{"id":38502,"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-termination-benefits-agreement-hess.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"amended-and-restated-termination-benefits-agreement-hess","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/amended-and-restated-termination-benefits-agreement-hess.html","title":{"rendered":"Amended and Restated Termination Benefits Agreement – 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 AGREEMENT
\n(the “Agreement”), dated as of the 29th day of May, 2009, is between
\nHess Corporation<\/strong>, a Delaware corporation (the “Company”), and
\nJohn P. Rielly<\/strong> (the “Executive”). WITNESSETH:<\/strong>
\nWHEREAS<\/strong>, the Company and the Executive are parties to that
\ncertain Change in Control Termination Benefits Agreement, dated as of January
\n20, 2005 (the “Prior Agreement”); WHEREAS<\/strong>, the Company
\nconsiders it essential to the best interests of the Company and its stockholders
\nthat its management be encouraged to remain with the Company and to continue to
\ndevote full attention to the Company153s business in the event of a transaction or
\nseries of transactions that could result in a change in control of the Company
\nthrough a tender offer or otherwise; WHEREAS<\/strong>, the Company
\nrecognizes that the possibility of a change in control and the uncertainty which
\nit may raise among management may result in the departure or distraction of
\nmanagement personnel to the detriment of the Company and its stockholders;
\nWHEREAS<\/strong>, the Executive is a key executive of the Company;
\nWHEREAS<\/strong>, the Company believes the Executive has made valuable
\ncontributions to the productivity and profitability of the Company;
\nWHEREAS<\/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

1<\/p>\n

\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; WHEREAS<\/strong>,
\nthe Company intends that the Agreement comply with, or not be subject to,
\nsection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and
\nguidance and regulations issued thereunder, so that, notwithstanding any other
\nprovision of the Agreement, the Agreement shall be interpreted, operated and
\nadministered in a manner consistent with this intention; and
\nWHEREAS<\/strong>, the Company and the Executive mutually desire to make
\ncertain revisions to the Prior Agreement consistent with such intention.
\nNOW, THEREFORE, <\/strong>(a) to assure the Company that it will have the
\ncontinued undivided attention and services of the Executive and the availability
\nof the Executive153s advice and counsel notwithstanding the possibility, threat or
\noccurrence of a change in control of the Company, and to induce the Executive to
\nremain in the employ of the Company and (b) in order that the Agreement comply
\nwith, or not be subject to, Section 409A of the Code, and for other good and
\nvaluable consideration, the Prior Agreement is hereby amended and restated as of
\nthe date first above set forth as follows: 1. Change in Control.<\/u> For
\npurposes of the Agreement, a Change in Control shall be deemed to have taken
\nplace if any of the following shall occur: (a) The acquisition by any
\nindividual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
\nof the Securities Exchange Act of 1934 (the “Exchange Act”)), of beneficial
\nownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
\nof 20% or more of either the then (i) outstanding shares of Common Stock of the
\nCompany (the “Outstanding Company Common Stock”) or (ii) combined voting power
\nof the then outstanding voting securities of the Company entitled to vote
\ngenerally in the election of directors (the “Outstanding Voting Securities”)
\nprovided<\/u>, however<\/u>, that the following acquisitions shall not
\nconstitute a Change in Control: (i) any acquisition by the Company or any of its
\nsubsidiaries, (ii) any acquisition by an employee benefit plan (or related
\ntrust) sponsored or maintained by the Company or any of its subsidiaries, (iii)
\nany acquisition by any company with respect to which, following such
\nacquisition, more than 60% of, respectively, the then outstanding shares of
\ncommon stock of such company and the combined voting power of the then
\noutstanding voting securities of such company entitled to vote generally in the
\nelection of directors is then beneficially owned, directly or indirectly, by all
\nor substantially 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 acquisition in substantially the
\nsame proportions as their ownership, immediately prior to such acquisition, of
\nthe Outstanding Company Common Stock and Outstanding Voting<\/p>\n

