{"id":38496,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/amended-and-restated-change-in-control-agreement-with-walker.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"amended-and-restated-change-in-control-agreement-with-walker","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/amended-and-restated-change-in-control-agreement-with-walker.html","title":{"rendered":"Amended and Restated Change in Control Agreement with Walker – Hess"},"content":{"rendered":"

AMENDED AND RESTATED CHANGE IN CONTROL<\/strong>
\nTERMINATION BENEFITS AGREEMENT<\/strong><\/u><\/p>\n

THIS AMENDED AND RESTATED CHANGE IN CONTROL TERMINATION BENEFITS
\nAGREEMENT (the “Agreement”), dated as of the 29th day of May, 2009, is between
\nHess Corporation<\/strong>, a Delaware corporation (the “Company”), and
\nF. Borden Walker <\/strong>(the “Executive”).
\nWITNESSETH:<\/strong> WHEREAS<\/strong>, the Company and the
\nExecutive are parties to that certain Change in Control Termination Benefits
\nAgreement, dated as of March 6, 2002 (the “Prior Agreement”);
\n WHEREAS<\/strong>, the Company considers it essential to the best
\ninterests of the Company and its stockholders that its management be encouraged
\nto remain with the Company and to continue to devote full attention to the
\nCompany153s business in the event of a transaction or series of transactions that
\ncould result in a change in control of the Company through a tender offer or
\notherwise; WHEREAS<\/strong>, the Company recognizes that the
\npossibility of a change in control and the uncertainty which it may raise among
\nmanagement may result in the departure or distraction of management personnel to
\nthe detriment of the Company and its stockholders;
\n WHEREAS<\/strong>, the Executive is a key executive of the Company;
\n WHEREAS<\/strong>, the Company believes the Executive has made
\nvaluable contributions to the productivity and profitability of the Company;
\n WHEREAS<\/strong>, should the Company receive a proposal for, or
\notherwise consider any such transaction, in addition to the Executive153s regular
\nduties, the Executive may be called upon to assist in the assessment of such
\nproposals, advise management and the Board of Directors of the Company (the
\n“Board”) as to whether a proposed transaction would be in the best interests of
\nthe Company and its stockholders, and to take such other actions as the Board
\nmight determine to be appropriate; WHEREAS<\/strong>, the Board has
\ndetermined that it is in the best interests of the Company and its stockholders
\nto assure that the Company will have the continued services of the Executive,
\nnotwithstanding the possibility, threat or occurrence of a change in control of
\nthe Company and believes that it is imperative to diminish the potential
\ndistraction of the Executive by virtue of the personal uncertainties and risks
\ncreated by a pending or threatened change in control, to assure the Executive153s
\nfull<\/p>\n

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\n<\/p>\n

attention and dedication to the Company in the event of any threatened or
\npending change in control, and to provide the Executive with appropriate
\nseverance arrangements following a change in control;
\n WHEREAS<\/strong>, the Company intends that the Agreement comply
\nwith, or not be subject to, section 409A of the Internal Revenue Code of 1986,
\nas amended (the “Code”), and guidance and regulations issued thereunder, so
\nthat, notwithstanding any other provision of the Agreement, the Agreement shall
\nbe interpreted, operated and administered in a manner consistent with this
\nintention; and WHEREAS<\/strong>, the Company and the Executive
\nmutually desire to make certain revisions to the Prior Agreement consistent with
\nsuch intention. NOW, THEREFORE, <\/strong>(a) to assure the Company
\nthat it will have the continued undivided attention and services of the
\nExecutive and the availability of the Executive153s advice and counsel
\nnotwithstanding the possibility, threat or occurrence of a change in control of
\nthe Company, and to induce the Executive to remain in the employ of the Company
\nand (b) in order that the Agreement comply with, or not be subject to,
\nSection 409A of the Code, and for other good and valuable consideration, the
\nPrior Agreement is hereby amended and restated as of the date first above set
\nforth as follows: 1. Change in Control.<\/u> For purposes of the
\nAgreement, a Change in Control shall be deemed to have taken place if any of the
\nfollowing shall occur: (a) The acquisition by any individual, entity or
\ngroup (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
\nExchange Act of 1934 (the “Exchange Act”)), of beneficial ownership (within the
\nmeaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
\neither the then (i) outstanding shares of Common Stock of the Company (the
\n“Outstanding Company Common Stock”) or (ii) combined voting power of the then
\noutstanding voting securities of the Company entitled to vote generally in the
\nelection of directors (the “Outstanding Voting Securities”) provided<\/u>,
\nhowever<\/u>, that the following acquisitions shall not constitute a Change in
\nControl: (i) any acquisition by the Company or any of its subsidiaries, (ii) any
\nacquisition by an employee benefit plan (or related trust) sponsored or
\nmaintained by the Company or any of its subsidiaries, (iii) any acquisition by
\nany company with respect to which, following such acquisition, more than 60% of,
\nrespectively, the then outstanding shares of common stock of such company and
\nthe combined voting power of the then outstanding voting securities of such
\ncompany entitled to vote generally in the election of directors is then
\nbeneficially owned, directly or indirectly, by all or substantially all of the
\nindividuals and entities who were the beneficial owners, respectively, of the
\nOutstanding Company Common Stock and Outstanding Voting Securities immediately
\nprior to such acquisition in substantially the same proportions as their
\nownership, immediately prior to such acquisition, of the Outstanding Company
\nCommon Stock and Outstanding Voting<\/p>\n

