exv10w44






Exhibit 10.44




1997 INCENTIVE PLAN

of

BRIGHAM EXPLORATION COMPANY

(As Amended Effective May 28, 2009)




     1. Plan. This 1997 Incentive Plan of Brigham Exploration Company (the “Plan”) was adopted by
the Board of Directors of Brigham Exploration Company (the “Company”) to reward certain key
employees of the Company and its consolidated subsidiaries by enabling them to acquire shares of
Common Stock, par value $.01 per share, of the Company and/or to be compensated for individual
performances.



     2. Objectives. The Plan is designed to attract and retain key employees of the Company and its
Subsidiaries (as hereinafter defined), to encourage the sense of proprietorship of such employees
and to stimulate the active interest of such persons in the development and financial success of
the Company and its Subsidiaries. These objectives are to be accomplished by making Awards (as
hereinafter defined) under this Plan and thereby providing Participants (as hereinafter defined)
with a proprietary interest in the growth and performance of the Company and its Subsidiaries.



     3. Definitions. As used herein, the terms set forth below shall have the following respective
meanings:




     “Authorized Officer” means the Chairman of the Board or the Chief Executive Officer of
the Company (or any other senior officer of the Company to whom either of them shall
delegate the authority to execute any Award Agreement).




     “Award” means the grant of any Option, SAR, Stock Award, Cash Award or Performance
Award, whether granted singly, in combination or in tandem, to a Participant pursuant to
such applicable terms, conditions and limitations as the Committee may establish in order to
fulfill the objectives of the Plan.




     “Award Agreement” means a written agreement between the Company and a Participant
setting forth the terms, conditions and limitations applicable to an Award.




     “Board” means the Board of Directors of the Company.




     “Cash Award” means an award denominated in cash.




     “Code” means the Internal Revenue Code of 1986, as amended from time to time.




     “Committee” means such committee of the Board as is designated by the Board to
administer the Plan.




     “Common Stock” means the Common Stock, par value $.01 per share, of the Company.



 









 






     “Company” means Brigham Exploration Company, a Delaware corporation.




     “Dividend Equivalents” means, with respect to shares of Restricted Stock that are to be
issued at the end of the Restriction Period, an amount equal to all dividends and other
distributions (or the economic equivalent thereof) that are payable to stockholders of
record during the Restriction Period on a like number of shares of Common Stock.




     “Effective Date” has the meaning set forth in paragraph 18 hereof.




     “Employee” means an employee of the Company or any of its Subsidiaries.




     “Fair Market Value” of a share of Common Stock means, as of a particular date, (i) if
shares of Common Stock are listed on a national securities exchange, the mean between the
highest and lowest sales price per share of Common Stock on the consolidated transaction
reporting system for the principal national securities exchange on which shares of Common
Stock are listed on that date, or, if there shall have been no such sale so reported on that
date, on the last preceding date on which such a sale was so reported, (ii) if the Common
Stock is not so listed, the mean between the closing bid and asked price on that date, or,
if there are no quotations available for such date, on the last preceding date on which such
quotations shall be available, as reported by the Nasdaq Stock Market, or, if not reported
by the Nasdaq Stock Market, by Pink OTC Markets Inc. (or its successor, or if Pink OTC
Markets Inc. or its successor does not then exist, such over-the-counter quotation service
as the Board shall determine), or (iii) if shares of Common Stock are not publicly traded,
the most recent value determined in good faith by the Board using a “reasonable application
of a reasonable valuation method” within the meaning of Treasury Regulation Section
1.409A-1(b)(5)(iv)(B).




     “Incentive Option” means an Option that is intended to comply with the requirements set
forth in Section 422 of the Code.




     “Nonqualified Stock Option” means an Option that is not an Incentive Option.




     “Option” means a right to purchase a specified number of shares of Common Stock at a
specified price.




     “Participant” means an Employee to whom an Award has been made under this Plan.




     “Performance Award” means an award made pursuant to this Plan to a Participant that is
subject to the attainment of one or more Performance Goals.




