Exhibit
10.1
UNIT
CORPORATION
ANNUAL
BONUS PERFORMANCE PLAN
(Effective
October 21, 2008)
The
purpose of this Annual Bonus Performance Plan (this “Plan”) is to enhance the
ability of Unit Corporation (the “Company”) and its Operating Segments to
attract, motivate, reward and retain key Employees, to strengthen their
commitment to the success of the Company and to align their interests with those
of the Company’s shareholders by providing compensation to these designated key
Employees based on the achievement of Performance Objectives. To this end, the
Plan provides a means of rewarding Participants based on the performance of the
Company, its Operating Segments, and the individual.
This Plan
shall be administered by the Compensation Committee of the Board or such other
committee appointed by the Board from time to time to administer the Plan and to
perform the functions set forth in this Plan ("Committee"). The Committee shall
have full authority to establish the rules and regulations relating to this
Plan, and
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to
interpret this Plan and those rules and
regulations,
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to
determine the Performance
Objectives,
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to
establish the available bonus pool,
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to
decide the facts in any case arising under this
Plan,
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to
determine the Participants in this Plan, the Award opportunities for the
Participants and whether the Award opportunities shall be based on the
Performance Objectives of the Company, the Performance Objectives of one
or more Operating Segments, the Performance Objectives of the individual
or a combination thereof, and
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to
make all other determinations and to take all other actions necessary or
appropriate for the proper administration of this Plan, including the
delegation of that authority or power, where
appropriate.
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The
Committee’s administration of this Plan, including all rules and regulations,
interpretations, selections, determinations, approvals, decisions, delegations,
amendments, terminations and other actions, shall be final and binding on all
persons, including the Company, its stockholders and the Participants and their
beneficiaries.
Participation
shall be limited to those Employees selected by the Committee to participate in
the Plan for each Performance Period.
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IV.
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Establishment
of Awards.
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Before
(or as soon thereafter as reasonably possible) the commencement of each
Performance Period, the Committee shall establish for that Performance Period
the Performance Objectives of the Company and/or Operating Segments, the
Participants and the total bonus pool. The total bonus pool available
for the Performance Period shall be increased by the target bonus attributable
to individual Performance Objectives for any Participant who is provided an
Award after that pool has been established. The Committee shall
determine (i) the Employees who shall be Participants during each
Performance Period, (ii) whether Awards for each Participant shall be based
on the achievement of Performance Objectives of the Company, the Performance
Objective of one or more Operating Segments, the Performance Objectives of the
individual or on a combination of the achievement of these Performance
Objectives, and (iii) the Award opportunities for each
Participant, including the extent to which
Awards
will be payable for actual performance between each level of the Performance
Objectives. In no event may the aggregate target Awards based on
individual Performance Objectives or the aggregate bonuses actually payable
based on such individual Performance Objectives exceed the total bonus pool
available for a Performance Period. The Company shall notify each
Participant of the applicable Performance Objectives for that Participant and
his or her corresponding Award opportunities for each Performance
Period.
Awards
under this Plan shall be payable as follows:
i.
Except to
the extent otherwise determined by the Committee, any Award shall be paid to a
Participant under this Plan only in accordance with the terms of this Plan and
only on the attainment of the Performance Objectives established, adjusted and
applied by the Committee for that Participant as provided in this Plan. The
Committee shall be the sole and exclusive arbiter of the extent, if any, to
which the Performance Objectives have been attained, and the amount of the
Award, if any, that is payable to each Participant.
ii.
Before
March 15 of the calendar year following the calendar year in which the
Performance Period ends, the Committee shall determined the amount of the Award,
if any, payable to each Participant. After the Committee has
determined the amount of the annual Award that may be payable to each
Participant, the Award shall be paid to each Participant no later than March
15th of the calendar year following the calendar year in which the Performance
Period ends provided that the Participant is employed with the Company or one of
its Operating Segments on the date that the Award is
paid. Notwithstanding the foregoing, the payment of an Award may be
deferred under the terms of the Unit Corporation Executive Nonqualified Excess
Plan.
iii.
Awards
shall be paid in cash.
iv.
This Plan
is intended not to be subject to Section 409A of the Code, together with any
related regulations and guidance promulgated thereunder (“Section 409A”), and
will be interpreted in a manner consistent with that. Despite
anything else in this Plan to the contrary, if at the time of a Participant’s
termination of employment the Participant is a “specified employee” within the
meaning of Section 409A (as determined in accordance with the methodology
established by the Company as in effect on the date of termination) (a
“Specified Employee”), and the amounts payable under this Plan are determined to
be subject to Section 409A, then the Company shall defer making paying of such
payments or benefits under this Plan (without any reduction in such payments or
benefits ultimately paid or provided to the Participant) until the date that is
the first business day after the date that is six months following the
Participant’s “separation from service” within the meaning of Section 409A of
the Code (the “Delayed Payment Date”);
provided, however,
that if
the Participant dies following the date of termination but before the Delayed
Payment Date, such amounts shall be paid to the personal representative of the
Participant’s estate within 30 days following the Participant’s
death.
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VI.
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Termination
of Employment.
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Except as
otherwise provided in Section X, an Award for a Performance Period shall be
payable to any Participant only if he or she is employed by the Company or one
of its Operating Segments on the payment date for Awards payable in respect of
that Performance Period, unless the Participant’s employment was terminated
before the payment date because of his or her (i) death,
(ii) Disability or (iii) retirement after attaining age 63, in which
event the Participant will be entitled to a pro-rata portion (which shall be
calculated based on the ratio of the number of calendar days worked in the
Performance Period to the total number of calendar days in the Performance
Period) of the Award otherwise payable in respect of that Performance
Period.
The
Committee may, at the time Performance Objectives are determined for a
Performance Period, or at any time before the final determination of Awards in
respect of that Performance Period, provide for the manner in which performance
will be measured against the Performance Objectives or may adjust the
Performance Objectives to reflect the impact of specified corporate transactions
(such as a stock split or stock dividend), special charges, accounting or tax
law changes and other extraordinary or nonrecurring events.
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VIII.
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Designation
of Beneficiary.
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IX.
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Amendment
or Termination.
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The Board
may modify, amend or terminate this Plan at any time in its sole discretion and
from time to time and subject to the rights under any other agreement the
Employee may have with the Company,
no Employee has any
right to payment under the terms of this Plan until an Award is
actually paid to the Employee;
provided
,
however
, that this
Plan may not be amended or terminated through and including the calendar year in
which a Company Change in Control occurs (i) at the request of a third
party who has indicated an intention or taken steps reasonably calculated to
effect a Company Change in Control or (ii) otherwise in connection with, or
in anticipation of, a Company Change in Control which has been threatened or
proposed, in either case provided a Company Change in Control shall actually
have occurred.
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X.
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Company
Change in Control.
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Despite
any provision in this Plan to the contrary, on the occurrence of a Company
Change in Control, the following provisions shall apply:
i.
The
minimum Award payable to each Participant in respect of the Performance Period
in which the Company Change in Control occurs shall be the greatest
of:
(A) the
Award or other annual bonus paid or payable to the Participant in respect of the
Performance Period before the year in which the Company Change in Control
occurs;
(B) the
Award amount that would be payable to the Participant assuming that the Company
achieved the target level of the Performance Objectives for the Performance
Period; and
(C) the
Award amount that would be payable to the Participant based on the Company’s
actual performance and achievement of applicable Performance Objectives for the
Performance Period through the date of the Change in Control
.
ii.
Despite
anything to the contrary contained in this Plan, in the event that following the
date of a Company Change in Control and before the payment date for Awards
payable in respect of the Performance Period in which the Company Change in
Control occurs a Participant’s employment is terminated by the Company and/or
its Operating Segments without Cause or by the Participant for Good Reason, that
Participant shall be entitled to receive, within 30 days following the date of
termination, the Award otherwise payable under the terms of this Plan in respect
of that Performance Period as if he or she had remained in the employ of the
Company (or the Operating Segment, as applicable) through the payment date for
Awards payable in respect of the Performance Period; provided that, if the
Participant is entitled to an Award with respect to the Performance Period under
a Key Employee Change of Control
Contract
with the Company, then that Participant shall receive, within 30 days following
the Participant’s “separation from service” within the meaning of Section 409A
of the Code, the greater of (A) the amount determined in accordance with this
Section X.ii and (B) the amount determined under Section 6(a)(i)(A)(5) of such
Key Employee Change of Control Contract (or such other provision of such
contract that provides for the payment of a pro-rata portion of the “Highest
Annual Bonus” (as defined in the Key Employee Change of Control
Contract)). Notwithstanding the foregoing , in the event that
the Participant is a Specified Employee and the Company determines that the
Award is subject to Section 409A of the Code, the Award shall instead be paid on
the Delayed Payment Date;
provided, however,
that if
the Participant dies following the date of termination but before the Delayed
Payment Date, such amounts shall be paid to the personal representative of the
Participant’s estate within 30 days following the Participant’s
death.
iii.
If a
Participant’s employment is terminated by the Company and/or its Operating
Segments without Cause before the date of a Company Change in Control but the
Participant reasonably demonstrates that the termination (A) was at the
request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Company Change in Control or
(B) otherwise arose in connection with, or in anticipation of, a Company
Change in Control which has been threatened or proposed, the termination shall
be deemed to have occurred after a Company Change in Control for purposes of
this Agreement.
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XI.
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Miscellaneous
Provisions.
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i.
Neither
the establishment of this Plan, nor any action taken under this Plan, shall be
construed as giving any Employee or any Participant any right to be retained in
the employ of the Company or any of its Operating Segments.
ii.
A
Participant’s rights and interests under this Plan may not be assigned or
transferred, except as provided in Section IX, and any attempted assignment or
transfer shall be null and void and shall extinguish, in the Committee’s sole
discretion, the Company’s obligation under this Plan to pay Awards with respect
to that Participant.
iii.
This Plan
shall be unfunded. The Company shall not be required to establish any special or
separate fund, or to make any other segregation of assets, to assure payment of
Awards. No Participant or any other person shall have any right to or
interest in any fund or specific asset or assets of the Company by virtue of
this Plan or by reason of any Award that has been made to him or her, but has
not yet been paid.
iv.
The
Company shall have the right to deduct from Awards paid any taxes or other
amounts required by law to be withheld.
v.
