Exhibit 10.1
HOWELL CORPORATION
SEVERANCE PROGRAM FOR EXECUTIVES
The Board of Directors of Howell Corporation, a Delaware
corporation (the "Company"), has authorized the Company to
explore the possibility of a merger or other form of business
combination ("Merger") with Anadarko Petroleum Corporation
("Parent"). In light of the distraction to the executives of the
Company that such exploration of the Merger may create, the Board
of Directors of the Company (the "Board") has determined that it
is in the best interests of the Company and its stockholders to
take action intended to ensure that the Company and its
subsidiaries will continue to receive the full, undistracted
attention and dedication of their executives, notwithstanding the
possibility of the occurrence of the Merger (the consummation of
the Merger hereinafter referred to as a "Change in Control").
Therefore, in order to diminish the extent to which the
possibility of the Change in Control would otherwise distract the
Company and its subsidiaries' executives from the efficient
discharge of their responsibilities to the Company and its
subsidiaries, by providing all of such executives with the
assurance of financial security for a period of time in the event
of a Change in Control, the Board hereby adopts the Program
described below effective as of September 28, 2002.
1. Employees Covered. The Howell Corporation Severance Program
for Executives (this "Program") shall only cover the executive
employees of the Company and its subsidiaries who are listed
along with the title of their positions on Exhibit "A" attached
hereto.
2. Condition to Benefits Being Payable. No benefits shall be
payable under this Program unless (i) there shall have been a
Change in Control, (ii) the executive listed on Exhibit A's
employment with the Company and its subsidiaries is involuntarily
terminated by the Company or its subsidiaries, other than For
Cause (as defined in Section 6) or is voluntarily terminated by
such executive for Good Reason (as defined in Section 5), upon
the occurrence of or within three (3) years after the date of the
Change in Control ("Termination of Employment") and (iii) the
executive listed on Exhibit A executes and delivers to the
Company and does not revoke a Waiver and Release Agreement
("Release"), substantially in the form of Exhibit "B" attached
hereto, as set forth in Section 7.
3. Benefits.
(a) Upon the occurrence of a Change in Control, an executive who
is covered under this Program as described in Section 1 and
who has a Termination of Employment (hereinafter referred to
as "Executive"):
(i) shall receive, and the Company shall pay the aggregate of
the following amounts to Executive in one lump sum
within thirty (30) days after the date of such
Termination of Employment (except as provided in
Section 7):
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(A) an amount equal to two and one-half (2.5) times the sum of
(z) Executive's annual base salary in effect at
the time of the Termination of Employment; and (y)
the greater of the last bonus paid or awarded by
the Company to Executive for a full twelve month
period or the annualized amount of the last bonus
paid or awarded by the Company to Executive if
such bonus was for less than a twelve month
period; and (x) the amount of the Executive's
annual car allowance, if any, for the calendar
year in which the Change in Control occurs.
(B) an amount equal to the value of any accrued but unused
vacation.
(ii) shall receive any computer owned by the Company but used by
the Executive immediately prior to his termination of
employment.
(iii) shall receive extended coverage, under the Company's medical
and dental plans for him and his qualifying dependents
(including his spouse) for a period of six (6) months
beginning on the date of termination of employment at
the cost paid by the Executive immediately prior to
termination of employment; provided, however, that if
the Executive becomes reemployed with another employer
and is eligible to receive medical/dental coverage
under another employer-provided plan, the
medical/dental benefits provided under this clause (ii)
shall be secondary to those provided under such
subsequent employer's plan. After such six (6) month
period, the Executive shall be entitled to continuation
coverage pursuant to Section 4980(f) of the Internal
Revenue Code of 1986, as amended ("Code") ("COBRA
Coverage") at the cost normally charged similarly
situated, active employees for such COBRA Coverage.
(b) Notwithstanding anything herein to the contrary and except
as provided in Section 3(d) below, an Executive who is
designated as a "temporary/transitional" employee by the
Parent on or before the Change in Control, shall be paid the
severance benefit calculated under Section 3(a) (and the
Executive shall not be entitled to any additional severance
benefit pursuant to Section 3(a)) above in one lump sum
within thirty (30) days after the earlier to occur of (i)
the date which is six (6) months after the date of the
Change in Control, provided that the Executive is a
"temporary/transitional" employee on such date or (ii) the
date such Executive's "temporary/transitional" employment
terminates in accordance with Section 2; provided, however,
that the criteria used to measure whether or not such
Executive has "Good Reason" under (i) through (viii) of
Section 5(a) during such six-month period shall be based on
the Executive's position as a "temporary/transitional"
employee which shall involve duties and responsibilities
associated with assisting management in the transition.