2<\/p>\n

\n<\/p>\n

Securities, as the case may be, or (iv) any acquisition by one or more Hess
\nEntity (for this purpose a “Hess Entity” means (A) Mr. John Hess or any of his
\nchildren, parents or siblings, (B) any spouse of any person described in Section
\n(A) above, (C) any trust with respect to which any of the persons described in
\n(A) has substantial voting authority (D) any affiliate (as such term is defined
\nin Rule 12b-2 under the Exchange Act) of any person described in (A) above,
\n(E) the Hess Foundation Inc., or (F) any persons comprising a group controlled
\n(as such term is defined in such Rule 12b-2) by one or more of the foregoing
\npersons or entities described in this Section 1(a)(iv)); or (b) Within any
\n24 month period, individuals who, immediately prior to the beginning of such
\nperiod, constitute the Board (the “Incumbent Board”) cease for any reason to
\nconstitute at least a majority of the Board; provided,<\/u> however,<\/u>
\nthat any individual becoming a director during such period whose election, or
\nnomination for election by the Company153s stockholders, was approved by a vote of
\nat least a majority of the directors then comprising the Incumbent Board shall
\nbe considered as though such individual were a member of the Incumbent Board,
\nbut excluding, for this purpose, any such individual whose initial assumption of
\noffice occurs as a result of either an actual or threatened solicitation to
\nwhich Rule 14a-ll of Regulation 14A promulgated under the Exchange Act applies
\nor other actual or threatened solicitation of proxies or consents; or
\n (c) Consummation of a reorganization, merger or consolidation, in each
\ncase, with respect to which all or substantially all of the individuals and
\nentities who were the beneficial owners, respectively, of the Outstanding
\nCompany Common Stock and Outstanding Voting Securities immediately prior to such
\nreorganization, merger or consolidation do not, following such reorganization,
\nmerger or consolidation, beneficially own, directly or indirectly, more than 60%
\nof, respectively, the then outstanding shares of common stock and the combined
\nvoting power of the then outstanding voting securities entitled to vote
\ngenerally in the election of directors, as the case may be, of the company
\nresulting from such reorganization, merger or consolidation in substantially the
\nsame proportions as their ownership, immediately prior to such reorganization,
\nmerger or consolidation, of the Outstanding Company Common Stock and Outstanding
\nVoting Securities, as the case may be; or (d) Consummation of (i) a
\ncomplete liquidation or dissolution of the Company or (ii) the sale or other
\ndisposition of all or substantially all of the assets of the Company, other than
\nto a company, with respect to which following such sale or other disposition,
\nmore than 60% of, respectively, the then outstanding shares of common stock of
\nsuch company and the combined voting power of the then outstanding voting
\nsecurities of such company entitled to vote generally in the election of
\ndirectors is then beneficially owned, directly or indirectly, by all or
\nsubstantially all of the individuals and entities who were the beneficial
\nowners, respectively, of the Outstanding Company Common Stock and Outstanding
\nVoting Securities immediately prior to such sale or other disposition in
\nsubstantially the same proportion as their ownership, immediately prior to such
\nsale or other disposition, of the Outstanding Company Common Stock and
\nOutstanding Voting Securities, as the case may be. The term “the sale or other
\ndisposition of all or<\/p>\n

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\n<\/p>\n

substantially all of the assets of the Company” shall mean a sale or other
\ndisposition in a transaction or series of related transactions involving assets
\nof the Company or of any direct or indirect subsidiary of the Company (including
\nthe stock of any direct or indirect subsidiary of the Company) in which the
\nvalue of the assets or stock being sold or otherwise disposed of (as measured by
\nthe purchase price being paid therefor or by such other method as the Board
\ndetermines is appropriate in a case where there is no readily ascertainable
\npurchase price) constitutes more than two-thirds of the fair market value of the
\nCompany (as hereinafter defined). The “fair market value of the Company” shall
\nbe the aggregate market value of the then Outstanding Company Common Stock (on a
\nfully diluted basis) plus the aggregate market value of the Company153s other
\noutstanding equity securities. The aggregate market value of the shares of
\nOutstanding Company Common Stock shall be determined by multiplying the number
\nof shares of such Common Stock (on a fully diluted basis) outstanding on the
\ndate of the execution and delivery of a definitive agreement with respect to the
\ntransaction or series of related transactions (the “Transaction Date”) by the
\naverage closing price of the shares of Outstanding Company Common Stock for the
\nten trading days immediately preceding the Transaction Date. The aggregate
\nmarket value of any other equity securities of the Company shall be determined
\nin a manner similar to that prescribed in the immediately preceding sentence for
\ndetermining the aggregate market value of the shares of Outstanding Company
\nCommon Stock or by such other method as the Board shall determine is
\nappropriate. 2. Circumstances Triggering Receipt of Termination
\nBenefits.<\/u> (a) Subject to Section 2(c), the Company will provide the
\nExecutive with the benefits set forth in Section 4 upon the Executive153s
\nSeparation from Service that is initiated: (i) by the Company at any time
\nwithin the first 24 months after a Change in Control; (ii) by the Executive
\nfor “Good Reason” (as defined in Section 2(b) below) at any time within the
\nfirst 24 months after a Change in Control; or (iii) by the Company or the
\nExecutive pursuant to Section 2(d). For purposes of this Agreement, the
\nterm “Separation from Service” or “Separate(s\/d) from Service” means a
\n“separation from service” within the meaning of Code section 409A and Treasury
\nRegulations thereunder. (b) In the event of a Change in Control, the
\nExecutive may Separate from Service for “Good Reason” and receive the payments
\nand benefits set forth in Section 4 upon the occurrence of one or more of the
\nfollowing events (regardless of whether any other reason, other than Cause as
\nprovided below, for such Separation from Service exists or has occurred):<\/p>\n

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\n<\/p>\n

(i) Failure to elect or reelect or otherwise to maintain the Executive
\nin the office or the position, or at least a substantially equivalent office or
\nposition, of or with the Company (or any successor thereto), which the Executive
\nheld immediately prior to a Change in Control, or the removal of the Executive
\nas a director of the Company (or any successor thereto), if the Executive shall
\nhave been a director of the Company immediately prior to the Change in Control;
\n (ii) (A) Any material adverse change in the nature or scope of the
\nExecutive153s authorities, powers, functions, responsibilities or duties from
\nthose in effect immediately prior to the Change in Control, (B) a reduction in
\nthe Executive153s annual base salary rate, (C) a reduction in the Executive153s
\nannual incentive compensation target or any material reduction in the
\nExecutive153s other bonus opportunities, or (D) the termination or denial of the
\nExecutive153s ability to participate in Employee Benefits (as defined in
\nSection 4(b)) or retirement benefits (as described in Section 4(c)) or a
\nmaterial reduction in the scope or value thereof, any of which is not remedied
\nby the Company within 10 days after receipt by the Company of written notice
\nfrom the Executive of such change, reduction or termination, as the case may be;
\n (iii) The liquidation, dissolution, merger, consolidation or reorganization
\nof the Company or transfer of all or substantially all of its businesses and\/or
\nassets, unless the successor or successors (by liquidation, merger,
\nconsolidation, reorganization, transfer or otherwise) to which all or
\nsubstantially all of its businesses and\/or assets have been transferred
\n(directly or by operation of law) assumed all duties and obligations of the
\nCompany under this Agreement pursuant to Section 9(a); (iv) The Company
\nrequires the Executive to change the Executive153s principal location of work to a
\nlocation that is in excess of 30 miles from the location thereof immediately
\nprior to the Change in Control, or requires the Executive to travel in the
\ncourse of discharging the Executive153s responsibilities or duties at least 20%
\nmore (in terms of aggregate days in any calendar year or in any calendar quarter
\nwhen annualized for purposes of comparison to any prior year) than was required
\nof the Executive in any of the three full years immediately prior to the Change
\nin Control without, in either case, the Executive153s prior written consent;
\n (v) Without limiting the generality or effect of the foregoing, any
\nmaterial breach of this Agreement by the Company or any successor thereto, which
\nbreach is not remedied within 10 days after written notice to the Company from
\nthe Executive describing the nature of such breach. (c) Notwithstanding
\nSections 2(a) and (b) above, no benefits shall be payable by reason of this
\nAgreement in the event of:<\/p>\n