Nothing
contained in this Plan shall limit or affect in any manner or degree the normal
and usual powers of management, exercised by the officers and the Board or
committees thereof, to change the duties or the character of employment of any
Employee of the Company or any of its Operating Segments or to remove the
individual from the employment of the Company or any of its Operating Segments
at any time, all of which rights and powers are expressly reserved.
vi.
To the
extent not preempted by federal law, this Plan shall be determined in accordance
with the laws of the State of Delaware.
vii.
No member
of the Committee or of the Board and no Employee or representative of the
Company or any of its Operating Segments shall be liable for any action or
determination made in good faith by the Committee or the Board or by any such
Employee or representative with respect to this Plan or any Award. No Employee
or representative of the Company and no member of the Board or of the Committee
shall be subject to any liability with respect to duties under this Plan, unless
such person acts fraudulently or in bad faith. To the maximum extent permitted
by law, the Company shall indemnify each member of the Board, each member of the
Committee, and any Employee or representative of the Company or any of its
Operating
Segments who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed proceeding, whether civil, criminal,
administrative or investigative, brought with respect to this Plan or with
respect to that person’s conduct (actual or alleged) in connection with this
Plan.
viii.
This Plan
document, together with any Awards established by the Committee under this Plan,
contain all of the terms and provisions of and all conditions applicable to this
Plan, and supersedes any previous discussions, communications, understandings or
agreements, written or oral, between the Company and any Participant with
respect to this Plan as well as all prior actions that may have been taken by
the Board of Directors or the Committee relating to this Plan.
i.
“
Award
” shall mean the
cash incentive award earned by a Participant under this Plan for any Performance
Period.
ii.
“
Base Salary
” shall
mean the Participant’s annual base salary actually paid by the Company and/or
any of its Operating Segments and received by the Participant during the
applicable Performance Period. Annual base salary does not include
(a) Awards under this Plan, (b) long-term incentive awards,
(c) signing bonuses or any similar bonuses, (d) imputed income from
such programs as executive life insurance, or (e) nonrecurring earnings
such as moving expenses, and is based on salary earnings before reductions for
such items as contributions under Sections 125 or 401(k) of the Code or under
any nonqualified deferred compensation plan or agreement.
iii.
“
Board
” shall mean the
Board of Directors of the Company.
iv.
“
Cause
”
shall mean:
(A) the
willful and continued failure of the Participant to perform substantially the
Participant’s duties as then in effect (other than any such failure resulting
from incapacity due to physical or mental illness or following the Participant’s
delivery of a Notice of Termination for Good Reason), after a written demand for
substantial performance is delivered to the Participant by the Board or the
Chief Executive Officer of the Company which specifically identifies the manner
in which the Board or the Chief Executive Officer of the Company believes that
the Participant has not substantially performed the Participant’s duties,
or
(B) the
willful engaging by the Participant in illegal conduct or gross misconduct that
is materially and demonstrably injurious to the Company.
For
purposes of this Section XII.iv, no act or failure to act, on the part of the
Participant, shall be considered “willful”
unless it is done, or
omitted to be done, by the Participant in bad faith or without reasonable belief
that the Participant’s action or omission was in the best interests of the
Company. Any act, or failure to act, based on (A) authority given
under a resolution duly adopted by the Board, or if the Company is not the
ultimate parent corporation of the affiliated companies and is not
publicly-traded, the board of directors of the ultimate parent of the Company
(the “Applicable Board”) or (B) the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Participant in
good faith and in the best interests of the Company. The cessation of
employment of the Participant shall not be deemed to be for Cause unless and
until there shall have been delivered to the Participant a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Applicable Board (excluding the Participant, if the
Participant is a member of the Applicable Board) at a meeting of the Board
called and held for such purpose (after reasonable notice is provided to the
Participant and the Participant is given an opportunity, together with counsel
for the Participant, to be heard before the Applicable Board), finding that, in
the good faith opinion of the Applicable Board, the Participant is guilty of the
conduct described in clauses (A) or (B) of this Section XII.iv, and specifying
the particulars thereof in detail.
v.
“
Company Change in
Control
” shall be deemed to have occurred as of the first day that any
one or more of the following conditions shall have been satisfied:
(A) Any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a
“Person”) becomes the beneficial owner (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 15% or more of either (x) the then
outstanding shares of common stock of the Company (the “Outstanding Company
Common Stock”) or (y) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”); provided, however, that
for purposes of this subsection (A), the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
company controlled by, controlling or under common control with the Company
(each, an “Affiliated Company”) or (iv) any acquisition pursuant to a
transaction which complies with clauses (i), (ii) and (iii) of subsection (C) of
this definition;
provided
, that if the Board
of Directors of the Company determines in good faith that a Person became the
beneficial owner of 15% or more of the Outstanding Company Common Stock
inadvertently (including, without limitation, because (x) such Person was
unaware that it beneficially owned a percentage of Outstanding Company Common
Stock that would cause a Change of Control or (y) such Person was aware of the
extent of its beneficial ownership of Outstanding Company Common Stock but had
no actual knowledge of the consequences of such beneficial ownership under this
Plan) and without any intention of changing or influencing control of the
Company, then the beneficial ownership of Outstanding Company Common Stock by
that Person shall not be deemed to be or to have become a Change of Control for
any purposes of this Plan unless and until such Person shall have failed to
divest itself, as soon as practicable (as determined, in good faith, by the
Board of Directors of the Company), of beneficial ownership of a sufficient
number of Outstanding Company Common Stock so that such Person's beneficial
ownership of Outstanding Company Common Stock would no longer otherwise qualify
as a Change of Control;
(B) Individuals
who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease
for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company’s shareholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual was a member of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board;
(C) Consummation
by the Company of a reorganization, merger, statutory share exchange or
consolidation or similar transaction involving the Company or any of its
subsidiaries, a sale or other disposition of all or substantially all of the
assets of the Company or the acquisition of assets or stock of another entity by
the Company or any of its subsidiaries (each, a “Business Combination”), in each
case, unless, following such Business Combination, (i) all or substantially all
of the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 60% of the then outstanding shares of common stock (or,
for a non-corporate entity, equivalent securities) and the combined voting power
of the then outstanding voting securities entitled to vote generally in the
election of directors (or, for a non-corporate entity, equivalent governing
body), as the case may be, of the entity resulting from such Business
Combination (including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company’s assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination
of the Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (ii) no Person (excluding any corporation
resulting from such Business Combination
or any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 15% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination and (iii) at least a majority of the members of the board
of directors (or, for a non-corporate entity, equivalent governing body) of the
entity resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the action of
the Board, providing for such Business Combination; or
(D) Approval
by the shareholders of the Company of a complete liquidation or dissolution of
the Company.
vi.
“
Code
” shall mean the
Internal Revenue Code of 1986, as amended.
vii.
“
Disability
” shall
mean [(A) with respect to a Participant party to a Key Employee Change of
Control Contract [or other employment agreement], “Disability” as defined in
such Key Employee Change of Control Contract [or other employment agreement], or
(B) in all other cases, “Disability” will be deemed to have occurred if the
Participant is eligible to receive benefits under the Company’s long-term
disability plan for a period of three (3) months or more.
viii.
“
Employee
” shall mean
any employee of the Company or any of its Operating Segments.
ix.
“
Good Reason
” shall
mean (A) with respect to a Participant party to a Key Employee Change of Control
Contract [or other employment agreement], “Good Reason” (or words of similar
meaning) as defined in Contract [or employment agreement], or (B) in all other
cases, the occurrence after a Company Change in Control of any of the following
events or conditions without the Participant’s express written
consent:
(A) a
material adverse change in the Participant’s status, title, position or
responsibilities (including reporting responsibilities) which, in the
Participant’s reasonable judgment, or the assignment to the Participant of any
duties or responsibilities which, in the Participant’s reasonable judgment, are
materially and adversely inconsistent with such status, title, position or
responsibilities;
(B) a
material reduction by the Company in the Participant’s Base Salary as in effect
immediately prior to the Change in Control or as the same may be increased from
time to time;
(C) the
Company’s requiring the Participant to be based at any place outside a 30-mile
radius from the Participant’s business office location immediately before the
Company Change in Control, except for reasonably required travel on Company
business which is not materially greater than such travel requirements before
the Change in Control;
(D) the
material failure by the Company to continue to provide the Participant with
compensation and benefits substantially similar (in terms of benefit levels
and/or reward opportunities) to those provided for under the Participant’s
Employment Agreement, if applicable, and those provided to him or her under any
of the employee benefit plans in which the Participant becomes a participant, or
the taking of any action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the Participant of any
material fringe benefit enjoyed by him or her at the time of the Company Change
in Control; and
(E) any
material breach by the Company of any provision of the Participant’s employment
agreement with the Company, if any.
In order
to invoke a termination for Good Reason, the Participant shall provide written
notice to the Company of the existence of one or more of the conditions
described in clauses (A) through (E) within 90 days following the Participant’s
knowledge of the initial existence of such condition or conditions, specifying
in reasonable detail the conditions constituting Good Reason, and the Company
shall have 30 days following receipt of such written notice (the “Cure Period”)
during
which it
may remedy the condition. In the event that the Company fails to
remedy the condition constituting Good Reason during the applicable Cure Period,
the Participant’s “separation from service” (within the meaning of Section 409A
of the Code) must occur, if at all, within two years following such Cure Period
in order for such termination as a result of such condition to constitute a
termination for Good Reason.
x.
“
Operating Segment
”,
for any Performance Period, shall mean a division or, subsidiary (directly or
indirectly owned) of the Company.
xi.
“
Participant
”, for any
Performance Period, shall mean an Employee selected by the Committee to
participate in this Plan for that Performance Period.
xii.
“
Performance
Objectives
”, for any Performance Period, shall mean:
(A) For
the Company and/or Operating Segment(s) - one or more financial or operational
performance objectives of the Company and/or Operating Unit(s) established by
the Committee in accordance with Section IV, which may include threshold
Performance Objectives, target Performance Objectives and maximum Award
Performance Objectives. In addition to any other that may be deemed appropriate
by the Committee, Performance Objectives may be expressed in terms
of:
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Net
earnings or net income (before or after
taxes);
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Operating
earnings per share;
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·
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Return
measures (including, but not limited to, return on assets, capital,
equity, or sales);
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·
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Cash
flow (including, but not limited to, operating cash flow, free cash flow,
and cash flow return on capital);
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·
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Earnings
before or after taxes, interest, depreciation, and/or amortization and
including/excluding capital gains and
losses;
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·
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Gross
or operating margins;
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·
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Share
price (including, but not limited to, growth measures and total
shareholder return);
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·
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Working
capital targets;
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or any
combination thereof. Any of these Performance Objectives may be
expressed as an objective before specified items. Performance Objectives may be
expressed as a combination of Company and/or Operating Unit(s)
Performance
Objectives and may be absolute or relative (to prior performance or to the
performance of one or more other entities or external indices) and may be
expressed in terms of a progression within a specified range.
