Exhibit 10.3
KERR-McGEE CORPORATION
BENEFITS RESTORATION PLAN
(Amended And Restated Effective May 1, 1999)
TABLE OF CONTENTS
Page
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ARTICLE I. Purpose.............................................................1
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ARTICLE II. Definitions........................................................1
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2.1 Affiliate........................................................1
2.2 Basic Defined Benefit Plan Benefit...............................1
2.3 Basic Defined Contribution Plan Contributions....................1
2.4 Beneficiary......................................................1
2.5 Board of Directors...............................................2
2.6 Change of Control................................................2
2.7 Code.............................................................3
2.8 Committee........................................................3
2.9 Company..........................................................3
2.10 Defined Benefit Plan.............................................3
2.11 Defined Contribution Plans.......................................3
2.12 ERISA............................................................3
2.13 Effective Date...................................................3
2.14 Eligible Employee................................................3
2.15 Limits of the Code...............................................3
2.16 Participant......................................................3
2.17 Plan.............................................................3
2.18 Plan Year........................................................3
2.19 Restored Defined Benefit Plan Benefit............................3
2.20 Restored Defined Contribution Plan Benefits......................3
2.21 Senior Executive Group...........................................3
2.22 Senior Executive Group Member....................................4
ARTICLE III. Eligibility and Participation.....................................4
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ARTICLE IV. Provisions for Benefits............................................4
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ARTICLE V. Amount of Benefits..................................................4
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5.1 Restored Defined Benefit Plan Benefits...........................4
5.2 Restored Defined Contribution Plan Benefits......................4
5.3 Restored Benefits................................................5
5.4 Payment to Beneficiary...........................................5
5.5 Merger of Oryx Energy Company Savings Restoration Plan...........5
5.6 Supplements to the Plan..........................................5
ARTICLE VI. Payment of Benefits................................................5
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6.1 Payment of Restored Defined Benefit Plan Benefit.................5
6.2 Payment of Restored Defined Contribution Plan Benefits...........6
ARTICLE VII. Administration....................................................6
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7.1 Administration by Committee......................................6
7.2 Rules of Conduct.................................................6
7.3 Legal, Accounting, Clerical and Other Services...................6
7.4 Records of Administration........................................6
7.5 Expenses.........................................................6
7.6 Indemnification..................................................6
7.7 Liability........................................................7
7.8 Claims Review Procedures.........................................7
7.9 Finality of Determinations; Exhaustion of Remedies...............8
7.10 Effect of Fiduciary Action.......................................8
7.11 Effect of Mistake................................................9
ARTICLE VIII. General Provisions...............................................9
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8.1 Plan Amendment, Suspension and/or Termination....................9
8.2 Plan Not an Employment Contract..................................9
8.3 Non-alienation of Benefits.......................................9
8.4 Provisions in the Event of a Change of Control..................10
8.5 Special Payment Situations......................................10
8.6 Termination of Employment.......................................11
8.7 Duty to Provide Data............................................11
8.8 Tax Consequences Not Guaranteed.................................12
8.9 Tax Withholding.................................................12
8.10 Incompetency....................................................12
8.11 Severability....................................................13
8.12 Governing Law...................................................13
KERR-McGEE CORPORATION
BENEFITS RESTORATION PLAN
ARTICLE I.
PURPOSE
The purpose of this Plan is to provide benefits which are not payable to an
Eligible Employee under the Defined Benefit Plan and Defined Contribution Plans
because of benefit limitations under the Code.
ARTICLE II.
DEFINITIONS
The masculine gender, where appearing in the Plan shall be deemed to
include the feminine gender, the single may include the plural, and visa versa,
unless the context clearly indicates to the contrary. Where capitalized words
and phrases appear in this Plan, they shall have the respective meanings set
forth below.
2.1 Affiliate means:
(a) Any corporation other than the Company (i.e., either a subsidiary
corporation or an affiliated or associated corporation of the Company),
which together with the Company is a member of a "controlled group" of
corporations;
(b) Any organization with which the Company is under "common control";
(c) Any organization which together with the Company is an "affiliated
service group";
(d) A limited liability company wholly owned by the Company; or
(e) Any foreign affiliate of the Company which is covered by an
agreement under Section 3121(l) of the Code;
as those terms are used in Code Sections 406(a), 414(b), 414(c), and
414(m), respectively.