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\n<\/p>\n

(i) The Executive153s Separation from Service by reason of the Executive153s
\ndeath or Disability, unless the Executive has previously given a valid “Notice
\nof Termination” pursuant to Section 3. For purposes hereof, “Disability” shall
\nbe defined as the inability of the Executive due to illness, accident or other
\nphysical or mental disability to perform the Executive153s duties for any period
\nof six consecutive months or for any period of eight months out of any 12-month
\nperiod, as determined by an independent physician selected by the Executive (or
\nthe Executive153s legal representative) and reasonably acceptable to the Company,
\nprovided that the Executive does not return to work on substantially a full-time
\nbasis within 30 days after written notice from the Company, pursuant to
\nSection 3, of the intent to terminate the Executive153s employment due to
\nDisability; (ii) The Executive153s retirement on or after Normal Retirement
\nDate pursuant to the Company153s Employees153 Pension Plan; provided, however, that
\nif the Executive Separates from Service for Good Reason at such time of
\nretirement, the Executive153s retirement shall be treated hereunder as a
\nSeparation from Service for Good Reason and the Executive shall be entitled to
\nthe benefits provided in Section 4 hereof; (iii) The Executive153s Separation
\nfrom Service for Cause. For the purposes hereof, “Cause” shall be defined as
\n(A) a felony conviction of the Executive or the failure of the Executive to
\ncontest prosecution for a felony, (B) the Executive153s gross and willful
\nmisconduct in connection with the performance of the Executive153s duties with the
\nCompany and\/or its subsidiaries or (C) the willful and continued failure of the
\nExecutive to substantially perform the Executive153s duties with the Company (or
\nany successor thereto) after a written demand from the Company153s internal
\nExecutive Committee, any successor or similar internal management committee or,
\nabsent any such committee, its Chief Executive Officer (such committee, or the
\nChief Executive Officer, being the “Notifying Party”) for substantial
\nperformance which specifically identifies the manner in which the Notifying
\nParty believes that the Executive has not performed the Executive153s duties with
\nthe Company, any of which is directly and materially harmful to the business or
\nreputation of the Company or any subsidiary or affiliate. Notwithstanding the
\nforegoing, the Executive shall not be deemed to have Separated from Service for
\n“Cause” hereunder unless and until the Executive shall have been afforded, after
\nreasonable notice, an opportunity to appear, together with counsel (if the
\nExecutive chooses to have counsel present), before the Notifying Party, if the
\nNotifying Party is a committee, or in the event that the Notifying Party is the
\nChief Executive Officer, the three most highly compensated senior executive
\nofficers of the Company, not including the Chief Executive Officer (such
\nNotifying Party or the three senior executive officers, as the case may be,
\nbeing the “Hearing Party”), and after such hearing there shall have been
\ndelivered to the Executive a written determination by the Hearing Party that, in
\nthe good faith opinion of the Hearing Party the Executive shall have been
\nSeparated from Service for “Cause” as herein defined and specifying the<\/p>\n

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\n<\/p>\n

particulars thereof in detail. Nothing herein will limit the right of the
\nExecutive or the Executive153s beneficiaries to contest the validity or propriety
\nof any such determination. This Section 2(c) shall not preclude the payment of
\nany amounts otherwise payable to the Executive under any of the Company153s
\nemployee benefit plans, pension plans, stock plans, programs and arrangements.
\n (d) A Separation from Service initiated by the Company without Cause or by
\nthe Executive for an event that would constitute Good Reason following a Change
\nin Control that occurs, in either event, prior to a Change in Control, but
\noccurs (i) not more than 180 days prior to the date on which a Change in Control
\noccurs and (ii) (x) at the request of a third party who has indicated an
\nintention or taken steps reasonably calculated to effect a Change in Control or
\n(y) otherwise arose in connection with, or in anticipation of, a Change in
\nControl, shall be deemed to be a Separation from Service without Cause within
\nthe first 24 months after a Change in Control for purposes of this Agreement and
\nthe date of such Change in Control shall be deemed to be the date immediately
\npreceding the date the Executive153s Separation from Service. 3. Notice of
\nTermination.<\/u> Any Separation from Service as contemplated by Section 2
\nshall be communicated by written “Notice of Separation” to the other party
\nhereto. Any “Notice of Separation” shall (i) indicate the effective date of the
\nSeparation from Service, which shall not be less than 30 days or more than
\n60 days after the date the Notice of Separation is delivered (the “Separation
\nDate”), (ii) cite the specific provision in this Agreement relied upon, and
\n(iii) except for a Separation from Service pursuant to Section 2(d), shall set
\nforth in reasonable detail the facts and circumstances claimed to provide a
\nbasis for such Separation from Service including, if applicable, the failure by
\nthe Company, after provision of written notice by the Executive, to effect a
\nremedy pursuant to the final clause of Section 2(b)(ii) or 2(b)(v).
\n 4. Benefits upon Separation from Service.<\/u> Subject to the conditions
\nset forth in Section 2, the following benefits shall be paid or provided to the
\nExecutive: (a) Compensation.<\/u> The Company shall pay to the
\nExecutive three times the sum of (i) “Base Pay”, which shall be an amount equal
\nto the greater of (A) the Executive153s rate of annual base salary (prior to any
\ndeferrals) on the date of the Executive153s Separation from Service, or (B) the
\nExecutive153s rate of annual base salary (prior to any deferrals) immediately
\nprior to the Change in Control, plus (ii) “Incentive Pay”, which shall be an
\namount equal to the greater of (X) the target annual bonus payable to the
\nExecutive under the Company153s incentive compensation plan or any other annual
\nbonus plan for the fiscal year of the Company in which the Change in Control
\noccurred or (Y) the highest annual bonus<\/p>\n