(c) Except as provided in Section 3(a)(iii), the amounts payable
under this Section 3 shall be payable whether or not the
Executive secures new employment, and shall not be reduced
or offset in any manner.
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(d) Notwithstanding anything herein to the contrary, if the
employment of an Executive who is designated as a
"temporary/transitional" employee is terminated on account
of such Executive's death or Disability, the Executive shall
receive and the Company shall pay the severance benefits
described in Section 3 within thirty (30) days after the
Executive's termination of employment on account of his
death or Disability, and the Executive shall be entitled to
the benefits described in Section 4, if applicable. A
termination of employment for "Disability" shall have
occurred if an Executive's employment is terminated because
physical or mental injury has prevented the Executive from
performing his or her duties (as they existed immediately
prior to the illness or injury) on a full-time basis for one
hundred eighty (180) business days.
4. Certain Additional Benefits.
(a) Anything in this Program to the contrary notwithstanding and
except as set forth below, in the event it shall be
determined that any benefit earned or any payment or
distribution by the Company or any of its subsidiaries, to
or for the benefit of Executive, whether earned or paid or
payable or distributed or distributable pursuant to the
terms of this Program or otherwise (any such payments or
distributions or earnings being individually referred to
herein as a "Payment," and any two or more of such payments
or distributions or earnings being referred to herein as
"Payments"), would be subject to the excise tax imposed by
Section 4999 of the Code (such excise tax, together with any
interest thereon, any penalties, additions to tax, or
additional amounts with respect to such excise tax, and any
interest in respect of such penalties, additions to tax or
additional amounts, being collectively referred herein to as
the "Excise Tax"), then Executive shall be entitled to
receive and the Company shall make an additional payment or
payments (individually referred to herein as a "Gross-Up
Payment," and any two or more of such additional payments
being referred to herein as "Gross-Up Payments") in an
amount such that after payment by Executive of all taxes (as
defined in Section 4(k)) imposed upon the Gross-Up Payment,
Executive retains an amount of such Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Section
4(a), if it shall be determined that the Executive is
entitled to the Gross-Up Payment, but that the Parachute
Value of all Payments does not exceed 110% of the Safe
Harbor Amount, then no Gross-Up Payment shall be made to the
Executive and the amounts payable under this Agreement shall
be reduced so that the Parachute Value of all Payments, in
the aggregate, equals the Safe Harbor Amount. The reduction
of the amounts payable hereunder, if applicable, shall be
made by first reducing the payments under Section
3(a)(i)(A), unless an alternative method of reduction is
elected by the Executive, and in any event shall be made in
such a manner as to maximize the Value of all Payments
actually made to the Executive. For purposes of reducing
the Payments to the Safe Harbor Amount, only amounts payable
under this Program (and no other Payments) shall be
reduced. If the reduction of the amount payable under this
Program would not result in a reduction of the Parachute
Value of all Payments to the Safe Harbor Amount, no amounts
payable under this Program shall be reduced pursuant to this
Section 4(a).
