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EXHIBIT 10.2
CHANGE IN CONTROL
TERMINATION BENEFITS AGREEMENT
THIS CHANGE IN CONTROL TERMINATION BENEFITS AGREEMENT (the
"Agreement"), dated as of the first day of September, 1999 is between Amerada
Xxxx Corporation, a Delaware corporation (the "Company"), and Xxxxxxx X. Gugen
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Company considers it essential to the best interests of
the Company and its stockholders that its management be encouraged to remain
with the Company and to continue to devote full attention to the Company's
business in the event of a transaction or series of transactions that could
result in a change in control of the Company through a tender offer or
otherwise;
WHEREAS, the Company recognizes that the possibility of a change in
control and the uncertainty which it may raise among management may result in
the departure or distraction of management personnel to the detriment of the
Company and its stockholders;
WHEREAS, the Executive is a key Executive of the Company;
WHEREAS, the Company believes the Executive has made valuable
contributions to the productivity and profitability of the Company;
WHEREAS, should the Company receive a proposal for, or otherwise
consider any such transaction, in addition to the Executive's regular duties,
the Executive may be called upon to assist in the assessment of such proposals,
advise management and the Board of Directors of the Company (the "Board") as to
whether a proposed transaction would be in the best interests of the Company and
its stockholders, and to take such other actions as the Board might determine to
be appropriate; and
WHEREAS, the Board has determined that it is in the best interests of
the Company and its stockholders to assure that the Company will have the
continued services of the Executive, notwithstanding the possibility, threat or
occurrence of a change in control of the Company and believes that it is
imperative to diminish the potential distraction of the Executive by virtue of
the personal uncertainties and risks created by a pending or threatened change
in control, to assure the Executive's full attention and dedication to the
Company in the event of any threatened or pending change in control, and to
provide the Executive with appropriate severance arrangements following a change
in control.
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NOW, THEREFORE, to assure the Company that it will have the continued
undivided attention and services of the Executive and the availability of the
Executive's advice and counsel notwithstanding the possibility, threat or
occurrence of a change in control of the Company, and to induce the Executive to
remain in the employ of the Company, and for other good and valuable
consideration, the Company and the Executive agree as follows:
1. Change in Control.
For purposes of the Agreement, a Change in Control shall be deemed to
have taken place if any of the following shall occur:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
(the "Exchange Act")), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either the then (i)
outstanding shares of Common Stock of the Company (the "Outstanding Company
Common Stock") or (ii) combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Voting Securities") provided, however, that the
following acquisitions shall not constitute a Change in Control: (i) any
acquisition by the Company or any of its subsidiaries, (ii) any acquisition by
an employee benefit plan (or related trust) sponsored or maintained by the
Company or any of its subsidiaries, (iii) any acquisition by any company with
respect to which, following such acquisition, more than 60% of, respectively,
the then outstanding shares of common stock of such company and the combined
voting power of the then outstanding voting securities of such company entitled
to vote generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Voting Securities immediately prior to such
acquisition in substantially the same proportions as their ownership,
immediately prior to such acquisition, of the Outstanding Company Common Stock
and Outstanding Voting Securities, as the case may be, or (iv) any acquisition
by one or more Hess Entity (for this purpose a "Hess Entity" means (A) Mr. Xxxx
Xxxx or any of his children, parents or siblings, (B) any spouse of any person
described in Section (A) above, (C) any trust with respect to which any of the
persons described in (A) has substantial voting authority (D) any affiliate (as
such term is defined in Rule 12b-2 under the Exchange Act) of any person
described in (A) above, (E) the Hess Foundation Inc., or (F) any persons
comprising a group controlled (as such term is defined in such Rule 12b-2) by
one or more of the foregoing persons or entities described in this Section
1(a)(iv)); or
(b) Within any 24 month period, individuals who, immediately prior to
the beginning of such period, constitute the Board (the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director during such period whose
election, or nomination for
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election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened solicitation to
which Rule 14a-11 of Regulation 14A promulgated under the Exchange Act applies
or other actual or threatened solicitation of proxies or consents; or
(c) Consummation of a reorganization, merger or consolidation, in each
case, with respect to which all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Voting Securities immediately prior to such
reorganization, merger or consolidation do not, following such reorganization,
merger or consolidation, beneficially own, directly or indirectly, more than 60%
of, respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the company
resulting from such reorganization, merger or consolidation in substantially the
same proportions as their ownership, immediately prior to such reorganization,
merger or consolidation, of the Outstanding Company Common Stock and Outstanding
Voting Securities, as the case may be; or
(d) Consummation of (i) a complete liquidation or dissolution of the