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\n<\/p>\n

earned by the Executive under the Company153s incentive compensation plan or
\nany other annual bonus plan (whether paid currently or on a deferred basis)
\nduring the three fiscal years of the Company immediately preceding the fiscal
\nyear of the Company in which the Change in Control occurred. In addition, the
\nExecutive shall receive a pro rata portion of the target bonus for the fiscal
\nyear in which the Executive153s termination of employment occurs. The amount
\npayable under Section 4(a) shall be paid to the Executive in a lump sum payment
\nby the 60th<\/sup> day following the date of the Executive153s Separation from
\nService. Notwithstanding the foregoing, payment of such amounts may not be made
\nto a Key Employee (as defined in Section 4(g)) upon a Separation from Service
\nbefore the date which is six months after the date of the Key Employee153s
\nSeparation from Service (or, if earlier, the date of death of the Key Employee).
\nAny payments that would otherwise be made during this period of delay shall be
\naccumulated and paid on the first day of the seventh month following the date of
\nthe Executive153s Separation from Service (or, if earlier, the first day of the
\nmonth after the Participant153s death). In the event payment of the amount
\npayable under Section 4(a) is delayed for six months pursuant to the immediately
\npreceding paragraph, the Company shall as soon as administratively practicable
\nfollowing the date of the Executive153s Separation from Service (i) establish an
\nirrevocable grantor trust of which the Company is the grantor, and a bank or
\ntrust company reasonably acceptable to the Executive is the trustee (the
\n“Grantor Trust”), and (ii) contribute to the Grantor Trust the full such amount
\npayable under Section 4(a). The Grantor Trust shall be a “rabbi trust,” the
\nassets of which shall be used solely for the purpose of satisfying the Company153s
\nobligations under Section 4(a) of this Agreement; provided<\/em>,
\nhowever<\/em>, that such assets shall be subject to the claims of the
\nCompany153s general creditors in the event of the Company153s bankruptcy (or similar
\ninsolvency proceeding), and the Grantor Trust shall not cause any amount payable
\nunder this Agreement to be funded for tax purposes. (b) Welfare
\nBenefits.<\/u> For a period of 36 months following the date of the
\nExecutive153s Separation from Service (the “Continuation Period”), the Company
\nshall arrange to provide the Executive with benefits (the “Employee Benefits”),
\nincluding travel accident, major medical, dental care and other welfare benefit
\nprograms, substantially similar to those in effect immediately prior to the
\nChange in Control, or, if greater, to those that the Executive was receiving or
\nentitled to receive immediately prior to the date of the Executive153s Separation
\nfrom Service (or, if greater, immediately prior to the reduction, termination,
\nor denial described in Section 2(b)(ii)(D)). If and to the extent that any
\nbenefit described in this Section 4(b) is not or cannot be paid or provided
\nunder any policy, plan, program or arrangement of the Company or any subsidiary,
\nas the case may be, then the Company will itself pay or provide for the payment
\nto the Executive, the Executive153s dependents and beneficiaries of such Employee
\nBenefits along with, in the case of any benefit which is subject to tax because
\nit is not or cannot be paid or provided under any such policy,<\/p>\n

8<\/p>\n

\n<\/p>\n

plan, program or arrangement of the Company or any subsidiary, an additional
\namount such that after payment by the Executive, or the Executive153s dependents
\nor beneficiaries, as the case may be, of all taxes so imposed, the recipient
\nretains an amount equal to such taxes. Employee Benefits otherwise receivable by
\nthe Executive pursuant to this Section 4(b) will be reduced to the extent
\ncomparable welfare benefits are actually received by the Executive from another
\nemployer during the Continuation Period, and any such benefits actually received
\nby the Executive shall be reported by the Executive to the Company. In addition,
\nthe Executive shall receive additional age and service credit for the
\nContinuation Period for purposes of the Executive153s eligibility to receive any
\nretiree medical benefits. To the extent the continuation of the Employee
\nBenefits under this Section 4(b) is, or ever becomes, taxable to the Executive
\nand to the extent the Employee Benefits that are medical benefits continue
\nbeyond the period in which the Executive would be entitled (or would, but for
\nthis Agreement, be entitled) to continuation coverage under a group health plan
\nof the Company under Code section 4980B (COBRA) if the Executive elected such
\ncoverage and paid the applicable premiums, the Company shall administer such
\ncontinuation of coverage consistent with the following additional requirements
\nas set forth in Treas. Reg. \u00a7 1.409A-3(i)(1)(iv): (i) The Executive153s
\neligibility for Employee Benefits in one year shall not affect the Executive153s
\neligibility for Employee Benefits in any other year; (ii) Any reimbursement
\nof eligible expenses will be made on or before the last day of the year
\nfollowing the year in which the expense was incurred; and (iii) Executive153s
\nright to Employee Benefits shall not be subject to liquidation or exchange for
\nanother benefit. In the event the preceding sentence applies and the Executive
\nis a Key Employee (as defined in Section 4(g)), provision of Employee Benefits
\nafter the COBRA period shall commence on the first day of the seventh month
\nfollowing the date of the Executive153s Separation from Service (or, if earlier,
\nthe first day of the month after the Executive153s death). (c) Retirement
\nBenefits.<\/u> The Executive shall be deemed to be completely vested in the
\nExecutive153s currently accrued benefits under the Company153s Employees153 Pension
\nPlan and the Company153s Pension Restoration Plan or other supplemental pension
\nplan (“SERP”) in effect as of the date of the Change in Control (collectively,
\nthe “Plans”), regardless of the Executive153s actual vesting service credit
\nthereunder. In addition, the Executive shall be deemed to earn age and service
\ncredit for benefit calculation purposes thereunder for the Continuation Period.
\nThe additional retirement benefits to be paid pursuant to the Plans shall be
\ncalculated as though the Executive153s compensation rate for the years during the\n<\/p>\n