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(b) Subject to the provisions of Section 4(c) through (i), any
determination (individually, a "Determination") required to
be made under this Section 4(b), including whether a
Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall initially be made, at the Company's expense,
by nationally recognized tax accountants mutually acceptable
to the Company and Executive ("Tax Accountants"). Tax
Accountants shall provide detailed supporting legal
authorities, calculations, and documentation both to the
Company and Executive within 15 business days of the
termination of Executive's employment, if applicable, or
such other time or times as is reasonably requested by the
Company or Executive. If Tax Accountants make the initial
Determination that no Excise Tax is payable by Executive
with respect to a Payment or Payments, it shall furnish
Executive with an opinion reasonably acceptable to Executive
that no Excise Tax will be imposed with respect to any such
Payment or Payments. Executive shall have the right to
dispute any Determination (a "Dispute") within 15 business
days after delivery of Tax Accountants' opinion with respect
to such Determination. The Gross-Up Payment, if any, as
determined pursuant to such Determination shall, at the
Company's expense, be paid by the Company to Executive
within five business days of Executive's receipt of such
Determination. The existence of a Dispute shall not in any
way affect Executive's right to receive the Gross-Up Payment
in accordance with such Determination. If there is no
Dispute, such Determination shall be binding, final and
conclusive upon the Company and Executive, subject in all
respects, however, to the provisions of Section 4(c) through
(i) below. As a result of the uncertainty in the
application of Sections 4999 and 280G of the Code, it is
possible that Gross-Up Payments (or portions thereof) which
will not have been made by the Company should have been made
("Underpayment"). In the event the Company exhausts its
remedies pursuant to Section 4(f), and the Executive is
required to make a payment of any Excise Tax or any
additional Excise Tax, as the case may be, Tax Accountants
shall, at the Company's expense, determine the amount of the
Underpayment that has occurred and any such Underpayment
shall be promptly paid by the Company to Executive.
(c) The Company shall defend, hold harmless, and indemnify
Executive on a fully grossed-up after tax basis from and
against any and all claims, losses, liabilities,
obligations, damages, impositions, assessments, demands,
judgments, settlements, costs, and expenses (including
reasonable attorneys', accountants', and experts' fees and
expenses) with respect to any tax liability of Executive
resulting from any Final Determination (as defined in
Section 4(h)) that any Payment is subject to the Excise Tax.
(d) If a party hereto receives any written or oral communication
with respect to any question, adjustment, assessment or
pending or threatened audit, examination, investigation or
administrative, court or other proceeding which, if pursued
successfully, could result in or give rise to a claim by
Executive against the Company under this Section 4(d)
("Claim"), including, but not limited to, a claim for
indemnification of Executive by the Company under
Section 4(c), then such party shall promptly (within at
least ten (10) business days) notify the other party hereto
in writing of such Claim ("Tax Claim Notice").
(e) If a Claim is asserted against Executive ("Executive
Claim"), Executive shall take or cause to be taken such
action in connection with contesting such Executive Claim as
the Company shall reasonably request in writing from time to
time, including the retention of counsel and experts as are
reasonably designated by the Company (it being understood
and agreed by the parties hereto that the terms of any such
retention shall expressly provide that the Company shall be
solely responsible for the payment of any and all fees and
disbursements of such counsel and any experts) and the
execution of powers of attorney, provided that:
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(i) within thirty (30) calendar days after the Company receives
or delivers, as the case may be, the Tax Claim Notice
relating to such Executive Claim (or such earlier date
that any payment of the taxes claimed is due from
Executive, but in no event sooner than five (5)
calendar days after the Company receives or delivers
such Tax Claim Notice), the Company shall have notified
Executive in writing ("Election Notice") that the
Company does not dispute its obligations (including,
but not limited to, its indemnity obligations) under
this Program and that the Company elects to contest,
and to control the defense or prosecution of, such
Executive Claim at the Company's sole risk and sole
cost and expense; and
(ii) the Company shall have advanced to Executive on an
interest-free basis, the total amount of the tax
claimed in order for Executive, at the Company's
request, to pay or cause to be paid the tax claimed,
file a claim for refund of such tax and, subject to the
provisions of the last sentence of Section 4(g), sue
for a refund of such tax if such claim for refund is
disallowed by the appropriate taxing authority (it
being understood and agreed by the parties hereto that
the Company shall only be entitled to sue for a refund
and the Company shall not be entitled to initiate any
proceeding in, for example, United States Tax Court)
and shall indemnify and hold Executive harmless, on a
fully grossed-up after tax basis, from any tax imposed
with respect to such advance or with respect to any
imputed income with respect to such advance; and
(iii) the Company shall reimburse Executive for any and all costs
and expenses resulting from any such request by the
Company and shall indemnify and hold Executive
harmless, on fully grossed-up after-tax basis, from any
tax imposed as a result of such reimbursement.