     “Performance Goal” means a standard established by the Committee to determine in whole
or in part whether a Performance Award shall be earned.




     “Restricted Stock” means any Common Stock that is restricted or subject to forfeiture
provisions.



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     “Restriction Period” means a period of time beginning as of the date upon which an
Award of Restricted Stock is made pursuant to this Plan and ending as of the date upon which
the Common Stock subject to such Award is no longer restricted or subject to forfeiture
provisions.




     “SAR” means a right to receive a payment, in cash or Common Stock, equal to the excess
of the Fair Market Value or other specified valuation of a specified number of shares of
Common Stock on the date the right is exercised over a specified strike price, in each case,
as determined by the Committee.




     “Stock Award” means an award in the form of shares of Common Stock or units denominated
in shares of Common Stock.




     “Subsidiary” means (i) in the case of a corporation, any corporation in which the
Company directly or indirectly owns shares representing more than 50% of the combined voting
power of the shares of all classes or series of capital stock of such corporation which have
the right to vote generally on matters submitted to a vote of the stockholders of such
corporation and (ii) in the case of a partnership or other business entity not organized as
a corporation, any such business entity of which the Company directly or indirectly owns
more than 50% of the voting, capital or profits interests (whether in the form of
partnership interests, membership interests or otherwise).



     4. Eligibility. Employees eligible for Awards under this Plan are those key Employees who hold
positions of responsibility and whose performance, in the judgment of the Committee, can have a
significant effect on the success of the Company and its Subsidiaries. Notwithstanding the
foregoing, Employees that provide services to Subsidiaries that are not considered a single
employer with the Company under Code Section 414(b) or Code Section 414(c) shall not be eligible to
receive Awards which are subject to Code Section 409A until the Subsidiary adopts this Plan as a
participating employer in accordance with Section 20.



     5. Common Stock Available for Awards. Subject to the provisions of paragraph 14 hereof, there
shall be available for Awards under this Plan granted wholly or partly in Common Stock (including
rights or options that may be exercised for or settled in Common Stock) an aggregate number of
shares of Common Stock equal to the lesser of (a) 6,962,648 or (ii) 15% percent of the total number
of shares of Common Stock outstanding from time to time. The number of shares of Common Stock that
are the subject of Awards under this Plan, that are forfeited or terminated, expire unexercised,
are settled in cash in lieu of Common Stock or in a manner such that all or some of the shares
covered by an Award are not issued to a Participant or are exchanged for Awards that do not involve
Common Stock, shall again immediately become available for Awards hereunder. The Committee may from
time to time adopt and observe such procedures concerning the counting of shares against the Plan
maximum as it may deem appropriate. The Board and the appropriate officers of the Company shall
from time to time take whatever actions are necessary to file any required documents with
governmental authorities, stock exchanges and transaction reporting systems to ensure that shares
of Common Stock are available for issuance pursuant to Awards.



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     6. Administration.




     (a) This Plan shall be administered by the Committee.




     (b) Subject to the provisions hereof, the Committee shall have full and exclusive power
and authority to administer this Plan and to take all actions that are specifically
contemplated hereby or are necessary or appropriate in connection with the administration
hereof. The Committee shall also have full and exclusive power to interpret this Plan and to
adopt such rules, regulations and guidelines for carrying out this Plan as it may deem
necessary or proper, all of which powers shall be exercised in the best interests of the
Company and in keeping with the objectives of this Plan. The Committee may, in its
discretion, provide for the extension of the exercisability of an Award, accelerate the
vesting or exercisability of an Award, eliminate or make less restrictive any restrictions
contained in an Award, waive any restrictions or other provision of this Plan or an Award or
otherwise amend or modify an Award in any manner that is either (i) not adverse to the
Participant to whom such Award was granted or (ii) consented to by such Participant;
provided, however, that no such exercise of discretion by the Committee shall cause an Award
to fail to satisfy the requirements of Code Section 409A. The Committee may correct any
defect or supply any omission or reconcile any inconsistency in this Plan or in any Award in
the manner and to the extent the Committee deems necessary or desirable to further the Plan
purposes. Any decision of the Committee in the interpretation and administration of this
Plan shall lie within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned.




