Exhibit 10.45
SWIFT ENERGY
COMPANY
EMPLOYEE STOCK PURCHASE
PLAN
(Generally Amended and Restated
As of January 1, 2009)
SWIFT ENERGY
COMPANY
EMPLOYEE STOCK PURCHASE
PLAN
(Amended and Restated As of
January 1, 2009)
Table of Contents
ARTICLE I -
NATURE OF PLAN
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3
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ARTICLE II -
DEFINITIONS AND CONSTRUCTION
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3
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3
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5
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5
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ARTICLE III -
ELIGIBILITY AND PARTICIPATION
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5
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5
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6
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6
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ARTICLE IV -
PAYROLL DEDUCTION AUTHORIZATION
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6
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6
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WITHDRAWAL OF
PAYROLL DEDUCTION ACCOUNT
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7
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ARTICLE V -
PURCHASE OF STOCK
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7
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GRANT OF
OPPORTUNITY TO PURCHASE STOCK
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7
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8
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9
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9
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9
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11
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11
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12
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ARTICLE VI -
COMPENSATION COMMITTEE
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12
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12
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POWERS OF THE
COMPENSATION COMMITTEE
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13
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AUTHORIZED
REPRESENTATIVE
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14
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14
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ARTICLE VII -
AMENDMENT AND TERMINATION
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14
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14
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14
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ARTICLE VIII -
MISCELLANEOUS
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15
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EXECUTION OF
RECEIPTS AND RELEASES
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15
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NO GUARANTEE OF
INTERESTS
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15
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15
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15
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INTERPRETATIONS
AND ADJUSTMENTS
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15
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15
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15
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16
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16
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16
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16
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16
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8.14
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16
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8.15
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16
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8.16
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16
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8.17
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16
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8.18
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NO LIABILITY
FOR GOOD FAITH DETERMINATIONS
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ARTICLE IX -
ADOPTION OF PLAN BY PARTICIPATING EMPLOYERS
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9.1
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17
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9.2
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APPLICATION OF
PLAN PROVISIONS
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9.3
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POWERS
EXERCISABLE ONLY BY SWIFT ENERGY COMPANY
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SWIFT ENERGY
COMPANY
EMPLOYEE STOCK PURCHASE
PLAN
(Amended and Restated as of
January 1, 2009)
ARTICLE I - NATURE OF
PLAN
This employee stock purchase plan is hereby
established for the purpose of providing all employees of Swift
Energy Company, a Texas corporation, and its adopting Subsidiary or
Subsidiaries, if any, with the opportunity to acquire a proprietary
interest in the Company, thereby increasing their interest in their
Employer’s welfare, and encouraging them to remain in the
employ of their Employer.
ARTICLE II - DEFINITIONS AND
CONSTRUCTION
. For the purpose of this
Plan, the following definitions shall apply unless the context
requires otherwise:
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COMPENSATION
COMMITTEE shall mean the
Compensation Committee of the Board of Directors, plus such other
individuals who are appointed by the Board of Directors pursuant to
Section 6.1.
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BOARD OF
DIRECTORS shall mean the
Board of Directors of the Company unless otherwise indicated or the
context otherwise requires.
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CODE shall mean the Internal Revenue Code of 1986, as
amended.
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COMPANY shall mean Swift Energy Company, a Texas
corporation, or any successor thereto which shall adopt this
Plan.
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COMPENSATION shall mean an Employee’s base salary or
wages received for personal services rendered to the Employer as an
Employee which are actually paid during the Plan Year and which are
subject to withholding for Federal income tax purposes, plus
amounts excluded from the gross income of an Employee under
sections 125, 402(a)(8), 402(h)(1)(B), or 403(b) of the
Code. Compensation shall not include commissions based
on sales, bonuses, or overtime pay.
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EFFECTIVE
DATE shall mean January
1, 2009, except as otherwise provided herein. The
increase in the number of shares of Stock available for grant under
the Plan was approved by the shareholders of the Company on May 13,
2008, and the amendment and restatement of the Plan was authorized
by the Board of Directors on February 11, 2008. The
stock to be sold hereunder was properly registered under federal
securities law.
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EMPLOYEE shall mean any person who, on or after the
Effective Date, is in the employ of the Employer and whose wages
therefrom are subject to withholding for purposes of Federal income
taxes and the Federal Insurance Contributions Act; provided,
however, that Employee shall not include any person who customarily
works less than one thousand (1000) hours of service per
year. “Hour of service” shall mean an hour
of service as determined for purposes of the Swift Energy Company
Employee Savings Plan.
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EMPLOYER shall mean the Company and each Participating
Employer, if any.
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HUMAN
RESOURCES DEPARTMENT shall mean the Human Resources Department of the
Company or such other individuals or department as may be
designated by the Compensation Committee.
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OFFERING
PERIOD shall mean that
period to be determined by the Compensation Committee beginning on
the date the Employees are offered the opportunity to purchase
Stock hereunder, during which each eligible Employee shall
determine whether and to what extent he desires to participate by
authorizing payroll deductions. Until changed by the
Compensation Committee in its sole and absolute discretion, a new
Offering Period shall begin on the first day of each Plan Year and
shall end on the last day of such Plan Year.