Company or (ii) the sale or other disposition of all or substantially all of the
assets of the Company, other than to a company, with respect to which following
such sale or other disposition, more than 60% of, respectively, the then
outstanding shares of common stock of such company and the combined voting power
of the then outstanding voting securities of such company entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Voting Securities immediately prior to such sale or other
disposition in substantially the same proportion as their ownership, immediately
prior to such sale or other disposition, of the Outstanding Company Common Stock
and Outstanding Voting Securities, as the case may be. The term "the sale or
other disposition of all or substantially all of the assets of the Company"
shall mean a sale or other disposition in a transaction or series of related
transactions involving assets of the Company or of any direct or indirect
subsidiary of the Company (including the stock of any direct or indirect
subsidiary of the Company) in which the value of the assets or stock being sold
or otherwise disposed of (as measured by the purchase price being paid therefor
or by such other method as the Board determines is appropriate in a case where
there is no readily ascertainable purchase price) constitutes more than
two-thirds of the fair market value of the Company (as hereinafter defined). The
"fair market value of the Company" shall be the aggregate market value of the
then Outstanding Company Common Stock (on a fully diluted basis) plus the
aggregate market value of the Company's other outstanding equity securities. The
aggregate market value of the shares of Outstanding Company
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Common Stock shall be determined by multiplying the number of shares of such
Common Stock (on a fully diluted basis) outstanding on the date of the execution
and delivery of a definitive agreement with respect to the transaction or series
of related transactions (the "Transaction Date") by the average closing price of
the shares of Outstanding Company Common Stock for the ten trading days
immediately preceding the Transaction Date. The aggregate market value of any
other equity securities of the Company shall be determined in a manner similar
to that prescribed in the immediately preceding sentence for determining the
aggregate market value of the shares of Outstanding Company Common Stock or by
such other method as the Board shall determine is appropriate.
1. Circumstances Triggering Receipt of Termination Benefits.
(a) Subject to Section 2(c), the Company will provide the Executive
with the benefits set forth in Section 4 upon any termination of the Executive's
employment:
(i) by the Company at any time within the first 24 months
after a Change in Control;
(ii) by the Executive for "Good Reason" (as defined in Section
2(b) below) at any time within the first 24 months after a Change in
Control; or
(iii) by the Company or the Executive pursuant to Section
2(d).
(a) In the event of a Change in Control, the Executive may terminate
employment with the Company and/or any subsidiary for "Good Reason" and receive
the payments and benefits set forth in Section 4 upon the occurrence of one or
more of the following events (regardless of whether any other reason, other than
Cause as provided below, for such termination exists or has occurred):
(i) Failure to elect or reelect or otherwise to maintain the
Executive in the office or the position, or at least a substantially
equivalent office or position, of or with the Company (or any successor
thereto), which the Executive held immediately prior to a Change in
Control, or the removal of the Executive as a director of the Company
(or any successor thereto), if the Executive shall have been a director
of the Company immediately prior to the Change in Control;
(ii) (A) Any material adverse change in the nature or scope of
the Executive's authorities, powers, functions, responsibilities or
duties from those in effect immediately prior to the Change in Control,
(B) a reduction in the Executive's annual base salary rate, (C) a
reduction in the Executive's
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annual incentive compensation target or any material reduction in the
Executive's other bonus opportunities, or (D) the termination or denial
of the Executive's ability to participate in Employee Benefits (as
defined in Section 4(b)) or retirement benefits (as described in
Section 4(c)) or a material reduction in the scope or value thereof,
any of which is not remedied by the Company within 10 days after
receipt by the Company of written notice from the Executive of such
change, reduction or termination, as the case may be;
(iii) The liquidation, dissolution, merger, consolidation or
reorganization of the Company or transfer of all or substantially all
of its businesses and/or assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or
otherwise) to which all or substantially all of its businesses and/or
assets have been transferred (directly or by operation of law) assumed
all duties and obligations of the Company under this Agreement pursuant
to Section 9(a);
(iv) The Company requires the Executive to change the
Executive's principal location of work to a location that is in excess
of 30 miles from the location thereof immediately prior to the Change
in Control, or requires the Executive to travel in the course of
discharging the Executive's responsibilities or duties at least 20%
more (in terms of aggregate days in any calendar year or in any
calendar quarter when annualized for purposes of comparison to any
prior year) than was required of the Executive in any of the three full
years immediately prior to the Change in Control without, in either
case, the Executive's prior written consent;
(v) Without limiting the generality or effect of the
foregoing, any material breach of this Agreement by the Company or any
successor thereto, which breach is not remedied within 10 days after
written notice to the Company from the Executive describing the nature
of such breach.