9<\/p>\n

\n<\/p>\n

Continuation Period equaled the sum of Base Pay plus Incentive Pay. Any
\nbenefits payable pursuant to this Section 4(c) that are not payable out of the
\nPlans for any reason (including but not limited to any applicable benefit
\nlimitations under the Employee Retirement Income Security Act of 1974, as
\namended, or any restrictions relating to the qualification of the Company153s
\nEmployees153 Pension Plan under Section 401(a) of the Internal Revenue Code of
\n1986, as amended (the “Code”)) shall be paid directly by the Company out of its
\ngeneral assets at the time and form in which such benefits would have been
\npayable under the applicable Plan. (d) Stock Based Compensation
\nPlans.<\/u> (i) Any issued and outstanding stock options shall vest and
\nbecome exercisable on the date of the Executive153s Separation from Service (to
\nthe extent they have not already become vested and exercisable) and any other
\nstock-based awards under any compensation plan or program maintained by the
\nCompany (including, without limitation, awards of restricted stock and book
\nvalue appreciation units) and the Executive153s rights thereunder shall vest on
\nthe date of the Executive153s Separation from Service (to the extent they have not
\nalready vested) and any performance criteria under any such compensation plan or
\nprogram shall be deemed met at target as of the date of the Executive153s
\nSeparation from Service . (ii) If and to the extent that any benefit or
\nentitlement (or portion thereof) described in paragraph (i) above is not able to
\nbe implemented by the Company under the then applicable terms of any plan,
\nprogram or award agreement applicable to the Executive, to the extent permitted
\nby Code section 409A, the Company shall pay to the Executive cash and\/or other
\nproperty (including, without limitation, common stock of the Company or any
\nsuccessor thereto) with a value, as determined by the Board, equal to the value
\nof any such option, award or other entitlement (or portion thereof) that the
\nExecutive was not able to receive under paragraph (i) above, such payment shall
\nbe made upon the date provided in Section 4(a) following the Executive153s
\nSeparation from Service and such payment shall be in full satisfaction of the
\noption, award or other entitlement (or portion thereof) to which such payment
\nrelates. (e) Defined Contribution Deferred Compensation Plans.<\/u>
\n The Company shall pay to the Executive all other amounts of tax-qualified
\nand nonqualified deferred compensation accrued or earned by the Executive
\nthrough the date of the Executive153s Separation from Service, and amounts
\notherwise owing under the then existing plans and policies of the Company, other
\nthan those amounts described in Section 4(c), including but not limited to, all
\namounts of compensation previously deferred by the Executive (together with any
\naccrued interest or other earnings thereon) and not yet paid by the Company,
\nunder the terms and conditions and time and form of payment of the underlying
\napplicable arrangements, plans or policies of the Company.<\/p>\n

10<\/p>\n

\n<\/p>\n

(f) Outplacement Services.<\/u> If so requested by the Executive,
\nreasonable outplacement services shall be provided to the Executive by a
\nprofessional outplacement firm or provider selected by the Executive that is
\nreasonably acceptable to the Company at a cost to the Company not in excess of
\n$30,000; provided, however, that such reasonable outplacement expenses must be
\nincurred on or before the last day of the second year following, and payment of
\nsuch expenses is actually made before the last day of the second year following,
\nthe year in which the Executive153s Separation from Service occurred.
\n (g) Key Employee.<\/u> For purposes of this Section 4, the term “Key
\nEmployee” means an employee treated as a “specified employee” as of his
\nSeparation from Service under Code section 409A(a)(2)(B)(i), i.e.<\/u>, a key
\nemployee (as defined in Code section 416(i) without regard to paragraph (5)
\nthereof) of the Company or its affiliates if the Company153s or its affiliate153s
\nstock is publicly traded on an established securities market or otherwise. Key
\nEmployees shall be determined in accordance with Code section 409A using a
\nDecember 31 identification date. A listing of Key Employees as of an
\nidentification date shall be effective for the 12-month period beginning on the
\nApril 1 following the identification date. 5. Certain Additional
\nPayments by the Company.<\/u> (a) Anything in this Agreement to the contrary
\nnotwithstanding, in the event that it shall be determined (as hereafter
\nprovided) that any payment (other than the Gross-Up payments provided for in
\nthis Section 5) or benefit provided by the Company or any of its subsidiaries to
\nor for the benefit of the Executive, whether paid or payable or provided
\npursuant to the terms of this Agreement or otherwise pursuant to or by reason of
\nany other agreement, policy, plan, program or arrangement, including without
\nlimitation any stock option, stock appreciation right or similar right,
\nrestricted stock, deferred stock or the lapse or termination of any restriction
\non, deferral period for, or the vesting or exercisability of any of the
\nforegoing (a “Payment”), would be subject to the excise tax imposed by
\nSection 4999 of the Code (or any successor provision thereto) by reason of being
\nconsidered “contingent on a change in ownership or control” of the Company,
\nwithin the meaning of Section 280G of the Code (or any successor provision
\nthereto) or to any similar tax imposed by state or local law, or any interest or
\npenalties with respect to any such tax (such tax or taxes, together with any
\nsuch interest and penalties, being hereafter collectively referred to as the
\n“Excise Tax”), then the Executive shall be entitled to receive an additional
\npayment or payments (collectively, a “Gross-Up Payment”). The Gross-Up Payment
\nshall be in an amount such that, after payment by the Executive of all taxes
\n(including any interest or penalties imposed with respect to such taxes),
\nincluding any Excise Tax and any income tax imposed upon the Gross-Up Payment,
\nthe Executive<\/p>\n

11<\/p>\n

\n<\/p>\n

retains an amount of Gross-Up Payment equal to the Excise Tax imposed upon
\nthe Payment. (b) Subject to the provisions of Section 5(t), all
\ndeterminations required to be made under this Section 5, including whether an
\nExcise Tax is payable by the Executive and the amount of such Excise Tax and
\nwhether a Gross-Up Payment is required to be paid by the Company to the
\nExecutive and the amount of such Gross-Up Payment, if any, shall be made by the
\nCompany153s outside auditors immediately prior to the Change in Control (the
\n“Accounting Firm”). The Executive shall direct the Accounting Firm to submit its
\ndetermination and detailed supporting calculations to both the Company and the
\nExecutive within 30 days after the Change in Control Date, the date of the
\nExecutive153s Separation from Service, if applicable, and any such other time or
\ntimes as may be requested by the Company or the Executive. If the Accounting
\nFirm determines that any Excise Tax is payable by the Executive, the Company
\nshall pay the required Gross-Up Payment to the Executive within five business
\ndays after receipt of such determination and calculations with respect to any
\nPayment to the Executive. If the Accounting Firm determines that no Excise Tax
\nis payable by the Executive, it shall, at the same time as it makes such.
\ndetermination, furnish the Company and the Executive an opinion that the
\nExecutive has substantial authority not to report any Excise Tax on the
\nExecutive153s federal, state or local income or other tax return. As a result of
\nthe uncertainty in the application of Section 4999 of the Code (or any successor
\nprovision thereto) and the possibility of similar uncertainty regarding
\napplicable state or local tax law at the time of any determination by the
\nAccounting Firm hereunder, it is possible that a Gross-Up Payment which will not
\nhave been made by the Company should have been made (an “Underpayment153),
\nconsistent with the calculations required to be made hereunder. In the event
\nthat the Company exhausts or fails to pursue its remedies pursuant to Section
\n5(t) and the Executive thereafter is required to make a payment of any Excise
\nTax, the Executive shall direct the Accounting Firm to determine the amount of
\nthe Underpayment that has occurred and to submit its determination and detailed
\nsupporting calculations to both the Company and the Executive as promptly as
\npossible. Any such Underpayment shall be promptly paid by the Company to, or for
\nthe benefit of, the Executive within five business days after receipt of such
\ndetermination and calculations. (c) The Company and the Executive shall
\neach provide the Accounting Firm access to and copies of any books, records and
\ndocuments in the possession of the Company or the Executive, as the case may be,
\nreasonably requested by the Accounting Firm, and otherwise cooperate with the
\nAccounting Firm in connection with the preparation and issuance of the
\ndeterminations and calculations contemplated by Section 5(b). Any determination
\nby the Accounting Firm as to the amount of the Gross-Up Payment shall be binding
\nupon the Company and the Executive. (d) The federal, state and local income
\nor other tax returns filed by the Executive shall be prepared and filed on a
\nconsistent basis with the determination of the Accounting Firm with respect to
\nthe Excise Tax payable by the Executive. The Executive shall make proper payment
\nof the amount of any Excise Tax, and at the request of the Company,<\/p>\n