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PARENT shall mean a domestic or foreign corporation of
which not less than 50% of the total combined voting power of all
classes of stock is held either any corporation other than the
Company in an unbroken chain of corporations (ending with the
Company, and in which not less than 50% of the total combined
voting power of all classes of stock is held by each corporation in
the chain), without regard to whether such corporation now exists
or is hereafter organized or acquired.
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PARTICIPANT shall mean an Employee or former Employee who
has been offered the opportunity to purchase Stock hereunder and
who has elected to participate herein by authorizing payroll
deductions.
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PARTICIPATING EMPLOYER shall mean a corporation, partnership or other
trade or business which has adopted this Plan pursuant to Article
IX for its own Employees.
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PAYROLL
DEDUCTION ACCOUNT shall
mean that separate account maintained hereunder to record the
amount of a Participant’s Compensation that has been withheld
hereunder.
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PAYROLL
DEDUCTION PERIOD shall
mean that period beginning on the first day of each Plan Year and
ending on the earlier of:
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The latest date
for which a Participant receives his last paycheck from the
Employer after his employment with the Employer terminates;
or
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The last day of
the Plan Year.
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PLAN shall mean the Swift Energy Company Employee
Stock Purchase Plan, as generally amended and restated on January
1, 2009, and as may be amended from time to time.
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PLAN
YEAR shall mean the
twelve (12) calendar months, beginning on January 1 and ending on
December 31 of each year.
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PRIOR
PLAN shall mean the Swift
Energy Company Employee Stock Purchase Plan in effect immediately
before this restatement.
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STOCK shall mean the common stock, par value $.01 per
share, of the Company.
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SUBSIDIARY shall mean a domestic or foreign corporation of
which not less than 50% of the total combined voting power of all
classes of stock is held either by (i) the Company or (ii) any
other corporation in an unbroken chain of corporations (beginning
with the Company, and in which not less than 50% of the total
combined voting power of all classes of stock is held by each
corporation in the chain), without regard to whether such
corporation now exists or is hereafter organized or
acquired.
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. Except when otherwise
indicated by the context, any masculine terminology used herein
also includes the feminine and neuter, and vice versa, and the
singular shall also include the plural, and vice
versa. The words “hereof,”
“herein” and “hereunder,” and other similar
compounds of the word “here” shall mean and refer to
the entire Plan and not to any particular provision or
section. All references to Sections or Articles shall
mean and refer to Sections and Articles contained in this Plan
unless otherwise indicated.
. It is the intention of
the Company that the Plan be qualified as an employee stock
purchase plan under the provisions of section 423 of the Code, and
all provisions shall be construed to that
result. Moreover, the provisions of the Plan shall apply
only to an Employee who is in the employ of the Employer on or
after the Effective Date.
ARTICLE III - ELIGIBILITY
AND PARTICIPATION
. Each Employee,
excluding officers of the Company and its subsidiaries, who has
attained age twenty-one (21) and who is an Employee as of the first
business day of a given Offering Period shall be eligible to
participate in such Offering Period under the Plan.
. Any Employee who is
eligible to participate herein may become a Participant only by
filing a written election to participate with the Human Resources
Department that authorizes payroll deductions during the Offering
Period under Section 4.1. An Employee may elect to participate for
less than the maximum number of shares which he has been offered
the opportunity to purchase by authorizing a payroll deduction
under Section 4.1 of a percentage of Compensation less than the
percentage determined by the Board of Directors under Section
5.1(b).
. An Employee who is
otherwise eligible to participate herein may waive his right to
participate for any Offering Period by declining to authorize a
payroll deduction. Such declination must be filed in
writing with the Human Resources Department in the time and manner
specified thereby. The filing of a written declination
shall result in the Employee’s waiver of participation for
only the Offering Period to which it relates and shall be
irrevocable with respect to such Offering Period. Except
as otherwise provided in this Section, an Employee’s waiver
of participation for a specified Offering Period shall not, in and
of itself, adversely impact the right of such Employee to
participate in the Plan during any subsequent Offering Periods
except those Offering Periods with respect to which he files
additional written declinations with the Human Resources Department
in accordance with the provisions of this Section. Failure to
timely authorize payroll deductions for an Offering Period shall
not be treated as if the Participant declined in writing to
authorize such deductions, but shall instead be treated as a zero
percent (0%) election under Section 4.1.
ARTICLE IV - PAYROLL
DEDUCTION AUTHORIZATION
. Each Employee who is
eligible and elects, pursuant to Article III, prior to the
beginning of a Payroll Deduction Period to participate herein shall
authorize the making of payroll deductions to fund the purchase of
the Stock he has agreed to purchase hereunder by completing and
returning a Participant election form to the Human Resources
Department in such form and manner as the Compensation Committee
shall determine. Deductions shall be made pro-rata at
the regular payroll periods applicable to the Participant during
the Payroll Deduction Period and shall be credited to the
Participant’s Payroll Deduction Account.