(B) For
the individual – performance ratings, as determined by the Committee in its
annual performance review process for the applicable Performance Period.
"
Performance Period
"
shall be the period beginning January 1st and ending December 31st of each
calendar year unless a shorter or different period is otherwise determined by
the Committee.
9
Exhibit
10.2
SEPARATION
BENEFIT PLAN OF
UNIT
CORPORATION AND PARTICIPATING SUBSIDIARIES
as
amended
effective
October
21, 2008
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Page
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ARTICLE
I. SCOPE
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1
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SECTION
1.1
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NAME
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1
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SECTION
1.2
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PLAN
YEAR
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1
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ARTICLE
II. DEFINITIONS
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1
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2.1
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“COMPENSATION
COMMITTEE”
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1
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2.2
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“BASE
SALARY”
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1
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2.3
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“BENEFICIARY”
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1
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2.4
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“BOARD
OF DIRECTORS”
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1
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2.5
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“BONUS”
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1
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2.6
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“CHANGE
IN CONTROL”
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1
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2.7
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“CHANGE
OF CONTROL CONTRACT”
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3
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2.8
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“CODE”
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3
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2.9
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“COMPANY”
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3
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2.10
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“COMPARABLE
POSITION”
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3
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2.11
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“COMPLETED
YEAR OF SERVICE”
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3
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2.12
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“DISCHARGE
FOR CAUSE”
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3
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2.13
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“ELIGIBLE
EMPLOYEE”
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4
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2.14
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“EMPLOYEE”
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4
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2.15
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“EMPLOYING
COMPANY”
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5
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2.16
|
“ERISA”
|
5
|
|
2.17
|
“HUMAN
RESOURCES DIRECTOR”
|
5
|
|
2.18
|
“PLAN”
|
5
|
|
2.19
|
“SEPARATION
BENEFIT”
|
5
|
|
2.20
|
“SEPARATION
PERIOD”
|
5
|
|
2.21
|
“TERMINATION
OF EMPLOYMENT”
|
5
|
|
2.22
|
“YEARS
OF SERVICE”
|
6
|
|
|
|
|
|
ARTICLE
III. BENEFITS
|
6
|
|
|
|
|
|
SECTION
3.1
|
ELIGIBILITY
|
6
|
|
SECTION
3.2
|
SEPARATION
BENEFIT
|
6
|
|
SECTION
3.3
|
SEPARATION
BENEFIT AMOUNT
|
6
|
|
SECTION
3.4
|
SEPARATION
BENEFIT LIMITATION
|
8
|
|
SECTION
3.5
|
WITHHOLDING
TAX
|
8
|
|
SECTION
3.6
|
REEMPLOYMENT
OF AN ELIGIBLE EMPLOYEE
|
9
|
|
SECTION
3.7
|
INTEGRATION
WITH DISABILITY BENEFITS
|
9
|
|
SECTION
3.8
|
PLAN
BENEFIT OFFSET
|
9
|
|
SECTION
3.9
|
RECOUPMENT
|
9
|
|
SECTION
3.10
|
COMPLETION
OF TWENTY YEARS OF SERVICE
|
9
|
|
SECTION
3.11
|
CHANGE
IN CONTROL
|
10
|
|
|
|
|
|
ARTICLE
IV. METHOD OF PAYMENT
|
10
|
|
|
|
|
|
SECTION
4.1
|
SEPARATION
BENEFIT PAYMENT
|
10
|
|
SECTION
4.2
|
PROTECTION
OF BUSINESS
|
10
|
|
SECTION
4.3
|
DEATH
|
11
|
|
|
|
|
|
ARTICLE
V. WAIVER AND RELEASE OF CLAIMS
|
12
|
|
|
|
|
|
ARTICLE
VI. FUNDING
|
13
|
|
ARTICLE
VII. OPERATION
|
13
|
|
|
|
|
|
SECTION
7.1
|
EMPLOYING
COMPANY PARTICIPATION
|
13
|
|
SECTION
7.2
|
STATUS
OF SUBSIDIARIES
|
13
|
|
SECTION
7.3
|
TERMINATION
BY AN EMPLOYING COMPANY
|
13
|
|
|
|
|
|
ARTICLE
VIII. ADMINISTRATION
|
14
|
|
|
|
|
|
SECTION
8.1
|
NAMED
FIDUCIARY
|
14
|
|
SECTION
8.2
|
FIDUCIARY
RESPONSIBILITIES
|
14
|
|
SECTION
8.3
|
SPECIFIC
FIDUCIARY RESPONSIBILITIES
|
14
|
|
SECTION
8.4
|
ALLOCATIONS
AND DELEGATIONS OF RESPONSIBILITY
|
14
|
|
SECTION
8.5
|
ADVISORS
|
15
|
|
SECTION
8.6
|
PLAN
DETERMINATION
|
15
|
|
SECTION
8.7
|
CLAIMS
REVIEW PROCEDURE
|
15
|
|
SECTION
8.8
|
MODIFICATION
AND TERMINATION
|
17
|
|
SECTION
8.9
|
INDEMNIFICATION
|
17
|
|
SECTION
8.10
|
SUCCESSFUL
DEFENSE
|
17
|
|
SECTION
8.11
|
UNSUCCESSFUL
DEFENSE
|
17
|
|
SECTION
8.12
|
ADVANCE
PAYMENTS
|
18
|
|
SECTION
8.13
|
REPAYMENT
OF ADVANCE PAYMENTS
|
18
|
|
SECTION
8.14
|
RIGHT OF
INDEMNIFICATION
|
18
|
|
|
|
|
|
ARTICLE
IX. EFFECTIVE DATE
|
18
|
|
|
|
|
|
ARTICLE
X. MISCELLANEOUS
|
19
|
|
|
|
|
|
SECTION
10.1
|
ASSIGNMENT
|
19
|
|
SECTION
10.2
|
GOVERNING
LAW
|
19
|
|
SECTION
10.3
|
EMPLOYING
COMPANY RECORDS
|
19
|
|
SECTION
10.4
|
EMPLOYMENT
NON-CONTRACTUAL
|
19
|
|
SECTION
10.5
|
TAXES
|
19
|
|
SECTION
10.6
|
BINDING
EFFECT
|
20
|
|
SECTION
10.7
|
ENTIRE
AGREEMENT
|
20
|
|
SECTION
10.8
|
DECISIONS
AND APPEALS
|
20
|
SEPARATION
BENEFIT PLAN
OF
UNIT CORPORATION AND
PARTICIPATING
SUBSIDIARIES
Introduction
The
purpose of this Plan is to provide financial assistance to Eligible Employees
whose employment has terminated under certain conditions, in consideration of
the waiver and release by such employees of any claims arising or alleged to
arise from their employment or the termination of employment. No employee is
entitled to any payment under this Plan except in exchange for and upon the
Employing Company’s receipt of a written waiver and release given in accordance
with the provisions of this Plan.
ARTICLE
I.
SCOPE
Section
1.1
Name
This Plan
shall be known as the Separation Benefit Plan of Unit Corporation and
Participating Subsidiaries. The Plan is an “employee benefit plan”
governed by the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. §§1001-1461 (“ERISA”).
Section
1.2
Plan
Year
The Plan
Year is the calendar year.
ARTICLE
II.
DEFINITIONS
|
2.1
|
“Compensation
Committee” means the Committee established and appointed by the Board of
Directors or by a committee of the Board of
Directors.
|
|
2.2
|
“Base
Salary” means the regular basic cash remuneration before deductions for
taxes and other items withheld, and without regard to any salary reduction
pursuant to any plans maintained by an Employing Company under Section 401
(k) or 125 of the Code, payable to an Employee for services rendered to an
Employing Company, but not including pay for Bonuses, incentive
compensation, special pay, awards or
commissions.
|
|
2.3
|
“Beneficiary”
means the person
designated by an Eligible Employee in a written instrument filed with an
Employing Company to receive benefits under this
Plan.
|
|
2.4
|
“Board
of Directors”
means
the board of directors of the
Company.
|
|
2.5
|
“Bonus
” means any annual
incentive compensation paid to an Employee over and above Base Salary
earned and paid in cash or
otherwise.