     (c) No member of the Committee or officer of the Company shall be liable for anything
done by him or her, by any member of the Committee or by any officer of the Company in
connection with the performance of any duties under this Plan, except for his or her own
willful misconduct or as expressly provided by statute.



     7. Delegation of Authority. The Committee may delegate to the Chief Executive Officer and to
other senior officers of the Company its duties under this Plan pursuant to such conditions or
limitations as the Committee may establish.



     8. Awards. The Committee shall determine the type or types of Awards to be made under this
Plan and shall designate from time to time the Employees who are to be the recipients of such
Awards. The Committee shall review and consider the recommendations of the President of the Company
as to such Awards. Awards shall become effective only upon and after approval by the Committee.
Each Award may be embodied in an Award Agreement, which shall contain such terms, conditions and
limitations as shall be determined by the Committee in its sole discretion and shall be signed by
the Participant to whom the Award is made and by an Authorized Officer for and on behalf of the
Company. Awards may consist of those listed in this paragraph 8 hereof and may be granted singly,
in combination or in tandem. Awards may also be made in combination or in tandem with, in
replacement of, or as alternatives to, grants or rights under this Plan or any other employee plan
of the Company or any of its Subsidiaries, including the plan of any acquired entity. Any provision
of this Plan to the contrary notwithstanding, the



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maximum number of shares of Common Stock for which Options and SARs may be granted under the
Plan to any one Employee during a calendar year is 500,000. An Award may provide for the grant or
issuance of additional, replacement or alternative Awards upon the occurrence of specified events,
including the exercise of the original Award granted to a Participant. All or part of an Award may
be subject to conditions established by the Committee, which may include, but are not limited to,
continuous service with the Company and its Subsidiaries, achievement of specific business
objectives, increases in specified indices, attainment of specified growth rates and other
comparable measurements of performance. Upon the termination of employment by a Participant, any
unexercised, deferred, unvested or unpaid Awards shall be treated as set forth in the applicable
Award Agreement.




     (a) Option. An Award may be in the form of an Option. An Option awarded pursuant to
this Plan may consist of an Incentive Option or a Nonqualified Stock Option. The maximum
number of shares of Common Stock with respect to which any Option may be granted to an
Employee hereunder is the number of shares available for Awards, pursuant to paragraph 5
hereof, at the time such Option is granted. Subject to the provisions of this Plan, the
terms, conditions and limitations applicable to any Options awarded pursuant to this Plan,
including the term of any Options and the date or dates upon which they become exercisable,
shall be determined by the Committee.




     (i) Nonqualified Stock Option. A Nonqualified Stock Option may be granted only
to Employees of the Company or a corporation or other entity in a chain of
corporations and/or other entities in which the Company, directly or indirectly, has
a “controlling interest” within the meaning of Treasury Regulation Section
1.414(c)-2(b)(2)(i), but using the threshold of 50% ownership wherever 80% appears.
The price at which shares of Common Stock may be purchased upon the exercise of a
Nonqualified Stock Option shall be such amount as shall be determined by the
Committee, but not less than 100% of the Fair Market Value of the Common Stock on
the date of grant.




     (ii) Incentive Option. An Incentive Option may be granted only to Employees of
the Company or a “subsidiary corporation” of the Company, as such term is defined in
Code Section 424(f). The price at which shares of Common Stock may be purchased upon
the exercise of any Incentive Option shall be not less than 100% of the Fair Market
Value of the Common Stock on the date of grant and such Incentive Option must not be
exercisable after the expiration of ten years from the date such Option is granted,
except that with respect to Incentive Options granted to any Participant who at the
time of such grant owns stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company, the exercise price shall be not less
than 110% of the Fair Market Value of the Common Stock on the date of grant and such
Incentive Option must not be exercisable after the expiration of five years from the
date such Option is granted. To the extent the aggregate Fair Market Value
(determined as of the dates the respective Incentive Options are granted) of Common
Stock with respect to which Incentive Options are exercisable for the first time by
an individual during any calendar year under all incentive stock



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option plans of the Company and its parent and subsidiary corporations exceeds
$100,000, such excess Incentive Options shall be treated as options that do not
constitute Incentive Options.