(f) Subject to the provisions of Section 4(e) hereof, the
Company shall have the right to defend or prosecute, at the
sole cost, expense, and risk of the Company, such Executive
Claim by all appropriate proceedings, which proceedings
shall be defended or prosecuted diligently by the Company to
a Final Determination. Without limitation on the foregoing
provisions of Section 4(e) and this Section 4(f), the
Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and sue for a
refund or contest the claim in a 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 (i)
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the Company shall not, without Executive's prior written
consent, enter into any compromise or settlement of such
Executive Claim that would adversely affect Executive with
respect to issues not involving Excise Tax; (ii) any request
from the Company to Executive regarding any extension of the
statute of limitations relating to assessment, payment, or
collection of taxes for the taxable year of Executive with
respect to which the contested issues involved in, and
amount of, the Executive Claim relate is limited solely to
such contested issues and amount; and (iii) the Company's
control of any contest or proceeding shall be limited to
issues with respect to the Executive Claim and Executive
shall be entitled to settle or contest, in his sole and
absolute discretion, any other issue raised by the Internal
Revenue Service or any other taxing authority. So long as
the Company is defending or prosecuting such Executive
Claim, Executive shall provide or cause to be provided to
the Company any information reasonably requested by the
Company that relates to such Executive Claim, and shall
otherwise cooperate with the Company and its representatives
in good faith in order to contest effectively such Executive
Claim. The Company shall keep Executive informed of all
developments and events relating to any such Executive Claim
(including, without limitation, providing to Executive
copies of all written materials pertaining to any such
Executive Claim), and Executive or his authorized
representatives shall be entitled, at Executive's expense,
to participate in all conferences, meetings and proceedings
relating to any such Executive Claim.
(g) If, after actual receipt by Executive of an amount of a tax
claimed (pursuant to an Executive Claim) for the Executive's
behalf pursuant to Section 4(e)(ii) hereof, the extent of
the liability of the Company hereunder with respect to such
tax claimed has been established by a Final Determination,
Executive shall promptly pay or cause to be paid to the
Company any refund actually received by, or actually
credited to, Executive with respect to such tax (together
with any interest paid or credited thereon by the taxing
authority and any recovery of legal fees from such taxing
authority related thereto). If, after the receipt by
Executive of an amount on the Executive's behalf pursuant to
Section 4(e)(ii), a determination is made by the Internal
Revenue Service or other appropriate taxing authority that
Executive shall not be entitled to any refund with respect
to such tax claimed and the Company does not notify
Executive in writing of its intent to contest such denial of
refund prior to the expiration of thirty (30) days after
such determination, then the amount of such payment shall
offset to the extent thereof, the amount of any Gross-Up
Payments and other payments required to be paid hereunder.
(h) For purposes of this Program, the term "Final Determination"
shall mean (A) a decision, judgment, decree, or other order
by a court or other tribunal with appropriate jurisdiction,
which has become final and non-appealable; (B) a final and
binding settlement or compromise with an administrative
agency with appropriate jurisdiction, including, but not
limited to, a closing agreement under Section 7121 of the
Code; (C) any disallowance of a claim for refund or credit
in respect to an overpayment of tax unless a suit is filed
on a timely basis; or (D) any final disposition by reason of
the expiration of all applicable statutes of limitations.
(i) For purposes of this Program, the terms "tax" and "taxes"
mean any and all taxes of any kind whatsoever (including,
but not limited to, any and all Excise Taxes, income taxes,
and employment taxes), together with any interest thereon,
any penalties, additions to tax, or additional amounts with
respect to such taxes and any interest in respect of such
penalties, additions to tax, or additional amounts.
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(j) For purposes of this Program, the terms "affiliate" and
"affiliates" mean, when used with respect to any entity,
individual, or other person, any other entity, individual,
or other person which, directly or indirectly, through one
or more intermediaries controls, or is controlled by, or is
under common control with such entity, individual or
person. The term "control" and derivations thereof when
used in the immediately preceding sentence means the
ownership, directly or indirectly, of 50% or more of the
voting securities of an entity or other person or possessing
the power to direct or cause the direction of the management
and policies of such entity or other person, whether through
the ownership of voting securities, by contract or otherwise.
(k) Definitions. The following terms shall have the following
meanings for purposes of this Section 4.
(i) "Parachute Value" of a Payment shall mean the
present value as of the date of the change of control
for purposes of Section 280G of the Code of the portion
of such Payment that constitutes a "parachute payment"
under Section 280G(b)(2), as determined by the
Accounting Firm for purposes of determining whether and
to what extent the Excise Tax will apply to such
Payment.