|
|
2.6
|
“Change
in Control” of the Company shall be deemed to have occurred as of the
first day that any one or more of the following conditions shall have been
satisfied:
|
(i)
On the close of business on the tenth
day following the time the Company learns of the acquisition by any individual
entity or group (a “Person”), including any “person” within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act, of beneficial ownership within
the meaning of Rule 13d 3 promulgated under the Exchange Act, of 15% or more of
either (i) the then outstanding shares of Common Stock of the Company (the
“Outstanding Company Common Stock”) or (ii) the combined voting power of the
then outstanding securities of the Company entitled to vote generally in the
election of Directors (the “Outstanding Company Voting Securities”);
excluding, however, the following: (A) any acquisition directly from the Company
(excluding any acquisition resulting from the exercise of an exercise,
conversion or exchange privilege unless the security being so exercised,
converted or exchanged was acquired directly from the Company); (B) any
acquisition by the Company; (C) any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company; (D) any acquisition by any corporation pursuant to a
transaction with complies with clauses (i), (ii) and (iii) of subsection (iii)
of this definition and (E) if the Board of Directors of the Company determines
in good faith that a Person became the beneficial owner of 15% or more of the
Outstanding Company Common Stock inadvertently (including, without limitation,
because (A) such Person was unaware that it beneficially owned a percentage of
Outstanding Company Common Stock that would cause a Change of Control or (B)
such Person was aware of the extent of its beneficial ownership of Outstanding
Company Common Stock but had no actual knowledge of the consequences of such
beneficial ownership under this Plan) and without any intention of changing or
influencing control of the Company, then the beneficial ownership of Outstanding
Company Common Stock by that Person shall not be deemed to be or to have become
a Change of Control for any purposes of this Plan unless and until such Person
shall have failed to divest itself, as soon as practicable (as determined, in
good faith, by the Board of Directors of the Company), of beneficial ownership
of a sufficient number of Outstanding Company Common Stock so that such Person’s
beneficial ownership of Outstanding Company Common Stock would no longer
otherwise qualify as a Change of Control;
(ii)
individuals
who, as of the date hereof, constitute the Board of Directors (the “Incumbent
Board”) cease for any reason to constitute at least a majority of such Board;
provided that any individual who becomes a Director of the Company subsequent to
the date hereof whose election, or nomination for election by the Company’s
stockholders, was approved by the vote of at least a majority of the Directors
then comprising the Incumbent Board shall be deemed a member of the Incumbent
Board; and provided further, that any individual who was initially elected as a
Director of the Company as a result of an actual or threatened election contest,
as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange act, or any other actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board shall not be deemed
a member of the Incumbent Board;
(iii)
approval by the stockholders of the
company of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a
“Corporate Transaction”); excluding, however, a Corporate Transaction Pursuant
to which (i) all or substantially all of the individuals or entities who are the
beneficial owners, respectively, of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities
immediately prior to such Corporate Transaction will beneficially own, directly
or indirectly, more than 70% of, respectively, the outstanding shares of common
stock, and the combined voting power of the outstanding securities of such
corporation entitled to vote generally in the election of Directors, as the case
may be, of the corporation resulting from such Corporate Transaction (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company’s assets either directly or
indirectly) in substantially the same proportions relative to each other as
their ownership, immediately prior to such Corporate Transaction, of the
Outstanding Company Common stock and the Outstanding Company Voting Securities,
as the case may be, (ii) no Person (other than: the Company; the corporation
resulting from such Corporate Transaction; and any Person which beneficially
owned, immediately prior to such Corporate Transaction, directly or indirectly,
25% or more of the Outstanding Company Common Stock or the Outstanding Voting
Securities, as the case may be) will beneficially own, directly or indirectly,
25% or more of, respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined voting
power of the outstanding securities of such corporation entitled to vote
generally in
the election of Directors and (iii) individuals who were
members of the Incumbent Board will constitute a majority of the members of the
Board of Directors of the corporation resulting from such Corporate Transaction;
or
(iv)
approval
by the stockholders of the Company of a plan of complete liquidation or
dissolution of the Company.
|
2.7
|
“Change
of Control Contract” means a Unit Corporation Key Employee Change of
Control Contract entered into between Unit Corporation and the individual
identified in such agreement as
“Executive”.
|
|
2.8
|
“Code”
means the Internal Revenue Code of 1986, as amended from time to
time.
|
|
2.9
|
“Company”
means Unit Corporation, the sponsor of this
Plan.
|
|
2.10
|
“Comparable
Position” means a job with an Employing Company or successor company at
the same or higher Base Salary as an Employee’s current job and at a work
location within reasonable commuting distance from an Employee’s home, as
determined by such Employee’s Employing
Company.
|
|
2.11
|
“Completed
Year of Service” means the period of time beginning with an Employee’s
date of hire or the anniversary of such date of hire and ending twelve
months thereafter.
|
|
2.12
|
“Discharge
for Cause” means termination of the Employee’s employment by the Employing
Company due to:
|
(i)
the
consistent failure of the Employee to perform the Employee’s prescribed duties
to the Employing Company (other than any such failure resulting from the
Employee’s incapacity due to physical or mental illness);
(ii)
the
commission by the Employee of a wrongful act that caused or was reasonably
likely to cause damage to the Employing Company;
(iii)
an act of
gross negligence, fraud, unfair competition, dishonesty or misrepresentation in
the performance of the Employee’s duties on behalf of the Employing
Company;
(iv)
the
conviction of or the entry of a plea of nolo contendere by the Employee to any
felony or the conviction of or the entry of a plea of nolo contendere to any
offense involving dishonesty, breach of trust or moral turpitude;
or
(v)
a breach
of an Employee’s fiduciary duty involving personal profit.
|
2.13
|
“Eligible
Employee” means an Employee who is determined to be eligible to
participate in this Plan and receive benefits under Article
Three
|
(a)
“Employee”
means a person who is
(i)
a regular
full-time salaried employee of the Employing Company principally employed in the
continental United States, Alaska or Hawaii;
(ii)
employed
by an Employing Company for work on a regular full-time salaried schedule of at
least 40 hours per week for an indefinite period; or
(iii)
a regular
employee who has been demoted or transferred from a full-time salaried position
to an hourly position and who, in the discretion of Employing Company is deemed
to retain his or her eligibility to participate in the Plan.
(b)
“Employee”
does not, under any circumstance, mean a person who is
(i)
an
employee whose compensation is determined on an hourly basis or who holds a
position with the Employing Company that is generally characterized as an
“hourly” position, except were a specific employee is, after demotion, deemed to
be eligible to participate in the Plan under paragraph (a)(iii),
above;
(ii)
an
employee who is classified by the Employing Company as a temporary
employee;
(iii)
an
employee who is a member of a bargaining unit unless the employee’s union has
bargained this Plan pursuant to a current collective bargaining agreement
between the Employing Company and the union or the employee’s union bargains
this Plan pursuant to the bargaining obligations mandated by the National Labor
Relations Act;
(iv)
an
employee retained by the Employing Company under a written contract, other than
a Change of Control Contract; or
(v)
any
worker who is retained by the Company or Employing Company as a “independent
contractor,” “leased employee,” or “temporary employee” but who is reclassified
as an “employee” of the Company or Employing Company by a state or federal
agency or court of competent jurisdiction.
|
2.15
|
“Employing
Company” means the Company or any subsidiary of the Company electing to
participate in this Plan under the provisions of Section
7.1.
|
|
2.16
|
“ERISA” means the
Employee Retirement Income Security Act of 1974, as from time to time
amended, and all regulations and rulings issued thereunder by governmental
administrative bodies.
|
|
2.17
|
“Human
Resources Director” means the Human Resources Director of the
Company.
|
|
2.18
|
“Plan”
means the Separation Benefit Plan of Unit Corporation and Participating
Subsidiaries Plan, as set forth herein and as hereafter amended from time
to time.
|
|
2.19
|
“Separation
Benefit” means the benefit provided for under this Plan as determined
under Article Three.
|
|
2.20
|
“Separation
Period” means the period of time over which an Employee receives
Separation Benefits under the Plan in semimonthly or other installment
payments.
|
|
2.21
|
“Termination
of Employment” means an Employee’s separation from the service of an
Employing Company determined by the Employing Company, provided that a
Termination of Employment does not include any separation from service
resulting from:
|
(i)
Discharge
for Cause,
(ii)
court
decree or government action or recommendation having an effect on an Employing
Company operations or manpower involving rationing or price control or any other
similar type cause beyond the control of an Employing Company,
(iii)
prior to
a Change in Control, an offer to the Employee of a position with an Employing
Company, or affiliate, regardless whether the position offered provides
comparable wages and benefits to the position formerly held by the
Employee,
(iv)
termination
pursuant to which an Employee accepts any benefits under an incentive retirement
plan or other severance or separation plan,
(v)
termination
of an Employee who has a written employment contract which contains severance
provisions, or
(vi)
failure
of an Employee to report to work as required by his or her Employing
Company.
Temporary
work cessations due to strikes, lockouts or similar reasons shall not be
considered a Termination of Employment. An Employee’s separation from service in
connection
with the divestiture of any business of an Employing Company shall not
constitute a Termination of Employment if the Employee is offered a Comparable
Position by the purchaser or successor of such business, an affiliate thereof,
or an affiliate of an Employing Company. A separation from service by an
Employee who is offered a Comparable Position arranged for or secured by an
Employing Company does not constitute a Termination of Employment.
Notwithstanding
anything in this Section 2.21 to the contrary, a Termination of Employment shall
be deemed to include any termination pursuant to which an Employee is entitled
to receive benefits under the terms of a Change of Control
Contract.
A
Termination of Employment shall be effective on the date specified by the
Employing Company (the “Termination Date”).
|
2.22
|
“Years
of Service” means the sum of the number of continuous Completed Years of
Service as an Employee of an Employing Company during the period of
employment beginning with the Employee’s most recent hire date and ending
with the Employee’s most recent termination date. Provided, in the event
an Employee was a member of the Board of Directors of an Employing Company
prior to (or after) the adoption of the August 21, 2007 Amendment to the
Plan, such Employee shall be credited with the period of time beginning
with his date of hire with an Employing Company, and the provisions in
Section 2.14(b)(vi) of any prior version of the Plan shall be
disregarded.
|
ARTICLE
III.
BENEFITS
Section
3.1
Eligibility
Each
Employee who has at least one active Year of Service with an Employing Company
immediately preceding the date of his or her Termination of Employment, who
complies with all administrative requirements of this Plan, including the
provisions of Article Five, and who works through his/her Termination Date and
who is not engaged in a strike or lockout as of the Termination Date, is
eligible to participate in this Plan and, subject to all the terms of the Plan,
receive benefits as provided in this Article Three. An Employee is ineligible to
participate in this Plan if such Employee fails to satisfy any of the
requirements of this Plan including, but not limited to, failure to establish
that his or her termination meet the requirements for a Termination of
Employment.
Section
3.2
Separation
Benefit
A
Separation Benefit shall be provided for Eligible Employees under the provisions
of this Article Three.
Section
3.3
Separation
Benefit Amount
The
Separation Benefit payable to an Eligible Employee under the Plan shall be
based, in part, on his/her Years of Service with the Company, or Employing
Company. The formula for determining an Employee’s Separation Benefit payment
shall be calculated by dividing the
Employee’s
average Base Salary for the one year period ending immediately prior to the date
of Termination of Employment by 52 to calculate the weekly separation benefit
(the “Weekly Separation Benefit”). The amount of the Separation Benefit payable
to the Eligible Employee shall then be determined in accordance with the
following applicable provision:
3.3.1
Involuntary separation
-
In the event the
Termination of Employment is the result of an Employing Company terminating the
employment of the Eligible Employee, the Separation Benefit shall be determined
according to the following schedule:
Involuntary
Separation
Schedule
of Separation Benefits
|
Years
of
Service
|
Number
of Weekly
Separation
Benefit
Payments
|
Years
of
Service
|
Number
of Weekly
Separation
Benefit
Payments
|
|
1
|
4
|
14
|
56
|
|
2
|
8
|
15
|
60
|
|
3
|
12
|
16
|
64
|
|
4
|
16
|
17
|
68
|
|
5
|
20
|
18
|
72
|
|
6
|
24
|
19
|
76
|
|
7
|
28
|
20
|
80
|
|
8
|
32
|
21
|
84
|
|
9
|
36
|
22
|
88
|
|
10
|
40
|
23
|
92
|
|
11
|
44
|
24
|
96
|
|
12
|
48
|
25
|
100
|
|
13
|
52
|
26
or more
|
104
|
|
|
|
|
|
3.3.2
Voluntary separation or death of the
Eligible Employee
-
In the event the Termination of Employment is the result of the Eligible
Employee’s own action (such as by way of example and not limitation, quitting,
resignation or retirement) or is as a result of the Eligible Employee’s death,
the Separation Benefit shall be determined according to the following
Schedule:
Voluntary
Separation
Schedule
of Separation Benefits
|
Years
of
Service
|
Number
of Weekly
Separation
Benefit
Payments
|
|
1-19
|
0
|
|
20
|
80
|
|
21
|
84
|
|
22
|
88
|
|
23
|
92
|
|
24
|
96
|
|
25
|
100
|
|
26
or more
|
104
|
Under
certain exceptional circumstances the Compensation Committee may, in its sole
and absolute discretion, choose to treat a voluntary separation as an
involuntary separation and allow an Eligible Employee to receive Separation
Benefits in accordance with the schedule set forth in Section
3.3.1.
