion (applied in a uniform
basis).
(h) "Eligible Employee" means, with respect to each Date of
Grant, each employee of the Company or a Participating Company who, as
of such Date of Grant, is regularly scheduled to work more than 20
hours per week and more than five months in any calendar year.
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(i) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(j) "Option Period" means the six-month period beginning on
each Date of Grant.
(k) "Option Price" shall have the meaning assigned to such
term in paragraph 8(b).
(l) "Participating Company" means any present or future parent
or subsidiary corporation of the Company that participates in the Plan
pursuant to paragraph 4.
(m) "Plan" means this Ocean Energy, Inc. 2001 Employee Stock
Purchase Plan, as amended from time to time.
(n) "Stock" means the shares of the Company's common stock,
par value $.10 per share.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Committee. Subject to the provisions of the Plan, the Committee shall interpret
the Plan and all options granted under the Plan, make such rules as it deems
necessary for the proper administration of the Plan, and make all other
determinations necessary or advisable for the administration of the Plan. In
addition, the Committee shall correct any defect or supply any omission or
reconcile any inconsistency in the Plan, or in any option granted under the
Plan, in the manner and to the extent that the Committee deems desirable to
carry the Plan or any option into effect. The Committee shall, in its sole
discretion, make such decisions or determinations and take such actions, and all
such decisions, determinations and actions taken or made by the Committee
pursuant to this and the other paragraphs of the Plan shall be conclusive on all
parties. The Committee shall not be liable for any decision, determination or
action taken in good faith in connection with the administration of the Plan.
The Committee shall have the authority to delegate routine day-to-day
administration of the Plan (including the selection of a custodian for the Plan)
to such officers and employees of the Company as the Committee deems
appropriate.
4. PARTICIPATING COMPANIES. The Committee may designate any present or
future parent or subsidiary corporation of the Company that is eligible by law
to participate in the Plan as a Participating Company by written instrument
delivered to the designated Participating Company. Such written instrument shall
specify the effective date of such designation and shall become, as to such
designated Participating Company and persons in its employment, a part of the
Plan. The terms of the Plan may be modified as applied to the Participating
Company only to the extent permitted under Section 423 of the Code. Transfer of
employment among the Company and Participating Companies (and among any other
parent or subsidiary corporation of the Company) shall not be considered a
termination of employment hereunder. Any Participating Company may, by
appropriate action of its Board of Directors, terminate its participation in the
Plan. Moreover, the Committee may, in its discretion, terminate a Participating
Company's Plan participation at any time.
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5. ELIGIBILITY. Subject to the provisions hereof, all Eligible
Employees as of a Date of Grant shall be eligible to participate in the Plan
with respect to options granted under the Plan as of such date.
6. STOCK SUBJECT TO THE PLAN. Subject to the provisions of paragraph
13, the aggregate number of shares which may be sold pursuant to options granted
under the Plan shall not exceed 1,500,000 shares of the authorized Stock, which
shares may be unissued shares or reacquired shares, including shares bought on
the market or otherwise for purposes of the Plan. Should any option granted
under the Plan expire or terminate prior to its exercise in full, the shares
theretofore subject to such option may again be subject to an option granted
under the Plan. Any shares that are not subject to outstanding options upon the
termination of the Plan shall cease to be subject to the Plan.
7. GRANT OF OPTIONS.
(a) IN GENERAL. Commencing on January 1, 2001, and continuing
while the Plan remains in force, the Company shall, on each Date of Grant, grant
an option under the Plan to purchase shares of Stock to each Eligible Employee
as of such Date of Grant who elects to participate in the Plan; provided,
however, that no option shall be granted to an Eligible Employee if such
individual, immediately after the option is granted, owns stock possessing five
percent or more of the total combined voting power or value of all classes of
stock of the Company or of its parent or subsidiary corporations (within the
meaning of Sections 423(b)(3) and 424(d) of the Code). Except as provided in
paragraph 13, the term of each option shall be for six months, which shall begin
on a Date of Grant and end on the last day of such six-month period. Subject to
subparagraph 7(d), the number of shares of Stock subject to an option for a
participant shall be equal to the quotient of (i) the aggregate payroll
deductions withheld on behalf of such participant during the Option Period in
accordance with subparagraph 7(b), divided by (ii) the Option Price of the Stock
applicable to the option, rounded down to the nearest whole share; provided,
however, that the maximum number of shares of Stock that may be subject to any
option for a participant may not exceed 3,200 (subject to adjustment as provided
in paragraph 13).