(ii) A "Payment" shall mean any payment or
distribution in the nature of compensation (within the
meaning of Section 280G(b)(2) of the Code) to or for
the benefit of the Executive, whether paid or payable
pursuant to this Program or otherwise.
(iii)The "Safe Harbor Amount" means 2.99 times the
Executive's "base amount," within the meaning of
Section 280G(b)(3) of the Code.
(iv) "Value" of a Payment shall mean the economic
present value of a Payment as of the date of the change
of control for purposes of Section 280G of the Code, as
determined by the Accounting Firm using the discount
rate required by Section 280G(d)(4) of the Code.
5. Good Reason.
(a) As used in this Program, the term "Good Reason" means that
in connection with the Executive's voluntary termination of
employment upon the occurrence of or within three (3) years
after the date of the Change in Control, any one or more of
the following events has occurred (other than an inadvertent
act which is cured within ten (10) days of notice) without
the Employee's consent:
(i) a material diminution in the nature of the Executive's
position listed on Exhibit A, including, but not
limited to, his authorities, duties, responsibilities
or status (including offices, titles or reporting
requirements), from those in effect prior to a Change
in Control or those in effect for a similarly situated
public company; or
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(ii) the relocation of the Executive's place of employment to a
location in excess of twenty-five (25) miles from the
place of the Executive's employment prior to a Change
in Control which is listed on Exhibit A attached
hereto; or
(iii) any reduction by the Company of the Executive's base salary,
or a material reduction in the calculation of or
determination of his bonus or other incentive benefits,
from those in effect prior to a Change in Control; or
(iv) the failure by the Company or Parent to increase the
Executive's base salary in a manner consistent with
practices implemented by either the Company or Parent
subsequent to the Change in Control with respect to
similarly positioned employees; or
(v) the failure of the Company or Parent to maintain the
Executive's participation in employee benefit plans,
programs, arrangements, and policies implemented by
either the Company or Parent subsequent to the Change
in Control with respect to similarly positioned
employees; or
(vi) failure of the Company (A) to advance expenses to or for the
benefit of Executive pursuant to a request made by
Executive in conformity with the provisions of any
indemnity agreement between the Company and Executive
or (B) to indemnify Executive pursuant to the
provisions of any indemnity agreement between Company
and Executive or any charter or the bylaw provisions; or
(vii) Executive is required to travel on Company business after
the Change in Control, an amount, when compared to the
Executive's business travel prior to the Change in
Control, which is an increase of the greater of (A)
forty (40) business days or (B) thirty-five percent
(35%) of the number of business days traveled on
Company business during the twelve (12) month period
immediately preceding the Change in Control; or
(viii) the failure of the Company or Parent to continue to
provide Executive with office space, related
facilities, and support personnel (including, but not
limited to, administrative and secretarial assistance)
that are both commensurate with the Executive's
responsibilities to and position with the Company prior
to a Change in Control and not materially dissimilar to
the office space, related facilities, and support
personnel provided to other executive officers of the
Company; or
(ix) the failure of the Company to obtain from a successor
(including a successor to a material portion of the
business or assets of the Company) a satisfactory
assumption in writing of the Company's obligations
under this Program; or
(x) the Company notifies Executive of the Company's intention
not to observe or perform one or more of the
obligations of the Company under this Program; or
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(xi) the Company breaches any provision of this Program and such
breach is not cured within thirty (30) days after the
Company's receipt of notice thereof from Executive.
(b) If, as of or after the occurrence of a Change in Control, an
Executive accepts an employment position with the Company (a
"New Position") and does not terminate his employment with
the Company or its subsidiaries for Good Reason within
twenty-five (25) days of such acceptance (the "Final
Acceptance Date"), then for the period commencing on the
Final Acceptance Date and ending on date which is three (3)
years after the date of Change in Control, the criteria used
to measure whether or not such Executive has "Good Reason"
under clauses (i) through (viii) shall be determined based
on the New Position. Notwithstanding the foregoing, if the
Company and the Executive agree that the New Position is a
promotion, then the criteria used to measure whether or not
such Executive has "Good Reason" under clauses (i) through
(viii) shall be made based on the position the Executive
maintained immediately prior to the Change in Control.