12<\/p>\n

\n<\/p>\n

provide to the Company true and correct copies (with any amendments) of the
\nExecutive153s federal income tax return as filed with the Internal Revenue Service
\nand corresponding state and local tax returns, if relevant, as filed with the
\napplicable taxing authority, and such other documents reasonably requested by
\nthe Company, evidencing such payment. If prior to the filing of the Executive153s
\nfederal income tax return, or corresponding state or local tax return, if
\nrelevant, the Accounting Firm determines that the amount of the Gross-Up Payment
\nshould be reduced, the Executive shall, within five business days, pay to the
\nCompany the amount of such reduction. (e) The fees and expenses of the
\nAccounting Firm for its services in connection with the determinations and
\ncalculations contemplated by Section 5(b) shall be borne by the Company. If such
\nfees and expenses are initially paid by the Executive, the Company shall
\nreimburse the Executive the full amount of such fees and expenses within five
\nbusiness days after receipt from the Executive of a statement therefor and
\nreasonable evidence of payment thereof. (f) The Executive shall notify the
\nCompany in writing of any claim, by the Internal Revenue Service or any other
\ntaxing authority that, if successful, would require the payment by the Company
\nof a Gross-Up Payment or any additional Gross-Up Payment. Such notification
\nshall be given as promptly as practicable but no later than 10 business days
\nafter the Executive actually receives notice of such claim, and the Executive
\nshall further apprise the Company of the nature of such claim and the date on
\nwhich such claim is requested to be paid (in each case, to the extent known by
\nthe Executive). The Executive shall not pay such claim prior to the earlier of
\n(x) the expiration of the 30-day period following the date on which the
\nExecutive gives such notice to the Company and (y) the date that any payment
\nwith respect to such claim is due. If the Company notifies the Executive in
\nwriting prior to the expiration of such period that it desires to contest such
\nclaim, the Executive shall: (i) provide the Company with any written records or
\ndocuments in the Executive153s possession relating to such claim reasonably
\nrequested by the Company; (ii) take such action in connection with contesting
\nsuch claim as the Company shall reasonably request in writing from time to time,
\nincluding without limitation accepting legal representation with respect to such
\nclaim by an attorney competent in respect of the subject matter and reasonably
\nselected by the Company; (iii) cooperate with the Company in good faith in order
\neffectively to contest such claim; and (iv) permit the Company to participate in
\nany proceedings relating to such claim;<\/p>\n

13<\/p>\n

\n<\/p>\n

provided<\/u><\/p>\n

, however<\/u>, that the Company shall bear and pay directly all costs and
\nexpenses (including interest and penalties) incurred in connection with such
\ncontest and shall indemnify and hold harmless the Executive, on an after-tax
\nbasis, for and against any Excise Tax or income tax including interest and
\npenalties with respect thereto, imposed as a result of such contest and payment
\nof costs and expenses. Without limiting the foregoing provisions of this
\nSection 5(t), the Company shall control all proceedings taken in connection with
\nthe contest of any claim contemplated by this Section 5(t) and, at its sole
\noption, may pursue or forego any and all administrative appeals, proceedings,
\nhearings and conferences with the taxing authority in respect of such claim
\n(provided<\/u>, however<\/u>, that the Executive may participate therein at
\nthe Executive153s own cost and expense) and may, at its option, either direct the
\nExecutive to pay the tax claimed and sue for a refund or contest the claim in
\nany permissible manner, and the Executive agrees to prosecute such contest to a
\ndetermination before any administrative tribunal, in a court of initial
\njurisdiction and in one or more appellate courts, as the Company shall
\ndetermine; provided<\/u>, however<\/u>, that if the Company directs the
\nExecutive to pay the tax claimed and sue for a refund, the Company shall advance
\nthe amount of such payment to the Executive on an interest-free basis and shall
\nindemnify and hold the Executive harmless, on an after-tax basis, from any
\nExcise Tax or income or other tax, including interest or penalties with respect
\nthereto, imposed with respect to such advance; and provided<\/u>
\nfurther<\/u>, that any extension of the statute of limitations relating to
\npayment of taxes for the taxable year of the Executive with respect to which the
\ncontested amount is claimed to be due is limited solely to such contested
\namount. Furthermore, the Company153s control of any such contested claim shall be
\nlimited to issues with respect to which a Gross-Up Payment would be payable
\nhereunder and the Executive shall be entitled to settle or contest, as the case
\nmay be, any other issue raised by the Internal Revenue Service or any other
\ntaxing authority. (g) If, after the receipt by the Executive of an amount
\nadvanced by the Company pursuant to Section 5(t), the Executive receives any
\nrefund with respect to such claim, the Executive shall (subject to the Company153s
\ncomplying with the requirements of Section 5(t)) promptly pay to the Company the
\namount of such refund (together with any interest paid or credited thereon after
\nany taxes applicable thereto). If, after the receipt by the Executive of an
\namount advanced by the Company pursuant to Section 5(t), a determination is made
\nthat the Executive shall not be entitled to any refund with respect to such
\nclaim and the Company does not notify the Executive in writing of its intent to
\ncontest such denial or refund prior to the expiration of 30 days after such
\ndetermination, then such advance shall be forgiven and shall not be required to
\nbe repaid and the amount of any such advance shall offset, to the extent
\nthereof, the amount of any Gross-Up Payment required to be paid by the Company
\nto the Executive pursuant to this Section 5. (h) Notwithstanding
\nanything in this Section 5 to the contrary, any payment made to or on behalf of
\nthe Executive under this Section 5 shall be made in compliance with Code section
\n409A and by the later of (i) the end of the year following the year that the
\nrelated taxes are remitted to the applicable taxing authority, (ii) the end of
\nthe year following the year in which any taxes that are the subject of an audit
\nor<\/p>\n