2.2 Basic Defined Benefit Plan Benefit. The amount payable to the
Participant under the Defined Benefit Plan after reduction to comply with the
Limits of the Code.
2.3 Basic Defined Contribution Plan Contributions. The amount of Company or
Affiliate contributions allocated to the Participant's accounts during any year
under the Defined Contribution Plans after reduction to comply with the Limits
of the Code.
2.4 Beneficiary. The beneficiary of a deceased Participant's Restored
Defined Benefit Plan Benefit shall be the trust, person or persons on whose
behalf benefits may be payable under the Defined Benefit Plan after the
Participant's death. The beneficiary of a deceased Participant's Restored
Defined Contribution Plan Benefits shall be the trust, person or persons on
whose behalf benefits may be payable under the Defined Contribution Plan after
the Participant's death. Provided, if there is no Beneficiary, then any Restored
Defined Benefit Plan Benefit and/or Restored Defined Contribution Plan Benefits
shall be payable to the deceased Participant's estate.
2.5 Board of Directors. The duly elected and serving Board of Directors of
Kerr-McGee Corporation or any duly authorized committee of the Board of
Directors.
2.6 Change of Control. Change of Control shall mean any one of the
following:
(a) any person ("Person") as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and as
used in Section 13(d) and 14(d) thereof, including a "group" as defined in
Section 13(d) of the Exchange Act but excluding the Company and any
subsidiary and any employee benefit plan sponsored or maintained by the
Company or any subsidiary (including any trustee of such plan acting as
trustee), directly or indirectly, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), of securities of the Company
representing 25% or more of the combined voting power of the Company's then
outstanding securities (other than indirectly as a result of the Company's
redemption of its securities); or
(b) the consummation of any merger or other business combination of
the Company, sale of 50% or more of the Company's assets, liquidation or
dissolution of the Company or combination of the foregoing transactions
(the "Transactions") other than a Transaction immediately following which
the shareholders of the Company and any trustee or fiduciary of any Company
employee benefit plan immediately prior to the Transaction own at least 60%
of the voting power, directly or indirectly, of (A) the surviving
corporation in any such merger or other business combination; (B) the
purchaser of or successor to the Company's assets; (C) both the surviving
corporation and the purchaser in the event of any combination of
Transactions; or (D) the parent company owning 100% of such surviving
corporation, purchaser or both the surviving corporation and the purchaser,
as the case may be; or
(c) within any twenty-four month period, the persons who were
directors immediately before the beginning of such period (the "Incumbent
Directors") shall cease (for any reason other than death) to constitute at
least a majority of the Board of Directors or the board of directors of a
successor to the Company. For this purpose, any director who was not a
director at the beginning of such period shall be deemed to be an Incumbent
Director if such director was elected to the Board of Directors by, or on
the recommendation of or with the approval of, at least two-thirds of the
directors who then qualified as Incumbent Directors (so long as such
director was not nominated by a person who commenced or threatened to
commence an election contest or proxy solicitation by or on behalf of a
Person (other than the Board of Directors) or who has entered into an
agreement to effect a Change of Control or expressed an intention to cause
such a Change of Control); or
(d) a majority of the members of the Board of Directors in office
immediately prior to a proposed transaction determine by a written
resolution that such proposed transaction, if taken, will be deemed a
Change of Control and such proposed transaction is consummated.
2.7 Code. The Internal Revenue Code of 1986, as amended from time to time
and related IRS notices, rules and regulations.
2.8 Committee. The persons appointed to administer this Plan in accordance
with Article VII.
2.9 Company. Kerr-McGee Corporation, or any successor thereto.
2.10 Defined Benefit Plan. Kerr-McGee Corporation Retirement Plan or its
successor plan.
2.11 Defined Contribution Plans. Kerr-McGee Corporation Savings Investment
Plan and the Kerr-McGee Corporation Employee Stock Ownership Plan.
2.12 ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
2.13 Effective Date. May 1, 1999.
2.14 Eligible Employee. Any employee of the Company or an Affiliate whose
benefit under either the Defined Benefit Plan and/or the Defined Contribution
Plans is subject to the Limits of the Code.
2.15 Limits of the Code. The limitations imposed under the Code, which
shall include by example but not by limitation Sections 401(a)(17) and/or 415,
on the amount of benefits which may be earned under the Defined Benefit Plan
and/or Defined Contribution Plans.