6. For Cause. As used in this Program, the term "For Cause"
means (i) gross neglect by Executive of his duties as an
employee, officer or director of the Company, which continues for
more than thirty (30) days after Executive's receipt of written
notice from the Board to Executive specifically identifying the
gross negligence of Executive and directing Executive to
discontinue the same, (ii) the conviction of the Executive of a
crime constituting a felony, or (iii) the commission by Executive
of an act, other than an act taken in good faith within the
course and scope of Executive's employment, which is directly
detrimental to the Company and exposes the Company to material
liability.
7. Release. Each Executive may take at least forty-five (45)
days, after receipt of the Release, to consider and/or seek
consultation about the Release. Each Executive shall have seven
(7) days following the execution and delivery of the Release to
revoke his execution and delivery of the Release. No benefit
shall be paid pursuant to Section 3(a)(i) until after the
expiration of the seven (7) day period for revocation of the
Release.
8. Non-Exclusivity of Rights. Nothing in this Program shall
prevent or limit Executive's continuing or future participation
in any benefit, bonus, incentive or other plan, program,
arrangement or policy provided by the Company or any of its
subsidiaries (other than any severance, termination, reduction in
force, or change in control plan, program, policy, or agreement
provided by the Company or any of its affiliates and for which
Executive and/or Executive's family may qualify, nor shall
anything herein limit or otherwise affect such rights as
Executive and/or Executive's family may have under any agreements
with the Company or any of its subsidiaries. Amounts which are
vested benefits or which Executive and/or Executive's family is
otherwise entitled to receive under any plan, program,
arrangement, or policy of the Company or any of its subsidiaries
shall be payable in accordance with such plan, program,
arrangement or policy.
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9. Full Settlement. The Company's obligation to make the
payments provided for in this Program and otherwise to perform
its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action
which the Company may have against Executive or others. In no
event shall Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable
to Executive under any of the provisions of this Program.
10. Program Administration.
(a) This Program shall be administered by the Company or its
designee ("Administrator") as shall be designated from time
to time. The Administrator shall be the "administrator" of
this Program and a "named fiduciary" within the meaning of
such terms used in the Employee Retirement Income Security
Act of 1974 ("ERISA").
(b) The Administrator may authorize one or more of its members
or any agent to execute or deliver any instrument or make
any payment in their behalf, and may employ such clerical
personnel as they may require in carrying out the provisions
of this Program.
(c) The Administrator shall hold meetings upon such notice, at
such place or places, and at such time or times as it may
from time to time determine. A majority of the
Administrator may act by meeting (whether in person or by
telephone) or by writing executed without a meeting.
(d) The Administrator shall have the duty and authority to
interpret and construe this Program in regard to all
questions of eligibility, the status and rights of any
person under this Program, and the manner, time and amount
of payment of any benefits under this Program. The decision
of the Administrator upon all matters within the scope of
its authority shall be conclusive and binding on all
parties, subject, however, to the provisions of Section 11.
(e) Subject to the limitations of this Section 10, the
Administrator may adopt such rules and procedures as it
deems desirable for the administration of this Program and
the transaction of its business, provided that such rules
and procedures shall be consistent with the provisions of
ERISA.
(f) The Administrator shall be responsible for the preparation
and delivery of all reports, notices, plan summaries and
plan descriptions required to be filed with any governmental
office or to be given to any employee or beneficiary of any
employee covered by this Program.
(g) Upon request of the Administrator, the Company or any of its
subsidiaries shall furnish such information in its
possession as will aid the Administrator in the performance
of its duties hereunder.
(h) The Administrator shall discharge its duties with respect to
this Program (i) solely in the interest of persons eligible
to receive benefits under this Program, (ii) for the
exclusive purpose of providing benefits to persons eligible
to receive benefits under this Program and of defraying
reasonable expenses of administering this Program and (iii)
with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a
like capacity and familiar with such matters would use in
the conduct of an enterprise of a like character and with
like aims.
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11. Claims Procedure.
(a) If any person eligible to receive benefits under this
Program or any person claiming to be eligible to receive
benefits under this Program believes he is entitled to
benefits in an amount greater than those which he is
receiving or has received, he may file a claim with the
Administrator. Such a claim shall be in writing and state
the nature of the claim, the facts supporting the claim, the
amount claimed, and the address of the claimant.