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Amount of
Payroll Deductions . A Participant may authorize payroll
deductions in an amount of either (i) zero percent (0%) or (ii) not
less than one percent (1%) nor more than ten percent (10%) (in
multiples of one percent (1%)) of his Compensation for the Plan
Year. A Participant who authorizes a payroll deduction
of zero percent (0%) shall not be deemed to have waived
participation pursuant to Section 3.3.
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Change in
Authorization . A Participant may not vary the
amount of his payroll deduction for any Payroll Deduction Period;
provided, however, that notwithstanding the foregoing, he may (i)
elect to stop his payroll deductions effective with the first
payroll occurring thirty (30) days after the Human Resources
Department’s receipt of his written election to stop his
payroll deductions and (ii) with at least thirty (30) days advance
written notice to the Human Resource Department, elect to decrease
his payroll deduction rate, within the limits specified in
subsection (a) of this Section, effective on the first (1st) day of
the calendar quarter next following the date of his
notice. A Participant’s election to stop his
payroll deductions shall be treated as a waiver of participation
under Section 3.3 for the remainder of the Offering Period in which
the cessation occurs. A Participant’s election to
decrease his payroll deduction rate to zero percent (0%) shall not
be deemed to be a waiver of participation pursuant to Section
3.3.
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WITHDRAWAL
OF PAYROLL DEDUCTION ACCOUNT
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. Notwithstanding
anything contained herein to the contrary, any amounts remaining
credited to a Participant’s Payroll Deduction Account on the
last day of the Plan Year, after taking into account the amount of
Stock purchased by the Participant, shall be refunded to the
Participant in cash; provided, however, that amounts credited to a
Participant’s Payroll Deduction Account may be refunded
earlier than the last day of the Plan Year upon a waiver of
participation under Section 3.3 by a Participant, and, subject to
Section 6.5 , such amount shall be
refunded to the Participant within a reasonable time after the
Human Resources Department receives the waiver of
participation.
ARTICLE V - PURCHASE OF
STOCK
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GRANT OF
OPPORTUNITY TO PURCHASE STOCK
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. For each Offering
Period during the term of the Plan, unless the Board of Directors
determines otherwise, an offering shall be made under which all
Employees eligible to participate in the Plan pursuant to Section
3.1 are granted the opportunity to purchase Stock.
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Date of
Grant . Subject to Section 5.2 and
5.3 , all grants made hereunder
shall be deemed to have been made on the same date, which date
shall be the date on which the maximum amount of Stock that can be
purchased under the grant and the minimum purchase price for the
Stock will be fixed or determinable. The date of grant
shall be the first day of the Offering Period.
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Amount of
Grant . Each
Employee who is eligible to participate herein shall be granted an
opportunity to purchase up to that number of whole shares of Stock
which could be purchased at the price determined in accordance with
Section 5.4, with an amount equal to such percentage, not to exceed
ten percent (10%), as the Board of Directors determines, of an
Employee’s Compensation which Participant has chosen to add
to his Payroll Deduction Account for the Plan Year beginning
coincident with the Offering Period.
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. No more than 750,000
shares of Stock may be purchased by Participants hereunder, of
which 500,000 shares of Stock were authorized under the Prior
Plan. The maximum number of shares of Stock that may be
granted to any Participant during an Offering Period shall not
exceed 1,000 shares of Stock or, if less, the amount determined
under Section 5.3(b) as of
the first day of the Offering Period for such Participant;
provided, however, that:
(a) the maximum number of shares of
Stock that may be purchased during any Offering Period may be
increased or decreased as determined by the Compensation Committee
prior to the first day of any such Offering Period; and
(b) notwithstanding the directly
preceding or any other provision in the Plan to the contrary, if
during an Offering Period more than fifty percent (50%) of the
shares of Stock (which are available for issuance under the first
sentence of this Section 5.2) will otherwise be purchased
under the Plan by Participants during the Offering Period, the
Compensation Committee may subject to Section 6.5 further limit the
number of shares of Stock that can be purchased by all Participants
during such Offering Period by establishing a lower fixed number of
shares of Stock that can be purchased during such Offering Period
by all Participants but only to the extent necessary to ensure that
such fifty percent (50%) limit is not exceeded.
Either authorized and unissued
shares or issued shares heretofore or hereafter reacquired by the
Employer may be made subject to purchase under the Plan, in the
sole and absolute discretion of the Compensation
Committee. Further, except if the Participant purchases
more than the maximum number of shares of Stock permitted under
this Section 5.2 , if for any
other reason any purchase of Stock under the Plan is not
consummated, shares subject to such purchase agreement may be
subjected to a new purchase agreement under the Plan.
Notwithstanding the foregoing
provision, if the shares of Stock subject to purchase hereunder are
increased, decreased, changed into, or exchanged for a different
number or kind of shares or securities of the Company through
reorganization, merger, recapitalization, reclassification, stock
split-up or similar event, an appropriate and proportionate
adjustment shall be made in the number and kind of shares as to
which purchases are or may be made hereunder. &
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