2.16 Participant. An Eligible Employee of the Company or an Affiliate who
meets the requirements to participate in the Plan in accordance with the
provisions of Article III hereof.
2.17 Plan. Kerr-McGee Corporation Benefits Restoration Plan, as amended
from time to time.
2.18 Plan Year. The twelve (12) month period beginning on January 1st and
ending on December 31st.
2.19 Restored Defined Benefit Plan Benefit. A Participant's benefit, if
any, provided under Section 5.1 hereof attributable to the reduction in the
Participant's Defined Benefit Plan benefit in compliance with the Code.
2.20 Restored Defined Contribution Plan Benefits. A Participant's benefit
balance, if any, provided under Section 5.2 hereof attributable to reduction(s)
in Defined Contribution Plan contributions by the Company or its Affiliates in
compliance with the Code.
2.21 Senior Executive Group. Participants designated by the Chairman of the
Board of Directors prior to a Change of Control to be a member of the Senior
Executive Group.
2.22 Senior Executive Group Member. A participant in the Senior Executive
Group.
ARTICLE III.
ELIGIBILITY AND PARTICIPATION
Any Eligible Employee whose benefits under the Defined Benefit Plan and/or
Defined Contribution Plans are subject to the Limits of the Code shall
participate in this Plan.
In addition, any employee who, prior to a Change of Control, is (a) a
participant in (i) the Defined Benefit Plan or (ii) the Defined Contribution
Plans and (b) a Senior Executive Group Member, shall be deemed to have been
eligible to participate in this Plan on the day prior to such Change of Control,
whether or not benefits under the Defined Benefit Plan and/or Defined
Contribution Plan are limited by the Code.
ARTICLE IV.
PROVISIONS FOR BENEFITS
Benefits provided by this Plan shall constitute general obligations of the
Company and its Affiliates and shall at all times be subject to the claims of
the general creditors of the Company and its Affiliates if any such Affiliate is
also the employer of the Participant, in accordance with the terms hereof. No
amounts in respect of such benefits shall be set aside or held in trust and no
recipient of any benefit shall have any right to have the benefit paid out of
any particular assets of the Company and its Affiliates; provided, however, that
nothing herein shall be construed to prevent a transfer of funds to a grantor
trust for the purpose of paying benefits or any part thereof as directed by the
Committee under this Plan. The amount payable shall not be in addition to any
benefit payable under any supplement to this Plan.
ARTICLE V.
AMOUNT OF BENEFITS
5.1 Restored Defined Benefit Plan Benefits. If the amount payable to the
Participant from the Defined Benefit Plan is subject to the Limits of the Code,
and any subsequent modifications thereto, the amount by which such benefit is so
limited shall be provided for such Participant under this Plan. The amount
payable shall not be in addition to any benefit payable under any supplement to
this Plan. In calculating the amounts payable under this Plan, such calculation
shall be made under the terms of the Defined Benefit Plan without the Limits of
the Code. However, for purposes of this Plan, amounts deferred by the
Participant under the Kerr-McGee Corporation Executive Deferred Compensation
Plan (EDCP) that would have been included in "covered compensation" under the
Defined Benefit Plan had such amounts been paid to the Participant will be
includable in compensation in calculations to determine Restored Defined Benefit
Plan Benefits.
5.2 Restored Defined Contribution Plan Benefits. If, the amount of
contributions by the Company or its Affiliates allocated to the Participant's
accounts during any year under the Defined Contribution Plans are directly or
indirectly subject to the Limits of the Code, then an amount equal to the amount
by which such contributions are so limited shall be credited to such Participant
under this Plan. In determining the amounts payable under this Plan, such
calculation shall be made under the terms of the Defined Contribution Plans
without the Limits of the Code. However, for purposes of this Plan, amounts
deferred by the Participant under the EDCP that would have been included in
"covered compensation" under the Defined Contribution Plans had such amounts
been paid to the Participant will be includable in compensation in calculations
to determine Restored Deferred Contribution Plan Benefits. Restored Defined
Contribution Plan Benefits shall earn interest until the date payable under
Section 6.2 based upon the 1-Year Treasury Bill rates. The determination of the
applicable rate shall be updated on an annual basis as of January 1 of each
year.