(b) The Administrator shall review the claim and, within sixty
(60) days after receipt of the claim, give written notice by
registered or certified mail to the claimant of the decision
with respect to the claim. Such notice shall be written in
a manner calculated to be understood by the claimant and, if
the claim is wholly or partially denied, set forth the
specific reason(s) for the denial, specific references to
pertinent Program provisions on which the denial is based, a
description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is
necessary, and an explanation of the claim review procedure
under this Program.
(c) In the event of a benefit claim denial, whether partial or
otherwise, the Administrator and the person whose claim has
been denied shall jointly appoint a person who is not an
Administrator to serve as Claim Reviewer. The claimant
shall have sixty (60) days after the day on which such
written notice of denial is delivered to him or her by the
Administrator, in which to apply (in person or by authorized
representative) in writing to the Claim Reviewer for a full
and fair review of the denial of his or her claim. In
connection with such review, the claimant (or his or her
representative) shall be afforded a reasonable opportunity
to review pertinent documents, and may submit issues and
comments in writing to the Claim Reviewer within the same
sixty (60) day period. The Claim Reviewer shall arrange to
meet personally with the claimant and/or representative
within thirty (30) days after the Claim Reviewer's receipt
of such written request for review for the purpose of
hearing the claimant's contentions and receiving such
relevant evidence as the claimant may wish to offer.
(d) The Claim Reviewer shall issue his or her decision on review
within sixty (60) days after receipt of such written request
for review, unless in the sole discretion of the Claim
Reviewer special circumstances require an extension to not
later than one hundred twenty (120) days after receipt of
such request for review. The claimant shall be given
written notice of the resulting final decision. Such notice
shall set forth specific reasons for the decision and
specific references to pertinent Program provisions on which
the decision is based and shall be written in a manner
calculated to be understood by the claimant.
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12. Notice to Persons Eligible to Receive Benefits Under this
Program. All notices, reports and statements given, made,
delivered or transmitted to any person eligible to receive
benefits under this Program or to any person claiming eligibility
under this Program shall be deemed to have been duly given, made
or transmitted when mailed by first class mail with postage
prepaid and addressed to such person at his address as last known
to the Administrator. Any person may record any change of his
address from time to time by written notice filed with the
Administrator.
13. Records. The Administrator shall keep or cause to be kept
all books of account, records and other data as may be necessary
or advisable in its judgment for the administration of this
Program.
14. Employment of Professional Assistance. The Administrator is
empowered, on behalf of this Program, to engage accountants,
legal counsel and such other personnel as it deems necessary or
advisable to assist it in the performance of its duties under
this Program. The functions of any such persons engaged by the
Administrator shall be limited to the specific services and
duties for which they are engaged, and such persons shall have no
other duties, obligation or responsibilities under this Program.
Such persons shall exercise no discretionary authority or
discretionary control respecting the management of this Program.
All reasonable expenses thereof shall be borne by the Company.
15. Indemnification of Members of the Administrator. To the
fullest extent permitted by law, the Company hereby indemnifies
and agrees to hold harmless the Administrator against any
personal liability or expense incurred by him as a result of any
act or omission in his capacity as an Administrator, except for
his or her own gross negligence or willful misconduct.
16. Controlling Law. This Program shall be construed and
enforced according to the internal laws of the State of Delaware
to the extent not preempted by Federal law, which shall otherwise
control.
17. Amendments; Termination. The Company reserves the right to
amend, modify, suspend or terminate the Program at any time;
provided that no such amendment, modification, suspension or
termination after the occurrence of a Change in Control that has
the effect of reducing or diminishing the right of any Employee
shall be effective without the written consent of the Employee,
and no amendment or modification prior to the occurrence of a
Change in Control shall increase or augment the right of any
Employee (provided that any such amendment or modification may
occur after the termination of that certain Agreement and Plan of
Merger by and among Anadarko Petroleum Corporation, Belair Merger
Corp. and Howell Corporation dated September 29, 2002).
Notwithstanding the foregoing, this Program shall terminate on
the third anniversary of the Change in Control.
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18. Assignability. This Program shall inure to the benefit of
and be binding upon the Company and its successors and assigns.
The Company shall require any corporation, entity, individual or
other person who is the successor (whether direct or indirect by
purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all the business and/or assets of the
Company to expressly assume and agree to perform, by a written
agreement in form and in substance satisfactory to the Company,
all of the obligations of the Company under this Program. As
used in this Program, the term "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this
Program by operation of law, written agreement or otherwise.