Section
3.4
Separation
Benefit Limitation
Notwithstanding
anything in the Plan to the contrary, the Separation Benefit payable to any
Eligible Employee under this Plan shall never exceed the lesser of (i) 104
Weekly Separation Benefit payments; or (ii) the amount permitted under ERISA to
maintain this Plan as a welfare benefit plan. The benefits payable under this
Plan shall be inclusive of and offset by any other severance or termination
payments (other than those made pursuant to a Change of Control Contract) made
by an Employing Company, including, but not limited to, any amounts paid
pursuant to federal, state, local or foreign government worker notification
(e.g., Worker Adjustment and Retraining Notification Act) or office closing
requirements.
Section
3.5
Withholding
Tax
The
Employing Company shall deduct from the amount of any Separation Benefits
payable under the Plan, any amount required to be withheld by the Employing
Company by reason of any law or regulation, for the payment of taxes or
otherwise to any federal, state, local or foreign government. In determining the
amount of any applicable tax, the Employing Company shall be entitled to rely on
the number of personal exemptions on the official form(s) filed by the Employee
with the Employing Company for purposes of income tax withholding on regular
wages.
Section
3.6
Reemployment
of an Eligible Employee
Entitlement
to the unpaid balance of any Separation Benefit amount due an Eligible Employee
under this Plan shall be revoked immediately upon reemployment of the person as
an Employee of an Employing Company. Such unpaid balance shall not be payable in
any future period.
However,
if the person’s re-employment is subsequently terminated and he or she then
becomes entitled to a Separation Benefit under this Plan, Years of Service for
the period of re-employment shall be added to that portion of his or her prior
service represented by the unpaid balance or the revoked entitlement for the
prior Separation Benefit.
Section
3.7
Integration
with Disability Benefits
The
Separation Benefit payable to an Eligible Employee with respect to any
Separation Period shall be reduced (but not below zero) by the amount of any
disability benefit payable from any disability plan or program sponsored or
contributed to by an employing Company. The amount of any such reduction shall
not be paid to the Eligible Employee in any future period.
Section
3.8
Plan
Benefit Offset
The
amount of any severance or separation type payment that an Employing Company is
or was obligated to pay to an Eligible Employee under any law, decree, court
award, contract, program or other arrangement because of the Eligible Employee’s
separation from service from an Employing Company shall reduce the amount of
Separation Benefit otherwise payable under this Plan. Notwithstanding the
immediately preceding sentence, the terms of this Section 3.8 shall not be
applicable to any benefits paid under a Change of Control Contract.
Section
3.9
Recoupment
An
Employing Company may deduct from the Separation Benefit any amount owing to an
Employing Company from
(a)
the
Eligible Employee, or
(b)
the
executor or administrator of the Eligible Employee’s estate.
Section
3.10
Completion
of Twenty Years of Service
Any
Eligible Employee who shall complete Twenty Years of Service prior to the
termination of this Plan shall be vested in his/her Separation Benefit
notwithstanding the subsequent termination of this Plan prior to such Employee’s
Termination of Employment. Any Separation Benefit deemed to have vested pursuant
to this section shall be payable upon such Employee’s Termination of Employment
with the Employing Company and shall be paid in accordance with the greater of
(1) the Plan provisions in effect immediately prior to the termination of this
Plan, and (2) the Plan provisions in effect on the date the Employee completed
Twenty Years of Service.
Section
3.11
Change in
Control
Unless
otherwise provided in writing by the Board of Directors prior to a Change in
Control of the Company, all Eligible Employees shall be vested in his/her
Separation Benefit as of the date of the Change in Control based on such
Eligible Employee’s then Years of Service as determined by reference to the
schedule set forth in Section 3.3.1 of this Plan. Any Separation Benefit deemed
to have vested pursuant to this section shall be payable upon the Eligible
Employee’s Termination of Employment with the Employing Company and shall be
paid in accordance with the Plan provisions in effect immediately prior to the
Change in Control.
ARTICLE
IV.
METHOD
OF PAYMENT
Section
4.1
Separation
Benefit Payment
Separation
Benefit payments shall, unless otherwise determined by the Compensation
Committee, be paid in the same manner as wages were paid to the
Employee.
Section
4.2
Protection
of Business
4.2.1
Any
Eligible Employee who receives Separation Benefits under Section 3.3 of this
Plan agrees that, in consideration of the Separation Benefits, the Employee will
not, in any capacity, directly or indirectly, and on his or her own behalf or on
behalf of any other person or entity, during the period of time he or she is
receiving such Separation Benefits, either (a) solicit or attempt to induce any
current customer of the Employing Company to cease doing business with the
Employing Company; (b) solicit or attempt to induce any employee of the
Employing Company to sever the employment relationship; (c) compete against the
Employing Company; (d) injure the Employing Company and the Company, in their
business activities or its reputation; or (e) act as an employee, independent
contractor, or service provider of a person or entity that is a competitor of
the Employing Company or injures the Employing Company or the Company, its
business activities or its reputation (collectively, the “Protection of Business
Requirements”). The Compensation Committee in its sole discretion
shall decide whether any Eligible Employee is in violation of this
provision.
4.2.2
Except as
provided in the next paragraph and/or the Separation Agreement, in the event the
Eligible Employee violates the Protection of Business Requirements of this
Section (or the like provisions of his or her Separation Agreement), the
Eligible Employee shall not be entitled to any further payments of Separation
Benefits under this Plan and shall be obligated to repay the Employing Company
all monies previously received as Separation Benefits from the date of the
violation forward.
4.2.3
In the
event of a Change in Control, Employee’s obligations under this Section shall
expire and be canceled, and Employee shall be entitled to Separation Benefits
under this Plan in accordance with its terms even if he or she engages in
conduct that would otherwise violate the Protection of Business Requirements in
this Section.
4.2.4
The Plan
shall maintain records for each Eligible Employee that is eligible for
Separation Benefits and for each Eligible Employee that actually receives
Separation Benefits (including relevant dates, claim records, appeal records,
payment amounts, etc.);
4.2.5
The Plan
shall pay benefits to Eligible Employees on a regular basis. The Plan
shall process and pay Separation Benefits on a regular basis, and adjudicate
claims for denied or terminated Separation Benefits.
4.2.6
The
Compensation Committee shall have the ultimate ongoing administrative duty to
monitor and investigate the activities of Eligible Employees to ensure they are
in compliance with the Protection of Business Requirements. As set
forth herein, the Compensation Committee shall have discretion to determine on
an ongoing basis regarding whether each Eligible Employee receiving Separation
Benefits remains in compliance with the Plan’s Protection of Business
Requirements during the period the Eligible Employee is receiving separation
benefits.
4.2.7
The
Compensation Committee shall have full and sole discretion to determine
eligibility for Separation Benefits and to construe the terms of the
Plan.
4.2.8
By
accepting Separation Benefits, an Eligible Employee certifies that he/she is in
compliance with the Protection of Business Requirements. Eligible
employees must notify the Plan, through the Human Resources Director, of any
change of employer, employment status, or job status or responsibilities, while
eligible for Separation Benefits. Additionally, Eligible Employees
receiving benefits must complete and submit on request to the Plan a form
certifying that they are in compliance with the Protection of Business
Requirements. The Human Resources Director shall review such forms
and make preliminary decisions whether the Eligible Employee is in compliance
with the Protection of Business Requirements;
4.2.9
As a
condition to receiving Separation Benefits or coverage, Eligible Employees and
their employers must fully cooperate with any inquiry or investigation by the
Plan concerning the Protection of Business Requirements. If the
Eligible Employee or employer fails to fully cooperate with any such inquiry or
investigation, the Eligible Employee shall be deemed to have been in violation
of the Protection of Business Requirements, and shall be deemed to have forfeit
any further benefits under the Plan and shall be obligated to repay the
Employing Company all monies previously received as Separation
Benefits;
4.2.10
The
Company shall maintain a projection of the amount of money that will be required
for the Company to fulfill its unfunded obligation under the Plan to make
payments to various Eligible Employees at different times;
Section
4.3
Death
(a)
Termination of Employment as a
result of death of Eligible Employee
- In the event that the Eligible
Employee’s Termination of Employment is as a result of the Employee’s death, the
Separation Benefit shall be paid to the Eligible Employee’s Beneficiary in
accordance with the provisions of Section 3.3.2, above.
Payments
shall be made to the Eligible Employee’s Beneficiary, notwithstanding the
Eligible Employee’s failure to meet the waiver and release conditions of Article
Five of the Plan.
(b)
Death of the Eligible Employee
Subsequent to Termination of Employment -
In the event that an Eligible
Employee’s death occurs subsequent to the date of Termination of Employment, and
before receipt of any or all of the benefits to which the Eligible Employee was
entitled under this Plan, then the Compensation Committee may, in its sole and
absolute discretion, pay a computed lump sum value of the unpaid balance of the
Eligible Employee’s Separation Benefit to the Eligible Employee’s Beneficiary,
and if there is no designated, living Beneficiary, the computed lump sum value
described above may be paid to the executor or administrator of the Eligible
Employee’s estate. For purposes of calculating the computed lump sum value as
provided herein, the Compensation Committee may discount the present value of
the future Separation Benefit payments using a commercially reasonable discount
rate.
ARTICLE
V.