14<\/p>\n

\n<\/p>\n

litigation are remitted to the taxing authority, and (iii) where as a result
\nof such audit or litigation no taxes are remitted, the end of the year following
\nthe year in which the audit is completed or there is a final and non-appealable
\nsettlement or other resolution of the litigation. 6. No Mitigation
\nObligation; Obligations Absolute<\/u>. The payment of the severance
\ncompensation by the Company to the Executive in accordance with the terms of
\nthis Agreement is hereby acknowledged by the Company to be reasonable, and the
\nExecutive will not be required to mitigate the amount of any payment or other
\nbenefit provided in this Agreement by seeking other employment or otherwise, nor
\nwill any profits, income, earnings or other benefits from any source whatsoever
\ncreate any mitigation, offset, reduction or any other obligation on the part of
\nthe Executive hereunder or otherwise, except as expressly provided in the second
\nto last sentence of Section 4(b). The obligations of the Company to make the
\npayments and provide the benefits provided herein to the Executive are absolute
\nand unconditional and may not be reduced under any circumstances, including
\nwithout limitation any set-off, counterclaim, recoupment, defense or other right
\nwhich the Company may have against the Executive or any third party at any time.
\n 7. Legal Fees and Expenses.<\/u> It is the intent of the Company
\nthat the Executive not be required to incur legal fees and the related expenses
\nassociated with the interpretation, enforcement or defense of the Executive153s
\nrights under this Agreement by litigation or otherwise because the cost and
\nexpense thereof would substantially detract from the benefits intended to be
\nextended to the Executive hereunder. Accordingly, if, following a Change in
\nControl, it should appear to the Executive that the Company has failed to comply
\nwith any of its obligations under this Agreement or in the event that the
\nCompany or any other person takes or threatens to take any action to declare
\nthis Agreement void or unenforceable, or institutes any litigation or other
\naction or proceeding designed to deny, or to recover from, the Executive any or
\nall of the benefits provided or intended to be provided to the Executive
\nhereunder, the Company irrevocably authorizes the Executive from time to time to
\nretain counsel of the Executive153s choice, at the expense of the Company as
\nhereafter provided, to advise and represent the Executive in connection with any
\nsuch interpretation, enforcement or defense, including without limitation the
\ninitiation or defense of any litigation or other legal action, whether by or
\nagainst the Company or any director, officer, stockholder or other person
\naffiliated with the Company, in any jurisdiction. Notwithstanding any existing
\nor prior attorney-client relationship between the Company and such counsel, the
\nCompany irrevocably consents to the Executive153s entering into an attorney-client
\nrelationship with such counsel, and in that connection the Company and the
\nExecutive agree that a confidential relationship shall exist between the
\nExecutive and such counsel. Without respect to whether the Executive prevails,
\nin whole or in part, in connection with any of the foregoing, the Company will
\npay and be solely financially responsible for all reasonable attorneys153 fees and
\nrelated expenses incurred by the<\/p>\n

15<\/p>\n

\n<\/p>\n

Executive in good faith in connection with any of the foregoing; provided,
\nhowever, that the Company shall have no obligation hereunder to pay any
\nattorneys153 fees or related expenses with respect to any frivolous claims made by
\nthe Executive. Payments by the Company shall be made in accordance with the
\nrules immediately below, upon written request of the Executive which must be
\naccompanied by such evidence of eligible fees and expenses as the Company may
\nreasonably require. The Company shall administer such reimbursements
\nconsistent with the following additional requirements as set forth in Treas.
\nReg. \u00a7 1.409A-3(i)(1)(iv): (i) The Executive153s eligibility for
\nreimbursement of eligible legal fees and expenses in one year shall not affect
\nExecutive153s eligibility for eligible legal fees in any other year; (ii) Any
\nreimbursement of eligible legal fees and expenses shall be made on or before the
\nlast day of the year following the year in which the expense was incurred; and
\n (iii) The Executive153s right to the reimbursement of eligible legal fees and
\nexpenses shall not be subject to liquidation or exchange for another benefit.
\n 8. Continuing Obligations.<\/u> The Executive hereby agrees that all
\ndocuments, records, techniques, business secrets and other information which
\nhave come into the Executive153s possession from time to time during the
\nExecutive153s employment with the Company shall be deemed to be confidential and
\nproprietary to the Company and, except for personal documents and records of the
\nExecutive, shall be returned to the Company. The Executive further agrees to
\nretain in confidence any confidential information known to him concerning the
\nCompany and its subsidiaries and their respective businesses so long as such
\ninformation is not otherwise publicly disclosed, except that Executive may
\ndisclose any such information required to be disclosed in the normal course of
\nthe Executive153s employment with the Company or pursuant to any court order or
\nother legal process or as necessary to enforce the Executive153s rights under this
\nAgreement. 9. Successors.<\/u> (a) The Company shall require any
\nsuccessor (whether direct or indirect, by purchase, merger, consolidation or
\notherwise) to all or substantially all of the business and\/or assets of the
\nCompany, by agreement in form and substance reasonably satisfactory to the
\nExecutive to expressly assume and agree to perform this Agreement in the same
\nmanner and to the same extent that the Company would be required to perform it
\nif no such succession had taken place. Failure of such successor entity to enter
\ninto such agreement prior to the effective date of any such succession (or, if
\nlater, within three business days after first receiving a written request for
\nsuch agreement) shall constitute a<\/p>\n