     (b) Stock Appreciation Right. An Award may be in the form of an SAR. An SAR may be
granted only to Employees of the Company or a corporation or other entity in a chain of
corporations and/or other entities in which the Company, directly or indirectly, has a
“controlling interest” within the meaning of Treasury Regulation Section
1.414(c)-2(b)(2)(i), but using the threshold of 50% ownership wherever 80% appears. The
other terms, conditions and limitations applicable to any SARs awarded pursuant to this
Plan, including the term of any SARs and the date or dates upon which they become
exercisable, shall be determined by the Committee. The exercise price of an SAR shall be
such amount as shall be determined by the Committee, but not less than 100% of the Fair
Market Value of the Common Stock on the date of grant.




     (c) Stock Award. An Award may be in the form of a Stock Award. Stock Awards may be
payable in shares of Common Stock or Restricted Stock. The terms, conditions and
limitations, including any Restriction Period, applicable to any Stock Awards granted
pursuant to this Plan shall be determined by the Committee.




     (d) Cash Award. An Award may be in the form of a Cash Award. The terms, conditions and
limitations applicable to any Cash Awards granted pursuant to this Plan shall be determined
by the Committee.




     (e) Performance Award. Without limiting the type or number of Awards that may be made
under the other provisions of this Plan, an Award may be in the form of a Performance Award.
A Performance Award shall be paid, vested or otherwise deliverable solely on account of the
attainment of one or more pre-established, objective Performance Goals established by the
Committee.



     9. Payment of Awards.




     (a) General. Payment of Awards may be made in the form of cash or Common Stock, or a
combination thereof, and may include such restrictions as the Committee shall determine,
including, in the case of Common Stock, restrictions on transfer and forfeiture provisions.
If payment of an Award is made in the form of Restricted Stock, the Award Agreement relating
to such shares shall specify whether they are to be issued at the beginning or end of the
Restriction Period. In the event that shares of Restricted Stock are to be issued at the
beginning of the Restriction Period, the certificates evidencing such shares (to the extent
that such shares are so evidenced) shall contain appropriate legends and restrictions that
describe the terms and conditions of the restrictions applicable thereto. In the event that
shares of Restricted Stock are to be issued at the end of the Restriction Period, the right
to receive such shares shall be evidenced by book entry registration or in such other manner
as the Committee may determine.



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     (b) Dividends and Interest. Rights to dividends or Dividend Equivalents may be extended
to and made part of any Award consisting of shares of Common Stock or units denominated in
shares of Common Stock, subject to such terms, conditions and restrictions as the Committee
may establish. The Committee may also establish rules and procedures for the crediting of
interest on deferred cash payments and Dividend Equivalents for Awards consisting of shares
of Common Stock or units denominated in shares of Common Stock.




     (c) Substitution of Awards. At the discretion of the Committee, a Participant may be
offered an election to substitute an Award for another Award or Awards of the same or
different type; provided, however, that such substitution shall be effective only to the
extent that it will not cause an Award that is designed to satisfy Section 409A of the Code
to fail to satisfy such section.