(a) Notwithstanding Sections 2(a) and (b) above, no benefits shall be
payable by reason of this Agreement in the event of:
(i) Termination of the Executive's employment with the Company
and/or its subsidiaries by reason of the Executive's death or
Disability, provided that the Executive has not previously given a
valid "Notice of Termination" pursuant to Section 3. For purposes
hereof, "Disability" shall be defined as the inability of the Executive
due to illness, accident or other physical or mental disability to
perform the Executive's duties for any period of six consecutive months
or for any period of eight months out of any 12-month period, as
determined by an independent physician selected by the Executive (or
the Executive's legal representative) and reasonably acceptable to the
Company, provided that the Executive does not return to work on
substantially a full-time basis within 30 days after written notice
from the
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Company, pursuant to Section 3, of an intent to terminate the
Executive's employment due to Disability;
(ii) Termination of the Executive's employment with the
Company and/or its subsidiaries on account of the Executive's
retirement, pursuant to the Company's Employees' Pension Plan;
provided, however, that if the Executive has Good Reason to terminate
employment at the time of retirement, the Executive's retirement shall
be treated hereunder as a termination of the Executive's employment for
Good Reason and the Executive shall be entitled to the benefits
provided in Section 4 hereof;
(iii) Termination of the Executive's employment with the
Company and its subsidiaries for Cause. For the purposes hereof,
"Cause" shall be defined as (A) a felony conviction of the Executive or
the failure of the Executive to contest prosecution for a felony, (B)
the Executive's gross and willful misconduct in connection with the
performance of the Executive's duties with the Company and/or its
subsidiaries or (C) the willful and continued failure of the Executive
to substantially perform the Executive's duties with the Company (or
any successor thereto) after a written demand from the Company's
internal Executive Committee, any successor or similar internal
management committee or, absent any such committee, its Chief Executive
Officer (such committee, or the Chief Executive Officer, being the
"Notifying Party") for substantial performance which specifically
identifies the manner in which the Notifying Party believes that the
Executive has not performed the Executive's duties with the Company,
any of which is directly and materially harmful to the business or
reputation of the Company or any subsidiary or affiliate.
Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for "Cause" hereunder unless and until the
Executive shall have been afforded, after reasonable notice, an
opportunity to appear, together with counsel (if the Executive chooses
to have counsel present), before the Notifying Party, if the Notifying
Party is a committee, or in the event that the Notifying Party is the
Chief Executive Officer, the three most highly compensated senior
executive officers of the Company, not including the Chief Executive
Officer (such Notifying Party or the three senior executive officers,
as the case may be, being the "Hearing Party"), and after such hearing
there shall have been delivered to the Executive a written
determination by the Hearing Party that, in the good faith opinion of
the Hearing Party the Executive shall have been terminated for "Cause"
as herein defined and specifying the particulars thereof in detail.
Nothing herein will limit the right of the Executive or the Executive's
beneficiaries to contest the validity or propriety of any such
determination.
This Section 2(c) shall not preclude the payment of any amounts
otherwise payable to the Executive under any of the Company's employee benefit
plans, pension plans, stock plans, programs and arrangements.
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(d) A termination of the Executive's employment by the Company without
Cause or by the Executive for an event that would constitute Good Reason
following a Change in Control that occurs, in either event, prior to a Change in
Control, but occurs (i) not more than 180 days prior to the date on which a
Change in Control occurs and (ii) (x) at the request of a third party who has
indicated an intention or taken steps reasonably calculated to effect a Change
in Control or (y) otherwise arose in connection with, or in anticipation of, a
Change in Control, shall be deemed to be a termination or removal of the
Executive without Cause within the first 24 months after a Change in Control for
purposes of this Agreement and the date of such Change in Control shall be
deemed to be the date immediately preceding the date the Executive's employment
terminates.