19. Non-Assignability. It is a condition of this Program, and
all rights of each person eligible to receive benefits under this
Program shall be subject hereto, that no right or interest of any
such person in this Program shall be assignable or transferable
in whole or in part, except by operation of law, including, but
not by way of limitation, lawful execution, levy, garnishment,
attachment, pledge, bankruptcy, alimony, child support or
qualified domestic relations order.
20. Withholding. The Company may withhold from any amount
payable or benefit provided under this Program such Federal,
state, local, foreign and other taxes as are required to be
withheld pursuant to any applicable law or regulation.
21. Limitation of Rights. A person eligible to receive benefits
under this Program shall have the right only to the benefits
described in this Program on the terms and conditions herein
provided.
22. Gender and Plurals. Wherever used in this Program document,
words in the masculine gender shall include masculine or feminine
gender, and, unless the context otherwise requires, words in the
singular shall include the plural, and words in the plural shall
include the singular.
23. Plan Controls. In the event of any inconsistency between
this Program document and any other communication regarding this
Program, this Program document controls.
24. Plan Year. The plan year shall end on each December 31
hereafter until the Program is terminated.
25. Administration.
(a) Plan Name: Howell Corporation Severance Program
for Executives.
(b) Plan Sponsor: Howell Corporation.
(c) Employer I.D.: 741223027
(d) Type of Plan: Welfare Benefit Plan.
(e) Plan Year: As set forth in Section 23.
(f) Funding Medium: Program benefits are paid from
the general assets of the Company.
(g) Agent for Service of Legal Process:
Howell Corporation
1500 Howell Building
Houston, Texas 77002-6923
Attention: Human Resource Department
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26. Pension Benefit Guaranty Corporation. Benefits provided by
this Program are NOT insured by the Pension Benefit Guaranty
Corporation under Title IV of ERISA because the insurance
provisions under ERISA are not applicable to this Program.
27. ERISA Rights. Participants in this Program are entitled to
certain rights and protections under ERISA. In addition to
creating rights for Program participants, ERISA imposes duties
upon the people who are responsible for the operation of this
Program. The people who operate this Program, called
"fiduciaries" of this Program, have a duty to do so prudently and
in the interest of the Program participants and beneficiaries.
No one, including a participant's employer or union, or any other
person, may fire a participant or otherwise discriminate against
him or her in any way to prevent the participant from obtaining a
welfare benefit or exercising his or her rights under ERISA.
If a participant's claim for a welfare benefit is denied or
ignored, in whole or in part, the participant has a right to know
why this was done, to obtain copies of documents relating to the
decision without charge, and to appeal any denial, all within
certain time schedules.
Under ERISA, there are steps a participant can take to
enforce the above rights. If a participant has a claim for
benefits which is denied or ignored, in whole or in part, the
participant may file suit in a state or Federal court. If it
should happen that Program fiduciaries misuse the Program's
money, or if a participant is discriminated against for asserting
his or her rights, the participant may seek assistance from the
U.S. Department of Labor, or may file suit in a Federal court.
The court will decide who should pay court costs and legal fees.
If the participant is successful, the court may order the person
he or she has sued to pay these costs and fees. If the
participant loses, the court may order him or her to pay these
costs and fees, for example, if it finds the claim is frivolous.
If a participant has any questions about this Program,
he or she should contact the Program Administrator. If there are
any questions about this statement or about a participant's
rights under ERISA, or if a participant needs assistance in
obtaining documents from the Program Administrator, the
participant should contact the nearest office of the Pension and
Welfare Benefits Administration, U.S. Department of Labor, listed
in the telephone directory or the Division of Technical
Assistance and Inquiries, Pension and Welfare Benefits
Administration, U.S. Department of Labor, 200 Constitution Avenue
N.W., Washington, D.C. 20210. One may also obtain certain
publications about his or her rights and responsibilities under
ERISA by calling the publications hotline of the Pension and
Welfare Benefits Administration.
Adopted and approved by the Board on September 28, 2002.
HOWELL CORPORATION
Richard K. Hebert
President and Chief Executive
Officer
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Howell Corporation
Severance Program for Executives
Exhibit "A"
Location
of
Executive Name Position Place of Employment
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