     10. Stock Option Exercise. The price at which shares of Common Stock may be purchased under an
Option shall be paid in full at the time of exercise in cash or, if elected by the optionee and to
the extent permitted by the optionee’s Award Agreement, the optionee may purchase such shares by
means of tendering Common Stock or surrendering another Award, including Restricted Stock, valued
at Fair Market Value on the date of exercise, or any combination thereof. The Committee shall
determine acceptable methods for Participants to tender Common Stock or other Awards. The Committee
may provide for procedures to permit the exercise or purchase of such Awards by use of the proceeds
to be received from the sale of Common Stock issuable pursuant to an Award. Unless otherwise
provided in the applicable Award Agreement, in the event shares of Restricted Stock are tendered as
consideration for the exercise of an Option, a number of the shares issued upon the exercise of the
Option, equal to the number of shares of Restricted Stock used as consideration therefor, shall be
subject to the same restrictions as the Restricted Stock so submitted as well as any additional
restrictions that may be imposed by the Committee. In addition, the Committee, at its sole
discretion, may provide for loans, on either a short-term or demand basis, from the Company to a
Participant to permit the payment of the exercise price of an Option.



     11. Tax Withholding. The Company shall have the right to deduct applicable taxes from any
Award payment and withhold, at the time of delivery or vesting of cash or shares of Common Stock
under this Plan, an appropriate amount of cash or number of shares of Common Stock or a combination
thereof for payment of taxes required by law or to take such other action as may be necessary in
the opinion of the Company to satisfy all obligations for withholding of such taxes, including,
withholding from other amounts payable to or with respect to the Participant by the Company. The
Committee may also permit withholding to be satisfied by the transfer to the Company of shares of
Common Stock theretofore owned by the holder of the Award with respect to which withholding is
required. If shares of Common Stock are used to satisfy tax withholding, such shares shall be
valued based on the Fair Market Value when the tax withholding is required to be made. The
Committee may provide for loans, on either a short-term or demand basis, from the Company to a
Participant to permit the payment of taxes required by law.



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     12. Amendment, Modification, Suspension or Termination. The Board may amend, modify, suspend
or terminate this Plan for the purpose of meeting or addressing any changes in legal requirements
or for any other purpose permitted by law, except that no amendment or alteration that would
adversely affect the rights of any Participant under any Award previously granted to such
Participant shall be made without the consent of such Participant.



     13. Transferability.




     (a) Except as provided in subsection (c) below, an Option shall be exercisable only by
the Participant during the Participant’s lifetime, or by the person to whom the
Participant’s rights shall pass by will or the laws of descent and distribution.




     (b) Except as provided in subsection (c) below, no Award and no right under any such
Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant and any such purported assignment, alienation, pledge,
attachment, sale, transfer or encumbrance shall be void and unenforceable against the
Company.




     (c) Except as otherwise provided in the Award Agreement and subject to the consent of
the Committee, a Nonqualified Stock Option may be transferred by a Participant without
consideration to immediate family members or related family trusts, limited partnerships or
similar entities on such terms and conditions as the Committee may from time to time
establish.



     14. Adjustments.




     (a) The existence of outstanding Awards shall not affect in any manner the right or
power of the Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the capital stock of the Company or
its business or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock (whether or not such issue is prior to, on a
parity with or junior to the Common Stock) or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any other corporate
act or proceeding of any kind, whether or not of a character similar to that of the acts or
proceedings enumerated above.




     (b) In the event of any subdivision or consolidation of outstanding shares of Common
Stock, declaration of a dividend payable in shares of Common Stock or other stock split,
then (i) the number of shares of Common Stock reserved under this Plan, (ii) the number of
shares of Common Stock covered by outstanding Awards in the form of Common Stock or units
denominated in Common Stock, (iii) the exercise or other price in respect of such Awards and
(iv) the appropriate Fair Market Value and other price determinations for such Awards shall
each be proportionately and equitably adjusted by the Board to reflect such transaction. In
the event of any other recapitalization or capital reorganization of the Company, any
consolidation or merger of the Company with another corporation or entity, the adoption by
the Company of any