5.3 Restored Benefits. Regardless whether a Participant's Basic Defined
Benefit Plan Benefit or Basic Defined Contribution Plan Contributions are
subject to Limits of the Code, such Participant shall still be entitled to
receive the excess of the Basic Defined Benefit Plan Benefit and Basic Defined
Contribution Plan Contributions as provided under Section 8.4 over the amounts,
if any, payable under the Defined Benefit Plan and Defined Contribution Plans,
respectively. Notwithstanding anything to the contrary, benefits payable under
this Section shall be deemed to constitute, as the case may be, either Restored
Defined Benefit Plan Benefits or Restored Defined Contribution Plan Benefits.
5.4 Payment to Beneficiary. In the event any benefit payable upon
Participant's death to a Beneficiary under the Defined Benefit Plan prior to
commencement of the Basic Defined Benefit Plan Benefit thereunder is subject to
the Limits of the Code, the amount by which such benefit is so limited shall be
payable to the Participant's Beneficiary pursuant to the terms and conditions of
Section 6.1 herein.
5.5 Merger of Oryx Energy Company Savings Restoration Plan. Effective as of
January 1, 2001, the Oryx Energy Company Savings Restoration Plan (the "Oryx
SRP") will be merged into this Plan. The Oryx SRP was applicable to certain
selected employees of Oryx Energy Company ("Oryx") which was merged into the
Company effective February 26, 1999. From and after January 1, 2001, the
accounts of the former employees of Oryx ("Prior Oryx SRP Accounts") who were
participants in the Oryx SRP ("Oryx Participants") will be maintained in this
Plan as part of the Oryx Participant's Restored Defined Contribution Plan
Benefits. Effective as of January 1, 2001, the Oryx Participants will be
eligible to participate in this Plan if the Oryx Participant satisfies the
Plan's requirements for eligibility. Distribution of the Prior Oryx SRP Accounts
will be made as provided in Section 6.2 of the Plan.
5.6 Supplements to the Plan. The Supplements which are attached hereto
shall be a part of this Plan for all purposes, and, unless specifically stated
to the contrary in the applicable Supplement, the terms of the Plan shall
control and provide the basis for administration of the Supplements.
ARTICLE VI.
PAYMENT OF BENEFITS
6.1 Payment of Restored Defined Benefit Plan Benefit. Payment of the
Restored Defined Benefit Plan Benefit shall be made all at one time (in the form
of a single lump-sum payment) as of the date of retirement. The lump-sum payment
shall be defined as the pre-federal and state income tax amount necessary to
purchase an annuity (from a company with a rating of AA+ or better by a
recognized rating agency selected by the Committee) for the Eligible Employee at
the time of retirement. Such annuity would provide the Eligible Employee a
monthly amount which is equivalent to the amount, after considering federal and
state income taxes, that the Eligible Employee is entitled to receive on a
monthly basis from the Plan. For example, if an Eligible Employee is entitled to
receive monthly Plan payments of $8,333 ($100,000 annually), the lump-sum
payment would be equal to the Eligible Employee's pre-federal and state income
tax cost of an annuity which would provide the Eligible Employee (after
deducting federal and state income taxes) $5,083 monthly (i.e., $8,333 less
federal and state income taxes of $3,250, assuming a 39 percent effective tax
rate).
Any actuarial adjustment to a Restored Defined Benefit Plan Benefit
hereunder shall be computed using the same actuarial assumptions used on the
corresponding Basic Defined Benefit Plan Benefit.
6.2 Payment of Restored Defined Contribution Plan Benefits. Payment of any
Participant's Restored Defined Contribution Plan Benefits under Section 5.2
hereof shall be made all at one time (in the form of a lump-sum payment) within
a reasonable time following the Participant's termination of employment.
ARTICLE VII.
ADMINISTRATION
7.1 Administration by Committee. The Kerr-McGee Corporation Benefits
Committee shall, unless otherwise determined by the Board of Directors,
administer this Plan. The Committee shall be the "plan administrator" with
respect to the Plan. The Company shall be the "named fiduciary" of the Plan.
7.2 Rules of Conduct. The Committee shall adopt such rules for the conduct
of its business and the administration of this Plan as it considers desirable,
provided they do not conflict with the provisions of this Plan.
7.3 Legal, Accounting, Clerical and Other Services. The Committee may
authorize one or more if its members or any agent to act on its behalf and may
contract for legal, accounting, clerical and other services to carry out this
Plan. The Company shall pay all expenses of the Committee.
7.4 Records of Administration. The Committee shall keep records reflecting
the administration of this Plan which shall be subject to audit by the Company.