1. Notice of Termination.
Any termination of the Executive's employment with the Company and its
subsidiaries as contemplated by Section 2 shall be communicated by written
"Notice of Termination" to the other party hereto. Any "Notice of Termination"
shall indicate the effective date of termination which shall not be less than 30
days or more than 60 days after the date the Notice of Termination is delivered
(the "Termination Date"), the specific provision in this Agreement relied upon,
and, except for a termination pursuant to Section 2(d), will set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
such termination including, if applicable, the failure by the Company, after
provision of written notice by the Executive, to effect a remedy pursuant to the
final clause of Section 2(b)(ii) or 2(b)(v).
2. Termination Benefits.
Subject to the conditions set forth in Section 2, the following
benefits shall be paid or provided to the Executive:
(a) Compensation.
The Company shall pay to the Executive two times the sum of (i) "Base
Pay", which shall be an amount equal to the greater of (A) the Executive's rate
of annual base salary (prior to any deferrals) at the Termination Date or (B)
the Executive's rate of annual base salary (prior to any deferrals) immediately
prior to the Change in Control, plus (ii) "Incentive Pay", which shall be an
amount equal to the greater of (X) the target annual bonus payable to the
Executive under the Company's incentive compensation plan or any other annual
bonus plan for the fiscal year of the Company in which the Change in Control
occurred or (Y) the highest annual bonus earned by the Executive under the
Company's incentive compensation plan or any other annual bonus plan (whether
paid currently or on a deferred basis) during the three fiscal years of the
Company immediately preceding the fiscal year of the Company in which the Change
in Control occurred. In addition, the Executive shall receive a pro rata portion
of the
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target bonus for the fiscal year in which the Executive's termination of
employment occurs.
(b) Welfare Benefits.
For a period of 24 months following the Termination Date (the
"Continuation Period"), the Company shall arrange to provide the Executive with
benefits (the "Employee Benefits"), including travel accident, major medical,
dental care and other welfare benefit programs, substantially similar to those
in effect immediately prior to the Change in Control, or, if greater, to those
that the Executive was receiving or entitled to receive immediately prior to the
Termination Date (or, if greater, immediately prior to the reduction,
termination, or denial described in Section 2(b)(ii)(D)). If and to the extent
that any benefit described in this Section 4(b) is not or cannot be paid or
provided under any policy, plan, program or arrangement of the Company or any
subsidiary, as the case may be, then the Company will itself pay or provide for
the payment to the Executive, the Executive's dependents and beneficiaries, of
such Employee Benefits along with, in the case of any benefit which is subject
to tax because it is not or cannot be paid or provided under any such policy,
plan, program or arrangement of the Company or any subsidiary, an additional
amount such that after payment by the Executive, or the Executive's dependents
or beneficiaries, as the case may be, of all taxes so imposed, the recipient
retains an amount equal to such taxes. Employee Benefits otherwise receivable by
the Executive pursuant to this Section 4(b) will be reduced to the extent
comparable welfare benefits are actually received by the Executive from another
employer during the Continuation Period, and any such benefits actually received
by the Executive shall be reported by the Executive to the Company. In addition,
the Executive shall receive additional age and service credit for the
Continuation Period for purposes of the Executive's eligibility to receive any
retiree medical benefits.
(c) Retirement Benefits.
The Executive shall be deemed to be completely vested in the
Executive's currently accrued benefits under the Company's Employees' Pension
Plan and the Company's Pension Restoration Plan or other supplemental pension
plan ("SERP") in effect as of the date of the Change in Control (collectively,
the "Plans"), regardless of the Executive's actual vesting service credit
thereunder. In addition, the Executive shall be deemed to earn age and service
credit for benefit calculation purposes thereunder for the Continuation Period.
The additional retirement benefits to be paid pursuant to the Plans shall be
calculated as though the Executive's compensation rate for the years during the
Continuation Period equaled the sum of Base Pay plus Incentive Pay. Any benefits
payable pursuant to this Section 4(c) that are not payable out of the Plans for
any reason (including but not limited to any applicable benefit limitations
under the Employee Retirement Income Security Act of 1974, as amended, or any
restrictions relating to the qualification of the Company's Employees' Pension
Plan under Section 401(a) of the Internal Revenue Code of 1986, as amended (the
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"Code")) shall be paid directly by the Company out of its general assets at the
time such benefits would be payable under the applicable Plan.
(d) Stock Based Compensation Plans.