(b) ELECTION TO PARTICIPATE; PAYROLL DEDUCTION AUTHORIZATION.
An Eligible Employee may participate in the Plan only by means of payroll
deduction. Except as provided in subparagraph 7(f), each Eligible Employee who
elects to participate in the Plan shall deliver to the Company, within the time
period prescribed by the Committee, a written payroll deduction authorization in
a form prepared by the Company whereby he gives notice of his election to
participate in the Plan as of the next following Date of Grant, and whereby he
designates a stated percentage of his Eligible Compensation to be deducted from
his compensation for each pay period and paid into the Plan for his account. The
designated percentage shall be an integral percentage of from 1% to 15%.
(c) CHANGES IN PAYROLL AUTHORIZATION. The payroll deduction
authorization referred to in subparagraph 7(b) may be reduced at any time during
the Option Period by the employee giving written notice to the Company that his
payroll deductions with respect to such Option Period shall thereafter be
reduced to a specific percentage (not less than 1%) of his Eligible
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Compensation. Any such reduction shall be irrevocable with respect to the
remainder of the Option Period.
(d) $25,000 LIMITATION. No employee shall be granted an option
under the Plan which permits his rights to purchase Stock under the Plan and
under all other employee stock purchase plans of the Company and its parent and
subsidiary corporations to accrue at a rate which exceeds $25,000 of fair market
value of Stock (determined at the time such option is granted) for each calendar
year in which such option is outstanding at any time (within the meaning of
Section 423(b)(8) of the Code). Any payroll deductions in excess of the amount
specified in the foregoing sentence shall be returned to the participant as soon
as administratively feasible after the next following Date of Exercise.
(e) LEAVES OF ABSENCE. During a paid leave of absence approved
by the Company and meeting the requirements of Treasury Regulation Section
1.421-7(h)(2), a participant's elected payroll deductions shall continue. A
participant may not contribute to the Plan during an unpaid leave of absence. If
a participant takes an unpaid leave of absence that is approved by the Company
and meets the requirements of Treasury Regulation Section 1.421-7(h)(2), then
such participant's payroll deductions for such Option Period that were made
prior to such leave may remain in the Plan and be used to purchase Stock under
the Plan on the Date of Exercise relating to such Option Period. If a
participant takes a leave of absence that is not described in the first or third
sentence of this subparagraph 7(e), then he shall be considered to have
terminated his employment for purposes of the Plan and withdrawn from the Plan
pursuant to the provisions of paragraph 9 hereof. Further, notwithstanding the
preceding provisions of this subparagraph 7(e), if a participant takes a leave
of absence that is described in the first or third sentence of this subparagraph
7(e) and such leave of absence exceeds 90 days, then he shall be considered to
have withdrawn from the Plan pursuant to the provisions of paragraph 9 hereof
and terminated his employment for purposes of the Plan on the 91st day of such
leave of absence.
(f) CONTINUING ELECTION. Subject to the limitation set forth
in subparagraph 7(d), a participant (i) who has elected to participate in the
Plan pursuant to subparagraph 7(b) as of a Date of Grant and (ii) who takes no
action to change or revoke such election as of the next following Date of Grant
and/or as of any subsequent Date of Grant prior to any such respective Date of
Grant shall be deemed to have made the same election, including the same
attendant payroll deduction authorization, for such next following and/or
subsequent Date(s) of Grant as was in effect immediately prior to such
respective Date of Grant. Payroll deductions that are limited by subparagraph
7(d) shall recommence at the rate provided in such participant's payroll
deduction authorization at the beginning of the first Option Period that is
scheduled to end in the following calendar year, unless the participant changes
the amount of his payroll deduction authorization pursuant to paragraph 7,
withdraws from the Plan as provided in paragraph 9, or is terminated from
participation in the Plan as provided in paragraph 10.
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8. EXERCISE OF OPTIONS.