7.5 Expenses. The expenses of administering the Plan shall be borne by the
Company.
7.6 Indemnification. The officers and directors of the Company, members of
the Committee, and any employees of the Company who administer the Plan
(including in-house counsel who interprets the Plan) shall be indemnified and
held harmless by the Company against and from any and all loss, cost, liability,
or expense that may be imposed upon or reasonably incurred by them in connection
with or resulting from any claim, action, suit, or proceeding to which they may
be a party or in which they may be involved by reason of any action taken or
failure to act under this Plan and against and from any and all amounts paid by
them in settlement with the Company's written approval or paid by them in
satisfaction of a judgment in any such action, suit, or proceeding. The
foregoing provision shall not be applicable to any person if the loss, cost,
liability, or expense is due to such person's fraud or willful misconduct.
7.7 Liability. No member of the Board of Directors or of the Committee
shall be liable for any act or action, whether of commission or omission, taken
by any other member, or by any officer, agent, or employee of the Company or of
any such body, nor, except in circumstances involving his bad faith, for
anything done or omitted to be done by himself.
7.8 Claims Review Procedures. The following claim procedures shall apply
until such time as a Change of Control has occurred. Thereafter, these
procedures shall apply only to the extent the claimant requests their
applications:
(a) Denial of Claim. If a claim for benefits is wholly or partially
denied, the claimant shall be given notice in writing of the denial within
a reasonable time after the receipt of the claim, but not later than 90
days after the receipt of the claim. However, if special circumstances
require an extension, written notice of the extension shall be furnished to
the claimant before the termination of the 90-day period. In no event shall
the extension exceed a period of 90 days after the expiration of the
initial 90-day period. The notice of the denial shall contain the following
information written in a manner that may be understood by a claimant:
(i) the specific reasons for the denial;
(ii) specific reference to pertinent Plan provisions on which the
denial is based;
(iii) a description of any additional material or information
necessary for the claimant to perfect his claim and an
explanation of why such material or information is necessary;
(iv) an explanation that a full and fair review by the Committee
of the denial may be requested by the claimant or his authorized
representative by filing a written request for a review with the
Committee within 60 days after the notice of the denial is
received; and
(v) if a request for review is filed, the claimant or his
authorized representative may review pertinent documents and
submit issues and comments in writing within the 60-day period
described in Section 7.8(a)(iv).
(b) Decisions After Review. The decision of the Committee with respect
to the review of the denial shall be made promptly, but not later than 60
days after the Committee receives the request for the review. However, if
special circumstances require an extension of time, a decision shall be
rendered not later than 120 days after the receipt of the request for
review. A written notice of the extension shall be furnished to the
claimant prior to the expiration of the initial 60-day period. The claimant
shall be given a copy of the decision, which shall state, in a manner
calculated to be understood by the claimant, the specific reasons for the
decision and specific reasons for the decision and specific references to
the pertinent Plan provisions on which the decision is based.
(c) Other Procedures. Notwithstanding the foregoing, the Committee
may, in its discretion, adopt different procedures for different claims
without being bound by past actions. Any procedures adopted, however, shall
be designed to afford a claimant a full and fair review of his claim and
shall comply with applicable regulations under ERISA.
7.9 Finality of Determinations; Exhaustion of Remedies. To the extent
permitted by law, decisions reached under the claims procedures set forth in
Section 7.8 shall be final and binding on all parties. No legal action for
benefits under the Plan shall be brought unless and until the claimant has
exhausted his remedies under Section 7.8. In any such legal action, the claimant
may only present evidence and theories which the claimant presented during the
claims procedure. Any claims which the claimant does not in good faith pursue
though the review stage of the procedure shall be treated as having been
irrevocably waived. Judicial review of a claimant's denied claim shall be
limited to a determination of whether the denial was an abuse of discretion
based on the evidence and theories the claimant presented during the claims
procedure. This Section shall have no application following a Change of Control
as to a claim which is first asserted or first denied after the Change of
Control and, as to such a claim, the de novo standard of judicial review shall
apply.