WAIVER
AND RELEASE OF CLAIMS
Except as
provided in Section 4.3(a), above, it is a condition of this Plan that no
Separation Benefit shall be paid to or for any Employee except upon due
execution and delivery to the Employing Company by that Employee of a Separation
Agreement in substantially the form attached to this Plan as Attachment “A” or
“B” or such other form as may be designated as the required Separation Agreement
from time to time, in the discretion of the Employing Company, by which the
Employee waives and releases the Company, its subsidiaries and their officers,
directors, agents, employees and affiliates from all claims arising or alleged
to arise out of his or her employment or the termination of employment
including, but not limited to the Age Discrimination in Employment Act of 1967,
Title VII of the Civil Rights Act of 1964, as amended, and all other state and
federal laws governing the Employee’s employment. Said waiver and release as
provided in the Separation Agreement being given in exchange for and in
consideration of payment of the Separation Benefit, to which the Employee would
not otherwise be entitled. The determination whether the Employee shall be
required to execute a Separation Agreement in the form shown by Attachment “A,”
“B” or otherwise shall be within the sole discretion of the Employing
Company.
In
connection with the execution of the Separation Agreement, the following
procedures shall be followed (except as modified from time to time, in the
discretion of the Employing Company): the Employee shall be advised in writing,
by receiving the written text of the Separation Agreement so stating, to consult
a lawyer before signing the Separation Agreement; the Employee shall be given
either twenty-one (21) days (when form shown by Attachment “A” is used), or
forty-five (45) days (when form shown by Attachment “B” is used) to consider the
Separation Agreement before signing; after signing, the Employee shall have
seven (7) days in which to revoke the Separation Agreement; and the Separation
Agreement shall not take effect until the seven (7) day revocation period has
passed.
In
addition, where the form shown by Attachment “B” is used, the Employee shall be
given: a written statement identifying for the Employee the class, unit or group
of persons eligible to participate in the Plan and any time limits for
eligibility under the Plan; and the job titles and ages of all persons eligible
or selected for separation under the Plan in the same job
classification
or organizational unit, and the ages of all persons not eligible or selected for
separation under the Plan.
ARTICLE
VI.
FUNDING
This Plan
is an
unfunded
employee
welfare benefit plan under ERISA established by the Company. Benefits payable to
Eligible Employees shall be paid out of the general assets of the Employing
Company. The Employing Company shall not be required to establish any special or
separate fund or to make any other segregation of assets to assure the payment
of any Separation Benefits under the Plan.
ARTICLE
VII.
OPERATION
Section
7.1
Employing
Company Participation
Any
subsidiary of the Company may participate as an Employing Company in the Plan
upon the following conditions:
(a)
Such
subsidiary shall make, execute and deliver such instruments as the Company shall
deem necessary or desirable;
(b)
Such
subsidiary may withdraw from participation as an Employing Company upon notice
to the Company in which event such subsidiary may continue the provisions or
this Plan as its own plan, and may thereafter, with respect thereto, exercise
all of the rights and powers theretofore reserved to the Company;
and
(c)
Any
modification or amendment of the Plan made or adopted by the Company shall be
deemed to have been accepted by each Employing Company.
Section
7.2
Status of
Subsidiaries
The
authority of each subsidiary to act independently and in accordance with its own
best judgment shall not be prejudiced or diminished by its participation in this
Plan and at the same time the several Employing Company may act collectively in
respect of general administration of this Plan in order to secure administrative
economies and maximum uniformity.
Section
7.3
Termination
by an Employing Company
Any
Employing Company other than the Company may withdraw from participation in the
Plan at any time by delivering to the Compensation Committee written
notification to that effect signed by such Employing Company’s chief executive
officer or his delegate. Withdrawal by any Employing Company pursuant to this
paragraph or complete discontinuance of Separation Benefits under the Plan by
any Employing Company other than the Company, shall constitute termination of
the Plan with respect to such Employing Company, but such actions shall not
affect any Separation Benefit that has become payable to an Eligible Employee,
and
such
benefit shall continue to be paid in accordance with the Plan provisions in
effect on the Termination of Employment.
ARTICLE
VIII.
ADMINISTRATION
Section
8.1
Named
Fiduciary
This Plan
shall be administered by the Company acting through the Compensation Committee
or such other person as may be designated by the Company from time to time. The
Compensation Committee shall be the “Administrator” of the Plan and shall be, in
its capacity as Administrator, a “Named Fiduciary,” as such terms are defined or
used in ERISA.
Section
8.2
Fiduciary
Responsibilities
The named
fiduciary shall fulfill the duties and requirements of such a fiduciary under
ERISA and is the Plan’s agent for service of legal process. The named fiduciary
may designate other persons to carry out such fiduciary responsibilities and may
cancel such a designation. A person may serve in more than one fiduciary or
administrative capacity with respect to this Plan. The named fiduciary shall
periodically review the performance of the fiduciary responsibilities by each
designated person.
Section
8.3
Specific
Fiduciary Responsibilities
The
Compensation Committee shall be responsible for the general administration and
interpretation of the Plan and the proper execution of its provisions and shall
have full discretion to carry out its duties. In addition to any powers of the
Compensation Committee specified elsewhere in this Plan, the Compensation
Committee shall have all discretionary powers necessary to discharge its duties
under this Plan, including, but not limited to, the following discretionary
powers and duties:
8.3.1
To
interpret or construe the terms of the Plan, including eligibility to
participate, and resolve ambiguities, inconsistencies and
omissions;
8.3.2
To make
and enforce such rules and regulations and prescribe the use of such forms as it
deems necessary or appropriate for the efficient administration of the
Plan;
8.3.3
To decide
all questions concerning the Plan and the eligibility of any person to
participate in the Plan; and
8.3.4
To
determine eligibility for benefits under the Plan.
Section
8.4
Allocations
and Delegations of Responsibility
The Board
of Directors and the Compensation Committee respectively shall have the
authority to delegate, from time to time, all or any part of its
responsibilities under this Plan to such person or persons as it may deem
advisable and in the same manner to revoke any such
delegation
of responsibility. Any action of the delegate in the exercise of such delegated
responsibilities shall have the same force and effect for all purposes hereunder
as if such action had been taken by the Board of Directors or the Compensation
Committee. The Company, the Board of Directors and the Compensation Committee
shall not be liable for any acts or omissions of any such delegate. The delegate
shall report periodically to the Board of Directors or the Compensation
Committee, as applicable, concerning the discharge of the delegated
responsibilities.
The Board
of Directors and the Compensation Committee respectively shall have the
authority to allocate, from time to time, all or any part of its
responsibilities under this Plan to one or more of its members as it may deem
advisable, and in the same manner to remove such allocation of responsibilities.
Any action of the member to whom responsibilities are allocated in the exercise
of such allocated responsibilities shall have the same force and effect for all
purposes hereunder as if such action had been taken by the Board of Directors or
the Compensation Committee. The Company, the Board of Directors and the
Compensation Committee shall not be liable for any acts or omissions of such
member. The member to whom responsibilities have been allocated shall report
periodically to the Board of Directors or the Compensation Committee, as
applicable, concerning the discharge of the allocated
responsibilities.
Section
8.5
Advisors
The named
fiduciary or any person designated by the named fiduciary to carry out fiduciary
responsibilities may employ one or more persons to render advice with respect to
any responsibility imposed by this Plan.
Section
8.6
Plan
Determination
The
determination of the Compensation Committee as to any question involving the
general administration and interpretation or construction of the Plan shall be
within its sole discretion and shall be final, conclusive and binding on all
persons, except as otherwise provided herein or by law.
Section
8.7
Claims
Review Procedure
Consistent
with the requirements of ERISA and the regulations thereunder as promulgated by
the Secretary of Labor from time to time, the following claims review procedure
shall be followed with respect to the denial of Separation Benefits to any
Employee:
8.7.1
Within thirty (30) days from the date
of an Employee’s Termination of Employment, the Employing Company shall furnish
such Employee with an agreement and release offering
Separation Benefits
under the Plan or notice of such Employee’s ineligibility for or denial of
Separation Benefits, either in whole or in part. Such notice from the Employing
Company will be in writing and sent to the Employee or the legal representatives
of his estate stating the reasons for such ineligibility or denial and, if
applicable, a description of additional information that might cause a
reconsideration by the Compensation Committee or its delegate of the decision
and an explanation for the Plan’s claims review procedure. In the event such
notice is not furnished within thirty
(30)
days, any claim for Separation Benefits shall be deemed denied and the Employee
shall be permitted to proceed to Section 8.7.2 below.
8.7.2
Each
Employee may submit a claim for benefits to the Compensation Committee (or to
such other person as may be designated by the Compensation Committee) in writing
in such form as is permitted by the Compensation Committee. An Employee shall
have no right to seek review of a denial of benefits, or to bring any action in
any court to enforce a claim for benefits prior to his filing a claim for
benefits and exhausting his rights to review under this section.
When
claim for benefits has been filed properly, such claim for benefits shall be
evaluated and the Employee shall be notified of the approval or the denial
within ninety (90) days after the receipt of such claim unless special
circumstances require an extension of time for processing the claim. If such an
extension of time for processing is required, written notice of the extension
shall be furnished to the Employee prior to the termination of the initial
ninety (90) day period which shall specify the special circumstances requiring
an extension and the date by which a final decision shall be reached (which date
shall not be later than one hundred and eighty (180) days after the date on
which the claim was filed). The Employee shall be given a written notice in
which the Employee shall be advised as to whether the claim is granted or
denied, in whole or in part. If a claim is denied by the Compensation Committee,
in whole or in part, the Employee shall be given written notice which shall
contain (1) the specific reasons for the denial, (2) references to pertinent
Plan provisions upon which the denial is based, (3) a description of any
additional material or information necessary to perfect the claim and an
explanation of why such material or information is necessary, and (4) the
Employee’s rights to seek review of the denial.
8.7.3
If a
claim is denied, in whole or in part, the Employee shall have the right to
request that the Compensation Committee review the denial, provided that the
Employee files a written request for review with the Compensation Committee
within sixty (60) days after the date on which the Employee received written
notification of the denial. The Employee (or his duly authorized representative)
may review pertinent documents and submit issues and comments in writing to the
Compensation Committee. Within a reasonable period, which shall not be later
than sixty (60) days after a request for review is received the review shall be
made and the Employee shall be advised in writing of the decision on review,
unless special circumstances require an extension of time for processing the
review, in which case the Employee shall be given a written notification within
such initial sixty (60) day period specifying the reasons for the extension and
when such review shall be completed (provided that such review shall be
completed within one hundred and twenty (120) days after the date on which the
request for review was filed). The decision on review shall be forwarded to the
Employee in writing and shall include specific reasons for the decision and
references to Plan provisions upon which the decision is based. A decision on
review shall be final and binding on all persons.