(a) GENERAL STATEMENT. Subject to the limitation set forth in
subparagraph 7(d), each participant in the Plan automatically and without any
act on his part shall be deemed to have exercised his option on each Date of
Exercise to the extent his unused payroll deductions under the Plan are
sufficient to purchase at the Option Price whole shares of Stock subject to his
option and to the extent the issuance of Stock to such participant upon such
exercise is lawful. Any amount relating to such option that remains in his
account representing a fractional share shall be applied to the purchase of
shares of Stock during the next Option Period as if such participant had
contributed such amount by payroll deduction to the Plan during such period for
the option that relates to such period. If the total number of shares for which
options are exercised on any date of exercise exceeds the maximum number of
shares remaining to be sold under the Plan, the Company shall make a pro rata
allocation of the shares of stock available for delivery and distribution in as
nearly a uniform manner as shall be practicable and as it shall determine to be
equitable, and the balance of the payroll deductions credited to the account of
each participant under the Plan shall be refunded to him promptly.
(b) "OPTION PRICE" DEFINED. The term "Option Price" shall mean
the per share price of Stock to be paid by each participant on each exercise of
his option, which price shall be equal to 85% of the fair market value of the
Stock on the Date of Exercise or on the Date of Grant, whichever amount is less.
For all purposes under the Plan, the fair market value of a share of Stock on a
particular date shall be equal to the closing price of the Stock on the New York
Stock Exchange composite tape on that date, or if no prices are reported on that
date, on the last preceding date on which such prices of the Stock are so
reported. In the event Stock is not publicly traded at the time a determination
of its value is required to be made hereunder, the determination of its fair
market value shall be made by the Committee in such manner as it deems
appropriate.
(c) DELIVERY OF SHARE CERTIFICATES. As soon as practicable
after each Date of Exercise, the Company shall deliver to a custodian selected
by the Committee (or its delegates) one or more certificates representing (or
shall otherwise cause to be credited to the account of such custodian) the total
number of whole shares of Stock respecting options exercised on such Date of
Exercise in the aggregate of all of the participating employees hereunder. Such
custodian shall keep accurate records of the beneficial interests of each
participating employee in such shares by means of participant accounts under the
Plan, and shall provide each participating employee with semi-annual or such
other periodic statements with respect thereto as may be directed by the
Committee. If the Company is required to obtain from any U.S. commission or
agency authority to issue any such shares, the Company shall seek to obtain such
authority. Inability of the Company to obtain from any commission or agency
(whether U.S. or foreign) authority which counsel for the Company deems
necessary for the lawful issuance of any such shares shall relieve the Company
from liability to any participant in the Plan except to return to him the amount
of his payroll deductions under the Plan which would have otherwise been used
upon exercise of the relevant option.
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9. WITHDRAWAL FROM THE PLAN.
(a) GENERAL STATEMENT. Any participant may withdraw in whole
from the Plan at any time prior to the Date of Exercise relating to a particular
Option Period. Partial withdrawals shall not be permitted. A participant who
wishes to withdraw from the Plan must timely deliver to the Company a notice of
withdrawal in a form prepared by the Company. The Company, promptly following
the time when the notice of withdrawal is delivered, shall refund to the
participant the amount of his payroll deductions under the Plan which have not
yet been otherwise returned to him or used upon exercise of options; and
thereupon, automatically and without any further act on his part, his payroll
deduction authorization and his interest in unexercised options under the Plan
shall terminate.
(b) ELIGIBILITY FOLLOWING WITHDRAWAL. A participant who
withdraws from the Plan shall be eligible to participate again in the Plan upon
expiration of the Option Period following the Option Period during which he
withdrew (provided that he is otherwise eligible to participate in the Plan at
such time).
10. TERMINATION OF EMPLOYMENT.
(a) GENERAL STATEMENT. Except as provided in subparagraph
10(b), if the employment of a participant terminates for any reason whatsoever,
then his participation in the Plan automatically and without any act on his part
shall terminate as of the date of the termination of his employment. The Company
shall promptly refund to him the amount of his payroll deductions under the Plan
which have not yet been otherwise returned to him or used upon exercise of
options, and thereupon his interest in unexercised options under the Plan shall
terminate.