16<\/p>\n

\n<\/p>\n

breach of this Agreement and shall entitle the Executive to terminate
\nemployment pursuant to Section 2(a) (ii) and to receive the payments and
\nbenefits provided under Section 4. As used in this Agreement, “Company” shall
\nmean the Company as herein before defined and any successor to its business
\nand\/or assets as aforesaid which executes and delivers the Agreement provided
\nfor in this Section 9 or which otherwise becomes bound by all the terms and
\nprovisions of this Agreement by operation of law. (b) This Agreement shall
\ninure to the benefit of and be enforceable by the Executive153s personal or legal
\nrepresentatives, executors, administrators, successors, heirs, distributees,
\ndevisees and legatees. If the Executive dies while any amounts are payable to
\nhim hereunder, all such amounts, unless otherwise provided herein, shall be paid
\nin accordance with the terms of this Agreement to the Executive153s designee or,
\nif there is no such designee, to the Executive153s estate.
\n 10. Notices.<\/u> For all purposes of this Agreement, all
\ncommunications, including without limitation notices, consents, requests or
\napprovals, required or permitted to be given hereunder will be in writing and
\nwill be deemed to have been duly given when hand delivered or dispatched by
\nelectronic facsimile transmission (with receipt thereof orally confirmed), or
\nfive business days after having been mailed by United States registered or
\ncertified mail, return receipt requested, postage prepaid, or three business
\ndays after having been sent by a nationally recognized overnight courier service
\nsuch as FedEx, UPS, or Purolator, addressed to the Company (to the attention of
\nthe Secretary of the Company, with a copy to the General Counsel of the Company)
\nat its principal executive office and to the Executive at the Executive153s
\nprincipal residence, or to such other address as any party may have furnished to
\nthe other in writing and in accordance herewith, except that notices of changes
\nof address shall be effective only upon receipt. 11. Governing Law.<\/u>
\n THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
\nAGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
\n 12. Miscellaneous.<\/u> No provisions of this Agreement may be
\nmodified, waived or discharged unless such waiver, modification or discharge is
\nagreed to in a writing signed by the Executive and the Company. No waiver by
\neither party hereto at any time of any breach by the other party hereto of, or
\ncompliance with, any condition or provision of this Agreement to be performed by
\nsuch other party shall be deemed a waiver of similar or dissimilar provisions or
\nconditions at the same or any prior or subsequent time. No agreements or
\nrepresentations, oral or otherwise, express or implied, with respect to the
\nsubject matter<\/p>\n

17<\/p>\n

\n<\/p>\n

hereof have been made by either party which are not set forth expressly in
\nthis Agreement (or in any employment or other written agreement relating to the
\nExecutive). Nothing expressed or implied in this Agreement will create any right
\nor duty on the part of the Company or the Executive to have the Executive remain
\nin the employment of the Company or any subsidiary prior to or following any
\nChange in Control. The Company may withhold from any amounts payable under this
\nAgreement all federal, state, city or other taxes as the Company is required to
\nwithhold pursuant to any law or government regulation or ruling. In the event
\nthat the Company refuses or otherwise fails to make a payment when due and it is
\nultimately decided that the Executive is entitled to such payment, such payment
\nshall be increased to reflect an interest factor, compounded annually, equal to
\nthe prime rate in effect as of the date the payment was first due plus two
\npoints. For this purpose, the prime rate shall be based on the rate identified
\nby Chase Manhattan Bank as its prime rate. 13. Separability.<\/u>
\n The invalidity or unenforceability of any provisions of this Agreement
\nshall not affect the validity or enforceability of any other provision of this
\nAgreement, which shall remain in full force and effect.
\n 14. Non-assignability.<\/u> This Agreement is personal in nature and
\nneither of the parties hereto shall, without the consent of the other, assign or
\ntransfer this Agreement or any rights or obligations hereunder, except as
\nprovided in Section 9. Without limiting the foregoing, the Executive153s right to
\nreceive payments hereunder shall not be assignable or transferable, whether by
\npledge, creation of a security interest or otherwise, other than a transfer by
\nwill or by the laws of descent or distribution, and in the event of any
\nattempted assignment or transfer by the Executive contrary to this Section 14
\nthe Company shall have no liability to pay any amount so attempted to be
\nassigned or transferred to any person other than the Executive or, in the event
\nof death, the Executive153s designated beneficiary or, in the absence of an
\neffective beneficiary designation, the Executive153s estate.
\n 15. Effectiveness; Term.<\/u> This Agreement will be effective and
\nbinding as of the date first above written immediately upon its execution and
\nshall continue in effect through the second anniversary of such date;
\nprovided<\/u>, however<\/u>, that the term of this Agreement shall
\nautomatically be extended for an additional day for each day that passes so that
\nthere shall at any time be two years remaining in the term unless the Company
\nprovides written notice to the Executive that it does not wish the term of this
\nAgreement to continue to be so extended, in which case the Agreement shall
\nterminate on the second anniversary of such notice if there has not been a
\nChange in Control prior to such second anniversary. In the event that a Change
\nin Control has occurred during the term of this Agreement, then<\/p>\n

18<\/p>\n

\n<\/p>\n

this Agreement shall continue to be effective until the second anniversary of
\nsuch Change in Control. Notwithstanding any other provision of this Agreement,
\nif, prior to a Change in Control, the Executive ceases for any reason to be an
\nemployee of the Company and any subsidiary (other than a termination of
\nemployment pursuant to Section 2(d) hereof), thereupon without further action
\nthe term of this Agreement shall be deemed to have expired and this Agreement
\nwill immediately terminate and be of no further effect. For purposes of this
\nSection 15, the Executive shall not be deemed to have ceased to be an employee
\nof the Company and any subsidiary by reason of the transfer of the Executive153s
\nemployment between the Company and any subsidiary, or among any subsidiaries.
\nNotwithstanding any provision of this Agreement to the contrary, the parties153
\nrespective rights and obligations under Sections 4 through 9 will survive any
\ntermination or expiration of this Agreement or the termination of the
\nExecutive153s employment following a Change in Control for any reason whatsoever.
\n 16. Counterparts.<\/u> This Agreement may be executed in one or more
\ncounterparts, each of which shall be deemed to be an original but all of which
\ntogether will constitute one and the same agreement. 17. Prior
\nAgreement.<\/u> This Agreement supersedes and terminates any and all prior
\nsimilar agreements by and among Company (and\/or a subsidiary) and the Executive,
\nincluding, without limitation, the Prior Agreement. IN WITNESS WHEREOF, the
\nparties have caused this Agreement to be executed and delivered as of the day
\nand year first above set forth.<\/p>\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

HESS CORPORATION<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ John B. Hess <\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Name: John B. Hess<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Title: Chairman and CEO<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\/s\/ F. Borden Walker
\n F. Borden Walker 19<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7769],"corporate_contracts_industries":[9409],"corporate_contracts_types":[9539,9551],"class_list":["post-38496","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-hess-corp","corporate_contracts_industries-energy__exploration","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38496","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38496"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38496"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38496"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38496"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}