8.7.4
If an
Employee fails to file a request for review in accordance with the procedures
herein outlined, such Employee shall have no rights to review and shall have
no right
to bring action in any court and the denial of the claim shall become final and
binding on all Persons for all purposes.
8.7.5
The
determinations whether any
person qualifies as an Eligible Employee under the Plan; and whether to grant or
deny any claim for benefits under this Plan shall be made by the Compensation
Committee, in its sole and absolute discretion, and all such determinations
shall be conclusive and binding on all persons to the maximum extent permitted
by law.
Section
8.8
Modification
and Termination
Benefits
under this Plan are not vested and may be changed, modified or terminated at any
time, either individually or on a Plan wide basis. The Company may at
any time, without notice or consent of any person, terminate or modify this Plan
in whole or in part, and such termination or modification shall apply to
existing as well as to future employees. However, such actions shall
not affect any Separation Benefit that has become payable to an Eligible
Employee as a result of that Employee’s Termination of Employment before this
amendment date, and that benefit shall continue to be paid in accordance with
the Plan provisions in effect on the date of the that Employee's Termination of
Employment.
Section
8.9
Indemnification
To the
extent permitted by law, the Company shall indemnify and hold harmless the
members of the Board of Directors, the Compensation Committee members, and any
employee to whom any fiduciary responsibility with respect to this Plan is
allocated or delegated to, and against any and all liabilities, costs and
expenses incurred by any such person as a result of any act, or omission to act,
in connection with the performance of his/her duties, responsibilities and
obligations under this Plan, ERISA and other applicable law, other than such
liabilities, costs and expenses as may result from the gross negligence or
willful misconduct of any such person. The foregoing right of indemnification
shall be in addition to any other right to which any such person may be entitled
as a matter of law or otherwise. The Company may obtain, pay for and keep
current a policy or policies of insurance, insuring the members of the Board of
Directors, the Compensation Committee members and any other employees who have
any fiduciary responsibility with respect to this Plan from and against any and
all liabilities, costs and expenses incurred by any such person as a result of
any act, or omission, in connection with the performance of his/her duties,
responsibilities and obligations under this Plan and under ERISA.
Section
8.10
Successful
Defense
A person
who has been wholly successful, on the merits or otherwise, in the defense of a
civil or criminal action or proceeding or claim or demand of the character
described in Section 8.9 above shall be entitled to indemnification as
authorized in such Section 8.9.
Section
8.11
Unsuccessful
Defense
Except as
provided in Section 8.10 above, any indemnification under Section 8.9 above,
unless ordered by a court of competent jurisdiction, shall be made by the
Company only if authorized in the specific case:
8.11.1
By the
Board of Directors acting by a quorum consisting of directors who are not
parties to such action, proceeding, claim or demand, upon a finding that the
member of the Compensation Committee has met the standard of conduct set forth
in Section 8.9 above; or
8.11.2
If a
quorum under Section 8.11.1 above is not obtainable with due diligence the Board
of Directors upon the opinion in writing of independent legal counsel (who may
be counsel to any Employing Company) that indemnification is proper in the
circumstances because the standard of conduct set forth in Section 8.9 above has
been met by such member of the Compensation Committee.
Section
8.12
Advance
Payments
Expenses
incurred in defending a
civil or criminal action or proceeding or claim or demand may be paid by the
Company or Employing Company, as applicable, in advance of the final disposition
of such action or proceeding, claim or demand, if authorized in the manner
specified in Section 8.11 above, except that, in view of the obligation of
repayment set forth in Section 8.13 below, there need be no finding or opinion
that the required standard of conduct has been met.
Section
8.13
Repayment
of Advance Payments
All
expenses
incurred
, in
defending a civil or criminal action or proceeding, claim or demand, which are
advanced by the Company or Employing Company, as applicable, under Section 8.12
above shall be repaid in case the person receiving such advance is ultimately
found, under the procedures set forth in this Article Eight, not to be entitled
to the extent the expenses so advanced by the Company exceed the indemnification
to which he or she is entitled.
Section
8.14
Right of
Indemnification
Notwithstanding
the failure of the Company or Employing Company, as applicable, to provide
indemnification in the manner set forth in Section 8.11 and 8.12 above, and
despite any contrary resolution of the Board of Directors or of the shareholders
in the specific case, if the member of the Compensation Committee has met the
standard of conduct set forth in Section 8.9 above, the person made or
threatened to be made a party to the action or proceeding or against whom the
claim or demand has been made, shall have the legal right to indemnification
from the Company or Employing Company, as applicable, as a matter of contract by
virtue of this Plan, it being the intention that each such person shall have the
right to enforce such right of indemnification against the Company or Employing
Company, as applicable, in any court of competent jurisdiction.
ARTICLE
IX.
EFFECTIVE
DATE
This Plan
shall be effective (as it may be amended and restated) on and after December 14,
2004.
ARTICLE
X.
MISCELLANEOUS
Section
10.1
Assignment
An
Employee’s right to benefits under this Plan shall not be assigned, transferred,
pledged, encumbered in any way or subject to attachment or garnishment, and any
attempted assignment, transfer, pledge, encumbrance, attachment, garnishment or
other disposition of such benefits shall be null and void and without
effect.
Section
10.2
Governing
Law
The Plan shall be construed and
administered in accordance with ERISA and with the laws of the State Oklahoma,
to the extent such State laws are not preempted by ERISA.
If
any part of the Plan is held by a court of competent jurisdiction to be void or
voidable, such holding shall not apply to render void or voidable the provisions
of the Plan not encompassed in the court’s holding. Where necessary to maintain
the Plan’s validity, a court of competent jurisdiction may modify the terms of
this Plan to the extent necessary to effectuate its purposes as demonstrated by
the terms and conditions stated herein.
Section
10.3
Employing
Company Records
The
records of the Employing Company with regard to any person’s Eligible Employee
status, Beneficiary status, employment history, Years of Service and all other
relevant matters shall be conclusive for purposes of administration of the
Plan.
Section
10.4
Employment
Non-Contractual
This Plan
is not intended to and does not create a contract of employment, express or
implied, and an Employing Company may terminate the employment of any employee
with or without cause as freely and with the same effect as if this Plan did not
exist. Nothing contained in the Plan shall be deemed to qualify, limit or alter
in any manner the Employing Company’s sole and complete authority and discretion
to establish, regulate, determined or modify at all time, the terms and
conditions of employment, including, but not limited to, levels of employment,
hours of work, the extent of hiring and employment termination, when and where
work shall be done, marketing of its products, or any other matter related to
the conduct of its business or the manner in which its business is to be
maintained or carried on, in the same manner and to the same extent as if this
Plan were not in existence.
Section
10.5
Taxe
s
Neither
an Employing
Company
nor
any fiduciary of this Plan shall be liable for any taxes incurred by an Eligible
Employee or Beneficiary for Separation Benefit payments made pursuant to this
Plan.
Section
10.6
Binding
Effect
This Plan
shall be binding on the Company, any Employing Company and their successors and
assigns, and the Employee, Employee’s heirs, executors, administrators and legal
representatives. As used in this Plan, the term “successor” shall include any
person, firm, corporation or other business entity which at any time, whether by
merger, purchase or otherwise, acquires all or substantially all of the assets
or business of the Company or any Employing Company.
Section
10.7
Entire
Agreement
This Plan
constitutes the entire
understanding
between the
parties hereto and may be modified only in accordance with the terms of this
Plan.
Section
10.8
Decisions
and Appeals
10.8.1
Manner
and Content of Benefit Determination
The Human
Resources Director shall provide a Eligible Employee with written or electronic
notification of any adverse benefit determination. The notification
shall set forth, in a manner calculated to be understood by the Eligible
Employee the following:
(a)
the
specific reason(s) for the adverse determination;
(b)
references
to the specific plan provisions upon which the determination is
based;
(c)
a
description of any additional material or information necessary for the Eligible
Employee to perfect the claim and an explanation of why such material or
information is necessary;
(d)
a
description of the Plan’s review procedures and the time limits applicable to
such procedures, including a statement of the Eligible Employee’s right to bring
a civil action under section 502(a) of ERISA following an adverse benefit
determination on review;
(e)
if the
Plan utilizes a specific internal rule, guideline, protocol, or other similar
criterion in making the determination, either the specific rule, guideline,
protocol or other similar criterion; or a statement that such a rule, guideline,
protocol or other similar criterion was relied upon and that a copy of such
rule, guideline, protocol or similar criterion will be provided free of charge
to the Eligible Employee upon request;
10.8.2
Appeal of
Denied Claim and Review Procedure
(a)
If an
Eligible Employee does not agree with the reason for the denial or termination
of Separation Benefits (including a denial or termination of benefits based on a
determination of an Eligible Employee’s eligibility to participate in the Plan),
he/she may file a written appeal within 180 days after the receipt of the
original claim determination. The request
should
state the basis for the disagreement along with any data, questions, or comments
he/she thinks are appropriate, and should be sent to the office of the Human
Resources director.
(b)
The
Compensation Committee shall conduct a full and fair review of the
determination. The review shall not defer to the initial
determination, and it shall take into account all comments, documents, records
and other information submitted by the Eligible Employee without regard to
whether such information was previously submitted or considered in the initial
determination.
10.8.3
Manner
and Content of Notification of Benefit Determination on Review
Within 60
days (or longer if special circumstances require), the Compensation Committee
shall provide an Eligible Employee with written or electronic notification of
any adverse benefit determination on review. The notification shall
set forth, in a manner calculated to be understood by the Eligible Employee the
following:
(a)
the
specific reason(s) for the adverse determination on review;
(b)
reference
to the specific plan provisions upon which the review is based;
(c)
a
statement that the Eligible Employee is entitled to receive, upon request and
free of charge, reasonable access to, and copies of, all documents, records, and
other information relevant to his claim for benefits;
(d)
a
statement describing any voluntary appeal procedures offered by the Plan and the
Eligible Employee’s right to obtain the information about such procedures, and a
statement of the Eligible Employee’s right to bring an action under section
502(a) of ERISA;
(e)
if an
internal rule, guideline, protocol, or other similar criterion was relied upon
in making the adverse determination on review, either the specific rule,
guideline, protocol, or other similar criterion, or a statement that such rule,
guideline, protocol, or other similar criterion was relied upon in making the
adverse determination on review and that a copy of the rule, guideline,
protocol, or other similar criterion will be provided free of charge to the
Eligible Employee upon request;
(f)
the
following statement: “Other voluntary alternative dispute resolution methods,
such as mediation, may be available. You may seek additional
information by contacting your local U.S. Department of Labor office and your
State insurance regulatory agency.”