(b) TERMINATION BY RETIREMENT, DEATH OR DISABILITY. If the
employment of a participant terminates after such participant has attained age
65 or due to such participant's death or permanent and total disability (within
the meaning of Section 22(e)(3) of the Code), then such participant, or such
participant's personal representative, as applicable, shall have the right to
elect either to:
(1) withdraw all of such participant's accumulated
unused payroll deductions under the Plan; or
(2) exercise such participant's option as of his
retirement date, his date of death, or his date of termination due to
permanent and total disability, as applicable, for the purchase of the
number of whole shares of Stock which the accumulated payroll
deductions at the date of such participant's termination of employment
will purchase at the Option Price (subject to subparagraph 7(d)), and
receive a payment from the Company promptly after such exercise in the
amount of such participant's payroll deductions under the Plan which
have not yet been otherwise returned to him or used upon exercise of
options. For purposes of this subparagraph 10(b)(2), the date of the
participant's termination of employment will be deemed to be the Date
of Exercise for the purpose of computing the Option Price.
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The participant or, if applicable, such personal representative, must make such
election by giving written notice to the Committee within 90 days of the
participant's date of retirement, date of death, or date of termination due to
permanent and total disability, as applicable. In the event that no such written
notice of election is timely received by the Committee, the participant or
personal representative will automatically be deemed to have elected as set
forth in clause (1) above.
11. RESTRICTION UPON ASSIGNMENT OF OPTION. An option granted under the
Plan shall not be transferable otherwise than by will or the laws of descent and
distribution. Each option shall be exercisable, during his lifetime, only by the
employee to whom granted. The Company shall not recognize and shall be under no
duty to recognize any assignment or purported assignment by an employee of his
option or of any rights under his option or under the Plan.
12. NO RIGHTS OF SHAREHOLDER UNTIL EXERCISE OF OPTION. With respect to
shares of Stock subject to an option, an optionee shall not be deemed to be a
shareholder, and he shall not have any of the rights or privileges of a
shareholder, until such option has been exercised and a certificate of shares
has been issued to him.
13. CHANGES IN STOCK; ADJUSTMENTS. Whenever any change is made in the
Stock, by reason of a stock dividend or by reason of subdivision, stock split,
reverse stock split, recapitalization, reorganization, combination,
reclassification of shares or other similar change, appropriate action will be
taken by the Committee to adjust accordingly the number of shares subject to the
Plan, the maximum number of shares that may be subject to any option, and the
number and Option Price of shares subject to options outstanding under the Plan.
If the Company shall not be the surviving corporation in any merger or
consolidation (or survives only as a subsidiary of another entity), or if the
Company is to be dissolved or liquidated, then, unless a surviving corporation
assumes or substitutes new options (within the meaning of Section 424(a) of the
Code) for all options then outstanding, (i) the Date of Exercise for all options
then outstanding shall be accelerated to a date fixed by the Committee prior to
the effective date of such merger or consolidation or such dissolution or
liquidation, (ii) an employee (or his legal representative) may make a lump-sum
deposit prior to the Date of Exercise in lieu of the remaining payroll
deductions which otherwise would have been made, and (iii) upon such effective
date any unexercised options shall expire and the Company promptly shall refund
to each participant the amount of such participant's payroll deductions under
the Plan which have not yet been otherwise returned to him or used upon exercise
of options.
14. USE OF FUNDS; NO INTEREST PAID. All funds received or held by the
Company under the Plan shall be included in the general funds of the Company
free of any trust or other restriction, and may be used for any corporate
purpose. No interest shall be paid to any participant.
15. TERM OF THE PLAN. The Plan shall be effective January 1, 2001,
provided the Plan is approved by the shareholders of the Company within 12
months after the adoption by the Board. Notwithstanding any provision in the
Plan, no option granted under the Plan shall be exercisable prior to such
shareholder approval, and, if the shareholders of the Company do not approve the
Plan by the Date of Exercise of the first option granted hereunder, then the
Plan shall automatically
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terminate, no options may be exercised hereunder, and the Company promptly shall
refund to each participant the amount of such participant's payroll deductions
under the Plan; and thereupon, automatically and without any further act on his
part, his payroll deduction authorization and his interest in unexercised
options under the Plan shall terminate. Except with respect to options then
outstanding, if not sooner terminated under the provisions of paragraph 16, the
Plan shall terminate upon and no further payroll deductions shall be made and no
further options shall be granted after December 31, 2010.
16. AMENDMENT OR TERMINATION OF THE PLAN. The Board in its discretion
may terminate the Plan at any time with respect to any Stock for which options
have not theretofore been granted. The Board shall have the right to alter or
amend the Plan or any part thereof from time to time; provided, however, that no
change in any option theretofore granted may be made that would impair the
rights of the optionee without the consent of such optionee.