(i) Any issued and outstanding stock options shall vest and
become exercisable on the Termination Date (to the extent they have not
already become vested and exercisable) and any other stock-based awards
under any compensation plan or program maintained by the Company
(including, without limitation, awards of restricted stock and book
value appreciation units) and the Executive's rights thereunder shall
vest on the Termination Date (to the extent they have not already
vested) and any performance criteria under any such compensation plan
or program shall be deemed met at target as of the Termination Date.
(ii) If and to the extent that any benefit or entitlement (or
portion thereof) described in paragraph (i) above is not able to be
implemented by the Company under the then applicable terms of any plan,
program or award agreement applicable to the Executive, the Company
shall pay to the Executive cash and/or other property (including,
without limitation, common stock of the Company or any successor
thereto) with a value, as determined by the Board, equal to the value
of any such option, award or other entitlement (or portion thereof)
that the Executive was not able to receive under paragraph (i) above,
and such payment shall be in full satisfaction of the option, award or
other entitlement (or portion thereof) to which such payment relates.
(e) Deferred Compensation.
The Company shall pay to the Executive all other amounts
accrued or earned by the Executive through the Termination Date and amounts
otherwise owing under the then existing plans and policies of the Company,
including but not limited to, all amounts of compensation previously deferred by
the Executive (together with any accrued interest or other earnings thereon) and
not yet paid by the Company.
(f) Outplacement Services.
If so requested by the Executive, outplacement services shall
be provided to the Executive by a professional outplacement firm or provider
selected by the Executive that is reasonably acceptable to the Company at a cost
to the Company not in excess of $30,000.
(g) The Company shall pay to the Executive the amounts due pursuant to
Sections 4(a) and 4(d)(ii), in a lump sum on the first business day of the month
following the Termination Date. The Company shall pay to the Executive the
amounts
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due pursuant to Section 4(e) in accordance with the terms and conditions of the
existing plans and policies of the Company.
1. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event that it shall be determined (as hereafter provided) that any payment
(other than the Gross-Up payments provided for in this Section 5) or benefit
provided by the Company or any of its subsidiaries to or for the benefit of the
Executive, whether paid or payable or provided pursuant to the terms of this
Agreement or otherwise pursuant to or by reason of any other agreement, policy,
plan, program or arrangement, including without limitation any stock option,
stock appreciation right or similar right, restricted stock, deferred stock or
the lapse or termination of any restriction on, deferral period for, or the
vesting or exercisability of any of the foregoing (a "Payment"), would be
subject to the excise tax imposed by Section 4999 of the Code (or any successor
provision thereto) by reason of being considered "contingent on a change in
ownership or control" of the Company, within the meaning of Section 280G of the
Code (or any successor provision thereto) or to any similar tax imposed by state
or local law, or any interest or penalties with respect to any such tax (such
tax or taxes, together with any such interest and penalties, being hereafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment or payments (collectively, a "Gross-Up
Payment"). The Gross-Up Payment shall be in an amount such that, after payment
by the Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including any Excise Tax and any income tax imposed upon
the Gross-Up Payment, the Executive retains an amount of Gross-Up Payment equal
to the Excise Tax imposed upon the Payment.
(b) Subject to the provisions of Section 5(f), all determinations
required to be made under this Section 5, including whether an Excise Tax is
payable by the Executive and the amount of such Excise Tax and whether a
Gross-Up Payment is required to be paid by the Company to the Executive and the
amount of such Gross-Up Payment, if any, shall be made by the Company's outside
auditors immediately prior to the Change in Control (the "Accounting Firm"). The
Executive shall direct the Accounting Firm to submit its determination and
detailed supporting calculations to both the Company and the Executive within 30
days after the Change in Control Date, the Termination Date, if applicable, and
any such other time or times as may be requested by the Company or the
Executive. If the Accounting Firm determines that any Excise Tax is payable by
the Executive, the Company shall pay the required Gross-Up Payment to the
Executive within five business days after receipt of such determination and
calculations with respect to any Payment to the Executive. If the Accounting
Firm determines that no Excise Tax is payable by the Executive, it shall, at the
same time as it makes such determination, furnish the Company and the Executive
an opinion that the Executive has substantial authority not to report any Excise
Tax on the Executive's federal, state or local income or other tax return. As a
result of the uncertainty in the application of Section 4999 of the Code (or any
successor provision
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thereto) and the possibility of similar uncertainty regarding applicable state
of local tax law at the time of any determination by the Accounting Firm
hereunder, it is possible that a Gross-Up Payment which will not have been made
by the Company should have been made (an "Underpayment'), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts or fails to pursue its remedies pursuant to Section 5(f) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Executive shall direct the Accounting Firm to determine the amount of the
Underpayment that has occurred and to submit its determination and detailed
supporting calculations to both the Company and the Executive as promptly as
possible. Any such Underpayment shall be promptly paid by the Company to, or for
the benefit of, the Executive within five business days after receipt of such
determination and calculations.