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plan of exchange affecting the Common Stock or any distribution to holders of Common
Stock of securities or property (other than normal cash dividends or dividends payable in
Common Stock), the Board shall make appropriate and equitable adjustments to (i) the number
of shares of Common Stock covered by Awards in the form of Common Stock or units denominated
in Common Stock, (ii) the exercise or other price in respect of such Awards and (iii) the
appropriate Fair Market Value and other price determinations for such Awards, to give effect
to such transaction; provided that such adjustments shall only be such as are necessary to
maintain the proportionate interest of the holders of the Awards and preserve, without
exceeding, the value of such Awards. In the event of a corporate merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation, the Board shall
be authorized to issue or assume Awards by means of substitution of new Awards, as
appropriate, for previously issued Awards or to assume previously issued Awards as part of
such adjustment. Notwithstanding the foregoing, outstanding Incentive Options shall be
adjusted only in accordance with Sections 422 and 424 of the Code and the regulations
thereunder, and outstanding Nonqualified Stock Options and SARs shall be adjusted only in
accordance with Section 409A of the Code and the regulations thereunder.



     15. Restrictions. No Common Stock or other form of payment shall be issued with respect to any
Award unless the Company shall be satisfied based on the advice of its counsel that such issuance
will be in compliance with applicable federal and state securities laws. Certificates evidencing
shares of Common Stock delivered under this Plan (to the extent that such shares are so evidenced)
may be subject to such stop transfer orders and other restrictions as the Committee may deem
advisable under the rules, regulations and other requirements of the Securities and Exchange
Commission, any securities exchange or transaction reporting system upon which the Common Stock is
then listed or to which it is admitted for quotation and any applicable federal or state securities
law. The Committee may cause a legend or legends to be placed upon such certificates (if any) to
make appropriate reference to such restrictions.



     16. Unfunded Plan. Insofar as it provides for Awards of cash, Common Stock or rights
thereto, this Plan shall be unfunded. Although bookkeeping accounts may be established with respect
to Participants who are entitled to cash, Common Stock or rights thereto under this Plan, any such
accounts shall be used merely as a bookkeeping convenience. The Company shall not be required to
segregate any assets that may at any time be represented by cash, Common Stock or rights thereto,
nor shall this Plan be construed as providing for such segregation, nor shall the Company, the
Board, the Committee or any officer or other employee of the Company be deemed to be a trustee of
any cash, Common Stock or rights thereto to be granted under this Plan. Any liability or obligation
of the Company to any Participant with respect to an Award of cash, Common Stock or rights thereto
under this Plan shall be based solely upon any contractual obligations that may be created by this
Plan and any Award Agreement, and no such liability or obligation of the Company shall be deemed to
be secured by any pledge or other encumbrance on any property of the Company. None of the Company,
the Board, the Committee or any other officer or other employee of the Company shall be required to
give any security or bond for the performance of any obligation that may be created by this Plan.



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     17. Governing Law. This Plan and all determinations made and actions taken pursuant hereto, to
the extent not otherwise governed by mandatory provisions of the Code or the securities laws of the
United States, shall be governed by and construed in accordance with the laws of the State of
Delaware.



     18. Effectiveness. This Plan shall be effective as of February 26, 1997, (the “Effective
Date”), the date on which it was approved by the Board of Directors of the Company. Notwithstanding
the foregoing, the ability of the Company to issue any Incentive Options under this Plan is
expressly conditioned upon the approval of the Plan by the holders of a majority of shares of
Common Stock before the first anniversary of the Effective Date. If the Stockholders of the Company
should fail to so approve this Plan prior to such date, the Company’s ability to issue Incentive
Options under this Plan shall terminate and cease to be of any further force or effect and any and
all grants of Incentive Options hereunder shall be null and void.



     19. Code Section 409A. Notwithstanding any other provision of the Plan to the contrary, any
Award subject to Code Section 409A is intended to satisfy the application of Code Section 409A to
the Award and the terms of the Award shall be interpreted in a manner consistent with such intent.



     20. Adoption by Subsidiaries. With the consent of the Committee, any Subsidiary that is not
considered a single employer with the Company under Code Section 414(b) or Code Section 414(c) may
adopt the Plan for the benefit of its Employees by written instrument delivered to the Committee
before the grant to such Subsidiary’s Employees under the Plan of any Award subject to Code Section
409A.




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