7.10 Effect of Fiduciary Action. The Plan shall be interpreted by the
Committee and all Plan fiduciaries in accordance with the terms of the Plan and
their intended meanings. However, the Committee and all Plan fiduciaries shall
have the discretion to make any findings of fact needed in the administration of
the Plan, and shall have the discretion to interpret or construe ambiguous,
unclear or implied (but omitted) terms in any fashion they deem to be
appropriate in their sole judgment. The validity of any such finding of fact,
interpretation, construction or decision shall not be given de novo review if
challenged in court, by arbitration or in any other forum, and shall be upheld
unless clearly arbitrary or capricious. To the extent the Committee or any Plan
fiduciary has been granted discretionary authority under the Plan, the
Committee's or Plan fiduciary's prior exercise of such authority shall not
obligate it to exercise its authority in a like fashion thereafter. If, due to
errors in drafting, any Plan provision does not accurately reflect its intended
meaning, as demonstrated by consistent interpretations or other evidence of
intent, or as determined by the Committee in it sole and exclusive judgment, the
provision shall be considered ambiguous and shall be interpreted by the
Committee and all Plan fiduciaries in a fashion consistent with its intent, as
determined by the Committee in its sole discretion. The Committee, without the
need for Board of Directors' approval, may amend the Plan retroactively to cure
any such ambiguity. This Section may not be invoked by any person to require the
Plan to be interpreted in a manner which is inconsistent with its interpretation
by the Committee or by any Plan fiduciaries. All actions taken and all
determinations made in good faith by the Committee or by Plan fiduciaries shall
be final and binding upon all persons claiming any interest in or under the
Plan. This Section shall not apply to fiduciary or Committee actions or
interpretations which take place or are made following a Change of Control.
7.11 Effect of Mistake. If, in the sole opinion of the Committee, a
material mistake or misstatement as to the eligibility of a Participant or the
amount of benefit payments made or to be made to or with respect to a
Participant occurs, the Committee shall, if possible, cause an adjustment to be
made so as to correct such mistake and provide the correct amount of payments
with respect to such Participant.
ARTICLE VIII.
GENERAL PROVISIONS
8.1 Plan Amendment, Suspension and/or Termination. The Board of Directors
may, by resolution, in its absolute discretion, from time to time, amend,
suspend or terminate in whole or in part, and if terminated, reinstate any of
all of the provisions of this Plan, except that no amendment suspension or
termination may apply so as to decrease the payment to any Participant (or
Beneficiary) of any benefit under this Plan accrued prior to the effective date
of such amendment, suspension or termination. Any such amendment, suspension or
terminations shall become effective on such date as shall be specified in such
resolution and, except as expressly limited in this Section 8.1, shall include
provisions and shall have such effect as the Board of Directors in its absolute
discretion, deems desirable. Notwithstanding the foregoing, on or after a Change
of Control, any amendment, suspension or termination of the Plan shall not apply
to any Participant or Beneficiary in any way in which the Participant or
Beneficiary reasonably considers to be personally detrimental if the Participant
objects to such application in writing within thirty days after notice of the
amendment unless the Participant or Beneficiary theretofore had consented, or
thereafter consents, to the amendment in writing.
8.2 Plan Not an Employment Contract. The Plan is strictly a voluntary
undertaking on the part of the Company and shall not constitute a contract
between the Company or its Affiliates and any Eligible Employee, or
consideration for, or an inducement or condition of, the employment of an
Eligible Employee. Nothing contained in the Plan shall give any Eligible
Employee the right to be retained in the service of the Company or its
Affiliates or to interfere with or restrict the right of the Company or its
Affiliates, which is hereby expressly reserved, to discharge or retire any
Eligible Employee at any time for any reason not prohibited by statute, without
the Company or its Affiliates being required to show cause for the termination.
Inclusion under the Plan will not give any Eligible Employee any right or claim
to any benefit hereunder except to the extend such right has specifically become
fixed under the terms of the Plan. The doctrine of substantial performance shall
have no application to Eligible Employees, Participants or Beneficiaries. Each
condition and provision, including numerical items, has been carefully
considered and constitutes the minimum limit on performance which will give rise
to the applicable right.