(c) The Company and the Executive shall each provide the Accounting
Firm access to and copies of any books, records and documents in the possession
of the Company or the Executive, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determinations and calculations
contemplated by Section 5(b). Any determination by the Accounting Firm as to the
amount of the Gross-Up Payment shall be binding upon the Company and the
Executive.
(d) The federal, state and local income or other tax returns filed by
the Executive shall be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
the Executive. The Executive shall make proper payment of the amount of any
Excise Tax, and at the request of the Company, provide to the Company true and
correct copies (with any amendments) of the Executive's federal income tax
return as filed with the Internal Revenue Service and corresponding state and
local tax returns, if relevant, as filed with the applicable taxing authority,
and such other documents reasonably requested by the Company, evidencing such
payment. If prior to the filing of the Executive's federal income tax return, or
corresponding state or local tax return, if relevant, the Accounting Firm
determines that the amount of the Gross-Up Payment should be reduced, the
Executive shall, within five business days, pay to the Company the amount of
such reduction.
(e) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by Section 5(b)
shall be borne by the Company. If such fees and expenses are initially paid by
the Executive, the Company shall reimburse the Executive the full amount of such
fees and expenses within five business days after receipt from the Executive of
a statement therefor and reasonable evidence of payment thereof.
(f) The Executive shall notify the Company in writing of any claim, by
the Internal Revenue Service or any other taxing authority that, if successful,
would require
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the payment by the Company of a Gross-Up Payment or any additional Gross-Up
Payment. Such notification shall be given as promptly as practicable but no
later than l0 business days after the Executive actually receives notice of such
claim, and the Executive shall further apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid (in each case, to
the extent known by the Executive). The Executive shall not pay such claim prior
to the earlier of (x) the expiration of the 30-day period following the date on
which the Executive gives such notice to the Company and (y) the date that any
payment with respect to such claim is due. If the Company notifies the Executive
in writing prior to the expiration of such period that it desires to contest
such claim, the Executive shall:
(i) provide the Company with any written records or documents in the
Executive's possession relating to such claim reasonably requested by
the Company;
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time,
including without limitation accepting legal representation with
respect to such claim by an attorney competent in respect of the
subject matter and reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order effectively to
contest such claim; and
(iv) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including interest and penalties) incurred in connection with such
contest and shall indemnify and hold harmless the Executive, on an after-tax
basis, for and against any Excise Tax or income tax including interest and
penalties with respect thereto, imposed as a result of such contest and payment
of costs and expenses. Without limiting the foregoing provisions of this Section
5(f), the Company shall control all proceedings taken in connection with the
contest of any claim contemplated by this Section 5(f) and, at its sole option,
may pursue or forego any and all administrative appeals, proceedings, hearings
and conferences with the taxing authority in respect of such claim (provided,
however, that the Executive may participate therein at the Executive's own cost
and expense) and may, at its option, either direct the Executive to pay the tax
claimed and xxx for a refund or contest the claim in any permissible manner, and
the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay the tax claimed and xxx for a refund, the
Company shall advance the amount of such payment to the Executive on an
interest-free basis and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income
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or other tax, including interest or penalties with respect thereto, imposed with
respect to such advance; and provided further, that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which the contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
any such contested claim shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive shall be entitled
to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(g) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 5(f), the Executive receives any refund with respect
to such claim, the Executive shall (subject to the Company's complying with the
requirements of Section 5(f)) promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after any taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 5(f), a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial or refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of any such advance shall offset, to the extent
thereof, the amount of any Gross-Up Payment required to be paid by the Company
to the Executive pursuant to this Section 5.