17. SECURITIES LAWS. The Company shall not be obligated to issue any
Stock pursuant to any option granted under the Plan at any time when the offer,
issuance or sale of shares covered by such option has not been registered under
the Securities Act of 1933, as amended, or does not comply with such other
state, federal or foreign laws, rules or regulations, or the requirements of any
stock exchange upon which the Stock may then be listed, as the Company or the
Committee deems applicable and, in the opinion of legal counsel for the Company,
there is no exemption from the requirements of such laws, rules, regulations or
requirements available for the offer, issuance and sale of such shares. Further,
all Stock acquired pursuant to the Plan shall be subject to the Company's
policies concerning compliance with securities laws and regulations, as such
policies may be amended from time to time. The terms and conditions of options
granted hereunder to, and the purchase of shares by, persons subject to Section
16 of the Exchange Act shall comply with any applicable provisions of Rule
16b-3. As to such persons, the Plan shall be deemed to contain, and such options
shall contain, and the shares issued upon exercise thereof shall be subject to,
such additional conditions and restrictions as may be required from time to time
by Rule 16b-3 to qualify for the maximum exemption from Section 16 of the
Exchange Act with respect to Plan transactions.
18. NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Company or any subsidiary from taking any
corporate action that is deemed by the Company or such subsidiary to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any option granted under the Plan. No employee,
beneficiary or other person shall have any claim against the Company or any
subsidiary as a result of any such action.
19. MISCELLANEOUS PROVISIONS.
(a) PARENT AND SUBSIDIARY CORPORATIONS. For all purposes of
the Plan, a corporation shall be considered to be a parent or subsidiary
corporation of the Company only if such corporation is a parent or subsidiary
corporation of the Company within the meaning of Sections 424(e) and (f) of the
Code.
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(b) NUMBER AND GENDER. Wherever appropriate herein, words used
in the singular shall be considered to include the plural and words used in the
plural shall be considered to include the singular. The masculine gender, where
appearing in the Plan, shall be deemed to include the feminine gender.
(c) HEADINGS. The headings and subheadings in the Plan are
included solely for convenience, and if there is any conflict between such
headings or subheadings and the text of the Plan, the text shall control.
(d) NOT A CONTRACT OF EMPLOYMENT. The adoption and maintenance
of the Plan shall not be deemed to be a contract between the Company or any
Participating Company and any person or to be consideration for the employment
of any person. Participation in the Plan at any given time shall not be deemed
to create the right to participate in the Plan, or any other arrangement
permitting an employee of the Company or any Participating Company to purchase
Stock at a discount, in the future. The rights and obligations under any
participant's terms of employment with the Company or any Participating Company
shall not be affected by participation in the Plan. Nothing herein contained
shall be deemed to give any person the right to be retained in the employ of the
Company or any Participating Company or to restrict the right of the Company or
any Participating Company to discharge any person at any time, nor shall the
Plan be deemed to give the Company or any Participating Company the right to
require any person to remain in the employ of the Company or such Participating
Company or to restrict any person's right to terminate his employment at any
time. The Plan shall not afford any participant any additional right to
compensation as a result of the termination of such participant's employment for
any reason whatsoever.
(e) COMPLIANCE WITH APPLICABLE LAWS. The Company's obligation
to offer, issue, sell or deliver Stock under the Plan is at all times subject to
all approvals of and compliance with any governmental authorities (whether
domestic or foreign) required in connection with the authorization, offer,
issuance, sale or delivery of Stock as well as all federal, state, local and
foreign laws. Without limiting the scope of the preceding sentence, and
notwithstanding any other provision in the Plan, the Company shall not be
obligated to grant options or to offer, issue, sell or deliver Stock under the
Plan to any employee who is a citizen or resident of a jurisdiction the laws of
which, for reasons of its public policy, prohibit the Company from taking any
such action with respect to such employee.
(f) SEVERABILITY. If any provision of the Plan shall be held
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining provisions hereof; instead, each provision shall be fully
severable and the Plan shall be construed and enforced as if said illegal or
invalid provision had never been included herein.
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(g) GOVERNING LAW. All provisions of the Plan shall be
construed in accordance with the laws of Texas except to the extent preempted by
federal law.
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