8.3 Non-alienation of Benefits. Except as provided in this Section and to
the extent permitted by law, benefits payable under this Plan shall not, without
Committee consent, be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, charge, garnishment, execution, or
levy of any kind, either voluntary or involuntary. An unauthorized attempt to
charge or otherwise dispose of any right to benefits payable shall be subject to
seizure by legal process resulting from any attempt by creditors of or claimants
against any Participant (or Beneficiary), or any person claiming under or
through the foregoing, to attach his interest under this Plan. The
anti-alienation restrictions of this Section shall not apply to "qualified
domestic relations order" described in Section 206(d) of ERISA. The Committee
shall establish procedures to determine whether domestic relations orders are
"qualified domestic relation orders" and to administer distributions under such
qualified domestic relation orders. Nothing in this Section shall preclude the
Company or its Affiliates from withholding from amounts payable to a Participant
or his Beneficiary under this Plan amount the Participant owes the Company or
its Affiliates. Following a Change of Control, the Company or its Affiliates
shall not be entitled to withhold amounts in the manner described in the
preceding sentence.
8.4 Provisions in the Event of a Change of Control. Notwithstanding
anything to the contrary, following a Change of Control, each Senior Executive
Group Member entitled prior to a Change of Control to participate in the Plan
shall upon termination of employment following a Change of Control have a
nonforfeitable right to benefits under the Plan. For purposes of computing such
benefits under Article V, each such Senior Executive Group Member shall be
credited with five additional years of service. For purposes of computing such
Senior Executive Group Member's age for determining when the payment of benefits
commences under Article VI of the Plan, each Senior Executive Group Member's age
shall be determined by adding additional years equal to the lesser of (i) five
years or (ii) the number of years necessary to bring such Senior Executive Group
Member to age 65.
8.5 Special Payment Situations.
(a) Missing Participant or Beneficiary. Payment of benefits to the
person entitled thereto may be sent by first class mail, address correction
requested, to the last knows address on file with the Committee. If, within
two months from the date of issuance of the payment, the payment letter
cannot be delivered to the person entitled thereto or the payment has not
been negotiated, the payment shall be treated as forfeited. However, if the
person to whom the benefit became payable subsequently appears and
identifies himself to the satisfaction of the Committee, the amount
forfeited (without earnings thereon) shall be distributed to the person
entitled thereto. The right of any person to restoration of a benefit which
was forfeited pursuant to this Section shall cease upon termination of the
Plan.
(b) Private Investigators. If the Committee retains a private
investigator or other person or service to assist in locating a missing
person, all costs incurred for such services shall be charged against the
benefit to which the missing person was believed to be entitled and the
benefit shall be reduced by the amount of the costs incurred, except as the
Committee may otherwise direct.
(c) Delayed Payment. Payments to Participants or Beneficiaries may be
postponed by the Committee until any anticipated taxes, expenses or amounts
to be paid under a qualified domestic relations order have been paid in
full or until it is determined that such charges will not be imposed. A
payment to a Participant or Beneficiary may also be delayed in the event
payment might defeat an adverse potential or asserted claim by some other
person to the payment. The cost incurred by the Company in dealing with any
such adverse claim shall be charged against the benefit to which the claim
relates, except as the Committee otherwise directs.
8.6 Termination of Employment.
(a) General Rule. A Participant's employment with the Company or its
Affiliates shall terminate upon the first to occur of his resignation from
or discharge by the Company or its Affiliates (except as provided in
subsection (c) with respect to business dispositions) or his death or
retirement. A Participant's employment shall not terminate on account of an
authorized leave of absence, disability leave, sick leave, vacation, on
account of a military leave described in subsection (b), or transfers
between the Company and its Affiliates. However, failure to return to work
upon expiration of any leave of absence, sick leave, disability leave, or
vacation shall be considered a resignation effective as of the expiration
of such leave of absence, sick leave, disability leave, or vacation.
(b) Military Leaves. Any Participant who leaves the Company or its
Affiliates directly to perform service in the Armed Forces of the United
States or in the United States Public Health Service under conditions
entitling the Participant to reemployment rights, as provided in the laws
of the United States, shall be on military leave. A Participant's military
leave shall expire if the Participant voluntarily resigns from the Company
or its Affiliates during the leave or if he fails to make application for
reemployment within the period specified by such law for the preservation
of reemployment rights. In such event, the individual's employment shall be
deemed to terminate by resignation on the date the military leave expired.
(c) Spinoffs. If a Participant ceases to be employed by the Company or
its Affiliates because of the disposition by the Company or its Affiliates
of its interest in a subsidiary, plant, facility or other business unit or
if an entity which employs a Participant ceases to be an Affiliate, such
Participant's employment shall be considered terminated for all Plan
purposes. This Section 8.6(c) shall not apply to the extent it is
overridden by any contrary or inconsistent provision in applicable sales
documents or any related documents, whether adopted before or after the
sale and any such contrary or inconsistent provision shall instead apply
and is hereby incorporated in the Plan by this reference.