6. No Mitigation Obligation; Obligations Absolute. The payment of the
severance compensation by the Company to the Executive in accordance with the
terms of this Agreement is hereby acknowledged by the Company to be reasonable,
and the Executive will not be required to mitigate the amount of any payment or
other benefit provided in this Agreement by seeking other employment or
otherwise, nor will any profits, income, earnings or other benefits from any
source whatsoever create any mitigation, offset, reduction or any other
obligation on the part of the Executive hereunder or otherwise, except as
expressly provided in the second to last sentence of Section 4(b) and Section 13
hereof. The obligations of the Company to make the payments and provide the
benefits provided herein to the Executive are absolute and unconditional and may
not be reduced under any circumstances, including without limitation any
set-off, counterclaim, recoupment, defense or other right which the Company may
have against the Executive or any third party at any time.
7. Legal Fees and Expenses.
It is the intent of the Company that the Executive not be required to
incur legal fees and the related expenses associated with the interpretation,
enforcement or defense of the Executive's rights under this Agreement by
litigation or otherwise because the cost and expense thereof would substantially
detract from the benefits intended to be extended to the Executive hereunder.
Accordingly, if, following a Change in Control, it should appear to the
Executive that the Company has failed to comply with any of its
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obligations under this Agreement or in the event that the Company or any other
person takes or threatens to take any action to declare this Agreement void or
unenforceable, or institutes any litigation or other action or proceeding
designed to deny, or to recover from, the Executive any or all of the benefits
provided or intended to be provided to the Executive hereunder, the Company
irrevocably authorizes the Executive from time to time to retain counsel of the
Executive's choice, at the expense of the Company as hereafter provided, to
advise and represent the Executive in connection with any such interpretation,
enforcement or defense, including without limitation the initiation or defense
of any litigation or other legal action, whether by or against the Company or
any director, officer, stockholder or other person affiliated with the Company,
in any jurisdiction. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company irrevocably
consents to the Executive's entering into an attorney-client relationship with
such counsel, and in that connection the Company and the Executive agree that a
confidential relationship shall exist between the Executive and such counsel.
Without respect to whether the Executive prevails, in whole or in part, in
connection with any of the foregoing, the Company will pay and be solely
financially responsible for all reasonable attorneys' fees and related expenses
incurred by the Executive in good faith in connection with any of the foregoing;
provided, however, that the Company shall have no obligation hereunder to pay
any attorneys' fees or related expenses with respect to any frivolous claims
made by the Executive. Payments by the Company shall be made within 10 business
days after receipt of the Executive's written request for payment accompanied by
such evidence of fees and expenses as the Company may reasonably require.
8. Continuing Obligations.
The Executive hereby agrees that all documents, records, techniques,
business secrets and other information which have come into the Executive's
possession from time to time during the Executive's employment with the Company
shall be deemed to be confidential and proprietary to the Company and, except
for personal documents and records of the Executive, shall be returned to the
Company. The Executive further agrees to retain in confidence any confidential
information known to him concerning the Company and its subsidiaries and their
respective businesses so long as such information is not otherwise publicly
disclosed, except that Executive may disclose any such information required to
be disclosed in the normal course of the Executive's employment with the Company
or pursuant to any court order or other legal process or as necessary to enforce
the Executive's rights under this Agreement.
9. Successors.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance reasonably satisfactory to the Executive to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to
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perform it if no such succession had taken place. Failure of such successor
entity to enter into such agreement prior to the effective date of any such
succession (or, if later, within three business days after first receiving a
written request for such agreement) shall constitute a breach of this Agreement
and shall entitle the Executive to terminate employment pursuant to Section
2(a)(ii) and to receive the payments and benefits provided under Section 4. As
used in this Agreement, "Company" shall mean the Company as herein before
defined and any successor to its business and/or assets as aforesaid which
executes and delivers the Agreement provided for in this Section 9 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive dies
while any amounts are payable to him hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's designee or, if there is no such designee, to the
Executive's estate.
10. Notices.
For all purposes of this Agreement, all communications, including
without limitation notices, consents, requests or approvals, required or
permitted to be given hereunder will be in writing and will be deemed to have
been duly given when hand delivered or dispatched by electronic facsimile
transmission (with receipt thereof orally confirmed), or five business days
after having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid, or three business days after having been
sent by a nationally recognized overnight courier service such as FedEx, UPS, or
Purolator, addressed to the Company (to the attention of the Secretary of the
Company, with a copy to the General Counsel of the Company) at its principal
executive office and to the Executive at the Executive's principal residence, or
to such other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
11. Governing Law.
THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
12. Miscellaneous.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in a writing signed
by the Executive and the Company. No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement
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to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or any prior or subsequent time.
No agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement (or in any employment or other written
agreement relating to the Executive). Nothing expressed or implied in this
Agreement will create any right or duty on the part of the Company or the
Executive to have the Executive remain in the employment of the Company or any
subsidiary prior to or following any Change in Control. The Company may withhold
from any amounts payable under this Agreement all federal, state, city or other
taxes as the Company is required to withhold pursuant to any law or government
regulation or ruling. In the event that the Company refuses or otherwise fails
to make a payment when due and it is ultimately decided that the Executive is
entitled to such payment, such payment shall be increased to reflect an interest
factor, compounded annually, equal to the prime rate in effect as of the date
the payment was first due plus two points. For this purpose, the prime rate
shall be based on the rate identified by Chase Manhattan Bank as its prime rate.
Notwithstanding anything in this Agreement to the contrary, if any
right or entitlement of the Executive under this Agreement would cause a
transaction involving the Company to be ineligible for "pooling of interests"
accounting treatment and that transaction would, but for such right or
entitlement hereunder, be eligible for such accounting treatment (each as
determined by the Company's outside auditors), the Board may, unilaterally and
without notice, modify, adjust or terminate any such right or entitlement so
that the transaction will be eligible for "pooling of interests" accounting
treatment (as determined by the Company's outside auditors); provided, however,
that any such right or entitlement that is modified, adjusted or terminated
under this paragraph shall be fully reinstated (with retroactive payments, if
necessary) if the transaction which caused such modification, adjustment or
termination to be made is not consummated or if "pooling of interest" accounting
treatment is not applied to such transaction.
13. Reduction for Other Severance.
Any payments or other benefits provided to the Executive under this
Agreement shall be reduced by any payments or other benefits, under any
severance plan or employment agreement, which the Executive is eligible to
receive as a result of the termination of the Executive's employment.
14. Separability.
The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
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15. Non-assignability.
This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign or transfer this Agreement or
any rights or obligations hereunder, except as provided in Section 9. Without
limiting the foregoing, the Executive's right to receive payments hereunder
shall not be assignable or transferable, whether by pledge, creation of a
security interest or otherwise, other than a transfer by will or by the laws of
descent or distribution, and in the event of any attempted assignment or
transfer by the Executive contrary to this Section 15 the Company shall have no
liability to pay any amount so attempted to be assigned or transferred to any
person other than the Executive or, in the event of death, the Executive's
designated beneficiary or, in the absence of an effective beneficiary
designation, the Executive's estate.
16. Effectiveness; Term.
This Agreement will be effective and binding as of the date first above
written immediately upon its execution and shall continue in effect through the
second anniversary of such date; provided, however, that the term of this
Agreement shall automatically be extended for an additional day for each day
that passes so that there shall at any time be two years remaining in the term
unless the Company provides written notice to the Executive that it does not
wish the term of this Agreement to continue to be so extended, in which case the
Agreement shall terminate on the second anniversary of such notice if there has
not been a Change in Control prior to such second anniversary. In the event that
a Change in Control has occurred during the term of this Agreement, then this
Agreement shall continue to be effective until the second anniversary of such
Change in Control. Notwithstanding any other provision of this Agreement, if,
prior to a Change in Control, the Executive ceases for any reason to be an
employee of the Company and any subsidiary (other than a termination of
employment pursuant to Section 2(d) hereof), thereupon without further action
the term of this Agreement shall be deemed to have expired and this Agreement
will immediately terminate and be of no further effect. For purposes of this
Section 16, the Executive shall not be deemed to have ceased to be an employee
of the Company and any subsidiary by reason of the transfer of the Executive's
employment between the Company and any subsidiary, or among any subsidiaries.
Notwithstanding any provision of this Agreement to the contrary, the parties'
respective rights and obligations under Sections 4 through 9 will survive any
termination or expiration of this Agreement or the termination of the
Executive's employment following a Change in Control for any reason whatsoever.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same agreement.
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18. Prior Agreement. This Agreement supersedes and terminates any and
all prior similar agreements by and among Company (and/or a subsidiary) and the
Executive.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
AMERADA XXXX CORPORATION
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Chairman of the Board and
Chief Executive Officer
/s/ Xxxxxxx X. Gugen
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Signature
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