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EXHIBIT 10(h)
SUPPLEMENTAL BENEFIT AGREEMENT
THIS AGREEMENT, made and entered into as of the 17th day of August,
1990, by and between XXXXXXXX ENERGY & DEVELOPMENT CORP.
("Company") and XXXXXX X. XXXXXXXX ("Xxxxxxxx"),
W I T N E S S E T H :
WHEREAS, Xxxxxxxx has been employed by the Company in a key
executive capacity for a long and valuable career of executive service to the
Company and is currently employed by the Company as President, Chief Executive
Officer, and Chairman of the Board of Directors of the Company ("Board"); and
WHEREAS, the services of Xxxxxxxx as an employee of the Company
have been, are currently and are expected to continue to be extremely valuable
to the operation and success of the Company; and
WHEREAS, the Company wishes to recognize and reward such valuable
services of Xxxxxxxx, to encourage his continued employment and involvement in
Company affairs and to retain his services as an employee of the Company; and
WHEREAS, the Company desires to promote Xxxxxxxx'x devotion to his
duties on behalf of the Company by ameliorating any uncertainty or concern as to
the financial security of his surviving spouse in the event of his death while
employed or during a period in which he may be totally and permanently disabled;
NOW, THEREFORE, the Company and Xxxxxxxx hereby agree as follows:
1. Compensation Continuation Payments.
(a) In consideration of Xxxxxxxx'x continued employment
with the Company and its affiliates, the Company agrees
that, if Xxxxxxxx dies while employed by the Company or
its affiliates, the Company shall pay to Xxxxxxxx'x
surviving spouse, if any, a supplemental surviving
spouse benefit in an annual amount equal to the greater
of (i) Xxxxxxxx'x annual rate of base salary from the
Company in effect at the time of his death or (ii)
$625,000. Such supplemental surviving spouse benefit
shall be payable monthly in an amount equal to 1/12th
of the annual amount, beginning with the first day of
the month following Xxxxxxxx'x death and ending with
the earlier to occur of (i) the date as of which
thirty-six such monthly payments have been made to such
surviving spouse or (ii) the death of such surviving
spouse. If Xxxxxxxx leaves no surviving spouse, no
such compensation continuation payments shall be made
under this Agreement.
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(b) If Xxxxxxxx'x employment with the Company and its
affiliates terminates by reason of his becoming totally
and permanently disabled while employed by the Company
or its affiliates and Xxxxxxxx subsequently dies while
he remains totally and permanently disabled, the
Company shall pay to Xxxxxxxx'x surviving spouse, if
any, a supplemental surviving spouse benefit in an
annual amount equal to the greater of (i) Xxxxxxxx'x
annual rate of base salary from the Company in effect
as of the date he became totally and permanently
disabled or (ii) $625,000. Such supplemental surviving
spouse benefit shall be payable monthly in an amount
equal to 1/12th of the annual amount, beginning with
the first day of the month following Xxxxxxxx'x death
and ending with the earlier to occur of (i) the date as
of which thirty-six such monthly payments have been
made to such surviving spouse or (ii) the death of such
surviving spouse. If Xxxxxxxx leaves no surviving
spouse, no such compensation continuation payments
shall be made under this Agreement. For purposes of
this Paragraph 1(b), total and permanent disability
shall mean any physical or mental impairment or
condition that totally and presumably permanently
prevents Xxxxxxxx from performing his normal duties for
the Company, as determined by the Board, upon receipt
of and in reliance on the medical opinion of one or
more competent individuals (selected by the Board) who
are qualified to give medical opinions. In any event,
however, a disability that is sufficient to entitle
Xxxxxxxx to benefits under the Company's Long Term
Disability Plan shall be deemed to constitute total and
permanent disability for purposes of this Paragraph
1(b).
2. Other Employment Termination.
(a) If the employment of Xxxxxxxx by the Company is terminated
for any reason other than his death or total and permanent
disability, this Agreement shall thereupon terminate, and
the Company shall have no further obligation hereunder.
(b) Nothing contained herein shall be construed to be a
contract of employment, nor confer upon Xxxxxxxx the right
to continued employment by the Company or its affiliates,
nor affect in any manner the right of Xxxxxxxx or the
Company to terminate Xxxxxxxx'x employment at any time for
any reason.
(c) Xxxxxxxx shall be considered to be in the employment of
the Company so long as he remains an employee of either
the Company or an affiliate of the Company. For
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purposes of this Agreement, the term "affiliates" shall
mean any entity controlling, controlled by or under common
control with the Company.
3. Nature of Agreement. Nothing contained in this
Agreement, and no action taken pursuant to its provisions by either
party hereto shall create, or be construed to create, a trust of
any kind.
The compensation continuation payments to Xxxxxxxx'x surviving
spouse shall be made from assets which shall continue, for all purposes, to be a
part of the general assets of the Company, and no person, other than the
Company, shall have, by virtue of the provisions of this Agreement, any interest
in such assets. All assets which may, in the sole discretion of the Company, be
set aside by the Company to provide amounts payable pursuant to this Agreement
shall remain subject to the claims of the creditors of the Company, present and
future. This Agreement shall constitute an unfunded, unsecured obligation of the
Company to make payments in accordance with this Agreement.
4. Effect on Other Company Benefits and Perquisites. This Agreement
is intended to provide benefits in addition to, and not in lieu of, other
company-sponsored benefits and perquisites, including, but not limited to, the
Company's group life and long-term disability plans and any other benefits to
which Xxxxxxxx or his spouse may be entitled pursuant to other Company benefit
plans or agreements.
5. Modification. This Agreement may not be modified,
altered, or amended in any way except by a written instrument
signed by the parties hereto or their respective successors or
assigns, and may not be otherwise terminated except as provided
herein.
6. Successors and Assigns. This Agreement shall be binding upon any
successor to the Company. Neither Xxxxxxxx nor his spouse shall have the power
to anticipate, dispose of, assign or pledge any right, title, interest or
benefit hereunder in any manner until the same shall have been actually
distributed free and clear of the terms of this Agreement. No right, title,
interest or benefit hereunder shall be charged with any of the torts or
obligations of Xxxxxxxx or his spouse or be subject to seizure by any creditor
of Xxxxxxxx or his spouse.
7. Administration. The Compensation Committee of the
Board shall have full power and authority to interpret, construe
and administer this Agreement.
8. Governing Law. The provisions of this Agreement shall
be governed by and construed in accordance with the laws of the
State of Texas.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, effective as of the day and year first above written.
XXXXXXXX ENERGY & DEVELOPMENT CORP.
By /s/ Xxxxxxx X. Xxxxx
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Vice Chairman
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
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