8.7 Duty to Provide Data.
(a) Data Requests. Every person with an interest in the Plan or
claiming benefits under the Plan shall furnish the Committee on a timely
and accurate basis with such documents, evidence or information as it
considers necessary or desirable for the purpose of administering the Plan.
The Committee may postpone payment of benefits (without accrual of
interest) until such information and such documents have been furnished.
(b) Addresses. Every person claiming a benefit under this Plan shall
give written notice to the Committee of his post office address and each
change of post office address. Any communication, statement or notice
addressed to such a person at his latest post office address as filed with
the Committee will, on deposit in the United States mail with postage
prepaid, be as binding upon such person for all purposes of the Plan as if
it had been received, whether actually received or not. If a person fails
to give notice of his correct address, the Committee, the Company and its
Affiliates and Plan fiduciaries shall not be obliged to search for, or to
ascertain, his whereabouts.
(c) Failure to Comply. If benefits which are otherwise currently
payable cannot be paid to the person entitled to the benefits because the
individual has failed to comply with this Section or other Plan provisions
relating to claims for benefits, any unpaid past due amount shall be
forfeited on the individual's death or presumed death.
8.8 Tax Consequences Not Guaranteed. The Company does not warrant that this
Plan will have any particular tax consequences for Participants or Beneficiaries
and shall not be liable to them if tax consequences they anticipate do not
actually occur. The Company shall have no obligation to indemnify a Participant
or Beneficiary for lost tax benefits (or other damage or loss) in the event
benefits are cancelled as permitted under Section 8.1, accelerated, or because
of change in Plan design or funding; e.g., establishment of a "secular trust."
8.9 Tax Withholding. The Company or other payor may withhold from a benefit
payment under this Plan any Federal, state or local taxes required by law to be
withheld with respect to such payment and may withhold such sum as the payor may
reasonably estimate as necessary to cover any taxes for which the Company may be
liable and which may be assessed with regard to such payment.
8.10 Incompetency. Any person receiving or claiming benefits under the Plan
shall be conclusively presumed to be mentally competent until the date on which
the Committee receives a written notice, in an acceptable form and manner, that
such person is incompetent and a guardian or other person legally vested with
the care of his estate has been appointed. If the Committee finds that any
person to whom a benefit is payable under the Plan is unable to care for his
affairs because of any disability or infirmity and no legal guardian of such
person's estate has been appointed, any payment due may be paid to the spouse, a
child, a parent, a sibling, or to any person deemed by the Committee to have
incurred expense for such person otherwise to the spouse, a child, a parent, a
sibling, or to any person deemed by the Committee to have incurred expense for
such person otherwise entitled to payment. Any such payment so made shall be a
complete discharge of any liability therefore under the Plan. If a guardian of
the estate of any person receiving or claiming benefits under the Plan shall be
appointed by a court of competent jurisdiction, benefit payments shall be made
to such guardian, provided proper proof of appointment and continuing
qualification is furnished in the form and manner acceptable to the Committee.
Any such payment so made shall be a complete discharge of any liability
therefore under the Plan.
8.11 Severability. If any provision of the Plan is held invalid or illegal
for any reason, any illegality or invalidity shall not affect the remaining
provisions of the Plan, and the Plan shall be construed and enforced as if the
illegal or invalid provision had never been contained therein. The Company shall
have the privilege and opportunity to correct and remedy such questions of
illegality or invalidity by amendment.
8.12 Governing Law. This Plan is subject to ERISA, but is exempt from most
parts of ERISA since it is an unfunded deferred compensation plan maintained for
a select group of management or highly compensated employees. In no event shall
any references to ERISA in the Plan be construed to mean that the Plan is
subject to any particular provisions of ERISA. The Plan shall be governed and
construed in accordance with federal law and the laws of the State of Oklahoma,
except to the extent such laws are preempted by ERISA.
IN WITNESS WHEREOF, Kerr-McGee Corporation has caused this Plan (as amended
and restated) to be duly adopted and executed effective as of May 1, 1999.
ATTEST: KERR-McGEE CORPORATION
By:/s/ Don Hager By: /s/ John M. Rauh
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Don Hager John M. Rauh
Assistant Secretary Chairman of the Benefits Committee,
Vice President and Treasurer