SEPARATION
AGREEMENT “A”
[Name of
Employing Company] (“Unit”) and (“Employee”) hereby agree as
follows:
Employee’s
employment will end
on ,
20__.
In
consideration for Employee’s agreement to the terms and conditions of this
Separation Agreement (“Agreement”), Unit will pay to Employee a Separation
Benefit of $in accordance with and subject to the terms of the Separation
Benefit Plan of Unit Corporation and Participating Subsidiaries (the
“Plan”).
Employee
knows that state and federal laws, including the Age Discrimination in
Employment Act and Title VII of the Civil Rights Act of 1964, as amended,
prohibit employment discrimination based on age, sex, race, color, national
origin, religion, handicap, disability, or veteran status, and that these laws
are enforced through the United States Equal Employment Opportunity Commission
(“EEOC”), United States Department of Labor, and State Human Rights
Agencies.
EMPLOYEE
IS ADVISED TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT.
EMPLOYEE
HAS TWENTY ONE DAYS AFTER RECEIVING THIS AGREEMENT TO CONSIDER WHETHER TO SIGN
THIS AGREEMENT.
AFTER
SIGNING THIS AGREEMENT, EMPLOYEE HAS ANOTHER SEVEN (7n DAYS IN WHICH TO REVOKE
CONSENT TO THIS AGREEMENT. THIS AGREEMENT DOES NOT TAKE EFFECT UNTIL THOSE SEVEN
DAYS HAVE PASSED.
In
exchange for receipt of the Separation Benefit described above, to which
Employee acknowledges he or she is not otherwise entitled, Employee forever
releases and discharges Unit Corporation and its subsidiaries, their officers,
directors, agents, employees, and affiliates from all claims, liabilities, and
lawsuits arising out of Employee’s employment or the termination of that
employment, and agrees not to assert any such claim, liability or lawsuit.
Employee agrees that this release and discharge includes any claim under the Age
Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964,
as amended, and any claim under other federal, state or local statute or
regulation relating to employment discrimination or employee benefits. Employee
agrees that this release and discharge includes any claim under any other
statute, regulation or common law rule relating to Employee’s employment or
termination of employment. This Agreement does not have any effect with respect
to acts or events occurring after the date upon which Employee signs the
Agreement. This Agreement does not limit any benefits to which Employee is
entitled under any retirement plans, if any.
As
further consideration for the payment of the Separation Benefit described above,
Employee agrees that Employee will not, in any capacity directly or indirectly
and on his or her own behalf or on behalf of any other person or entity, during
the period of time he or she is receiving such Separation Benefits, either (a)
solicit or attempt to induce any current customer of the Company to cease doing
business with the Company or (b) solicit or attempt to induce any
employee
of the Company to sever the employment relationship (collectively, the
“Protection of Business Requirements”).
Except as
provided in the next paragraph, in the event Employee violates the Protection of
Business Requirements hereof, Employee shall not be entitled to any further
payments of Separation Benefits under the Plan or this Agreement and shall be
obligated to repay Unit all Separation Benefit payments previously received
under the Plan and this Agreement.
In the event of a Change in Control of
Unit Corporation (as defined in the Plan), Employee’s obligations regarding the
Protection of Business Requirements under this Agreement shall expire and be
canceled, and Employee shall be entitled to Separation Benefits provided under
the Plan in accordance with
the terms of the Plan, notwithstanding
whether Employee thereafter engages in conduct that would otherwise violate the
Protection of Business Requirements as described in this Agreement.
Employee
has carefully read and fully understands all the provisions of this Agreement.
This is the entire Agreement between the parties and is legally binding and
enforceable. Employee agrees that he or she has not relied upon any
representation or statement, written or oral, not set forth in this Agreement
when signing this Agreement.
This
Agreement shall be governed and interpreted under federal law and the laws of
the State of Oklahoma, notwithstanding such State’s choice of law provisions. If
any part of this Agreement is held by a court of competent jurisdiction to be
void or voidable, such holding shall not apply to render void or voidable the
provisions of this Agreement not encompassed in the court’s holding. Where
necessary to maintain this Agreement’s validity, a court of competent
jurisdiction may modify the terms of this Agreement to the extent necessary to
effectuate its purposes as demonstrated by the terms and conditions stated
herein.
Employee
agrees that he or she has carefully read and fully understands all the provision
of this Agreement. This is the entire Agreement between the parties, and it is
legally binding and enforceable. Employee agrees that he or she has not relied
upon any representation or statement, written or oral, not set forth in this
Agreement when signing this Agreement.
Employee
knowingly and voluntarily signs this Agreement.
|
1.
|
Employee
acknowledges receipt of this Agreement on
this day of ,
20__;
|
________________________(Employee)
|
2.
|
Employee
acknowledges signing and, in signing, consenting to this Agreement on this
______ day of ________________________,
20__;
|
________________________(Employee)
|
3.
|
Employee
acknowledges that the seven (7) day revocation period shall end, and this
agreement shall be effective and enforceable as of theday of,
20__;
|
________________________(Employee)
(Name of
Employing Company)
By: ____________________________
Title:
__________________________
Date:
__________________________
SEPARATION
AGREEMENT “B”
[Name of
Employing Company] (“Unit”) and (“Employee”) hereby agree
as
follows:
Employee’s
employment will end
on ,
20__.
In
consideration for Employee’s agreement to the terms and conditions of this
Separation Agreement (“Agreement”), Unit will pay to Employee a Separation
Benefit of $, in accordance with, and subject to the terms of the Separation
Benefit Plan of Unit Corporation and Participating Subsidiaries (the
“Plan”). Employee agrees to comply with all terms of the
Plan.
Employee
knows that state and federal laws, including the Age Discrimination in
Employment Act and Title VII of the Civil Rights Act of 1964, as amended,
prohibit employment discrimination based upon age, sex, race, color, national
origin, religion, handicap, disability, or veteran status, and that these laws
are enforced through the United States Equal Employment Opportunity Commission
(“EEOC”), United States Department of Labor, State Human Rights Agencies and
courts of competent jurisdiction.
EMPLOYEE
IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT.
EMPLOYEE
HAS FORTY FIVE (45) DAYS AFTER RECEIVING THIS AGREEMENT, AND THE WRITTEN
STATEMENT PROVIDED WITH THIS AGREEMENT, TO CONSIDER WHETHER TO SIGN THIS
AGREEMENT.
AFTER
SIGNING THIS AGREEMENT, EMPLOYEE HAS ANOTHER SEVEN (7) DAYS IN WHICH TO REVOKE
CONSENT TO THIS AGREEMENT. THIS AGREEMENT DOES NOT TAKE EFFECT UNTIL THOSE SEVEN
(‘) DAYS HAVE PASSED.
EMPLOYEE
ACKNOWLEDGES THAT, ALONG WITH THIS AGREEMENT, HE OR SHE HAS BEEN GIVEN A WRITTEN
STATEMENT: (A) WHICH DESCRIBES THE CLASS, UNIT, OR GROUP OF INDIVIDUALS COVERED
BY THE PLAN, ELIGIBILITY FACTORS UNDER THE PLAN, AND ANY TIME LIMITS APPLICABLE
TO THE PLAN; AND (B) THE JOB TITLES AND AGES OF ALL INDIVIDUALS ELIGIBLE OR
SELECTED FOR TERMINATION UNDER THE PLAN WITH THIS EMPLOYEE, AND THE AGES AND JOB
TITLES OF ALL INDIVIDUALS IN THE SAME JOB CLASSIFICATION OR TITLE AS THOSE
EMPLOYEES ELIGIBLE OR SELECTED FOR TERMINATION UNDER THE PLAN WHO ARE NOT
ELIGIBLE OR SELECTED FOR TERMINATION.
In
exchange for receipt of the Separation Benefit described above, to which
Employee acknowledges he or she is not otherwise entitled, Employee forever
releases and discharges Unit Corporation and its subsidiaries, their officers,
directors, agents, employees, and affiliates from all claims, liabilities, and
lawsuits arising out of Employee’s employment or the termination of that
employment, and agrees not to assert any such claim, liability or lawsuit.
Employee agrees that this release and discharge includes any claim under the Age
Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964,
as amended, and any claim under other federal, state or local statute or
regulation relating to employment discrimination or employee benefits. Employee
agrees that this release and discharge includes any claim under any other
statute,
regulation or common law rule relating to Employee’s employment or termination
of employment. This Agreement does not have any effect with respect to acts or
events occurring after the date upon which Employee signs the Agreement. This
Agreement does not limit any benefits to which Employee is entitled under any
retirement plans, if any.
Employee agrees that he or she has
carefully read and fully understands all the provision of this Agreement. This
is the entire Agreement between the parties, and it is legally binding and
enforceable.
Employee agrees that he or she has not relied
upon any representation or statement, written or oral, not set forth in this
Agreement when signing this Agreement.
The Plan
shall be construed and administered in accordance with ERISA and other federal
laws, and with the laws of the State Oklahoma to the extent such State laws are
not preempted by ERISA. If any part of this Agreement is held by a
court of competent jurisdiction to be void or voidable, such holding shall not
apply to render void or voidable the provisions of this Agreement not
encompassed in the court’s holding. Where necessary to maintain this Agreement’s
validity, a court of competent jurisdiction may modify the terms of this
Agreement to the extent necessary to effectuate its purposes as demonstrated by
the terms and conditions stated herein.
Employee
knowingly and voluntarily signs this Agreement.
|
1.
|
Employee
acknowledges receipt of this Agreement on
this day
of , 20__;
|
________________________(Employee)
|
2.
|
Employee
acknowledges signing and, in signing, consenting to this Agreement on this
______ day of ________________________,
20__;
|
________________________(Employee)
|
3.
|
Employee
acknowledges that the seven (7) day revocation period shall end, and this
agreement shall be effective and enforceable as of theday of,
20__;
|
________________________(Employee)
(Name of
Employing Company)
By: ____________________________
Title:
__________________________
Date:
__________________________
B-2