2<\/p>\n

\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, (E)
\nthe Hess Foundation Inc., or (F) any persons comprising a group controlled (as
\nsuch term is defined in such Rule 12b-2) by one or more of the foregoing persons
\nor entities described in this Section 1(a)(iv)); or (b) Within any 24 month
\nperiod, individuals who, immediately prior to the beginning of such period,
\nconstitute the Board (the “Incumbent Board”) cease for any reason to constitute
\nat least a majority of the Board; provided,<\/u> however,<\/u> that any
\nindividual becoming a director during such period whose election, or nomination
\nfor election by the Company153s stockholders, was approved by a vote of at least a
\nmajority of the directors then comprising the Incumbent Board shall be
\nconsidered as though such individual were a member of the Incumbent Board, but
\nexcluding, 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 (c)
\nConsummation of a reorganization, merger or consolidation, in each case, with
\nrespect to which all or substantially all of the individuals and entities who
\nwere the beneficial owners, respectively, of the Outstanding Company Common
\nStock 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 complete
\nliquidation or dissolution of the Company or (ii) the sale or other disposition
\nof all or substantially all of the assets of the Company, other than to a
\ncompany, with respect to which following such sale or other disposition, more
\nthan 60% of, respectively, the then outstanding shares of common stock of such
\ncompany and the combined voting power of the then outstanding voting securities
\nof such company 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 sale or other disposition in substantially the same proportion as
\ntheir ownership, immediately prior to such sale or other disposition, of the
\nOutstanding Company Common Stock and Outstanding Voting Securities, as the case
\nmay be. The term “the sale or other disposition of all or<\/p>\n

3<\/p>\n

\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 Benefits.<\/u>
\n(a) Subject to Section 2(c), the Company will provide the Executive with the
\nbenefits set forth in Section 4 upon the Executive153s Separation from Service
\nthat is initiated: (i) by the Company at any time within the first 24 months
\nafter a Change in Control; (ii) by the Executive for “Good Reason” (as defined
\nin Section 2(b) below) at any time within the first 24 months after a Change in
\nControl; or (iii) by the Company or the Executive pursuant to Section 2(d). For
\npurposes of this Agreement, the term “Separation from Service” or “Separate(s\/d)
\nfrom Service” means a “separation from service” within the meaning of Code
\nsection 409A and Treasury Regulations thereunder. (b) In the event of a Change
\nin Control, the Executive may Separate from Service for “Good Reason” and
\nreceive the payments and benefits set forth in Section 4 upon the occurrence of
\none or more of the following events (regardless of whether any other reason,
\nother than Cause as provided below, for such Separation from Service exists or
\nhas occurred):<\/p>\n

4<\/p>\n

\n

(i) Failure to elect or reelect or otherwise to maintain the Executive in the
\noffice 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 Executive153s
\nauthorities, powers, functions, responsibilities or duties from those in effect
\nimmediately prior to the Change in Control, (B) a reduction in the Executive153s
\nannual base salary rate, (C) a reduction in the Executive153s annual incentive
\ncompensation target or any material reduction in the Executive153s other bonus
\nopportunities, or (D) the termination or denial of the Executive153s ability to
\nparticipate in Employee Benefits (as defined in Section 4(b)) or retirement
\nbenefits (as described in Section 4(c)) or a material reduction in the scope or
\nvalue thereof, any of which is not remedied by the Company within 10 days after
\nreceipt by the Company of written notice from the Executive of such change,
\nreduction or termination, as the case may be; (iii) The liquidation,
\ndissolution, merger, consolidation or reorganization of the Company or transfer
\nof all or substantially all of its businesses and\/or assets, unless the
\nsuccessor or successors (by liquidation, merger, consolidation, reorganization,
\ntransfer or otherwise) to which all or substantially all of its businesses
\nand\/or assets have been transferred (directly or by operation of law) assumed
\nall duties and obligations of the Company under this Agreement pursuant to
\nSection 9(a); (iv) The Company requires the Executive to change the Executive153s
\nprincipal location of work to a location that is in excess of 30 miles from the
\nlocation thereof immediately prior to the Change in Control, or requires the
\nExecutive to travel in the course of discharging the Executive153s
\nresponsibilities or duties at least 20% more (in terms of aggregate days in any
\ncalendar year or in any calendar quarter when annualized for purposes of
\ncomparison to any prior year) than was required of the Executive in any of the
\nthree full years immediately prior to the Change in Control without, in either
\ncase, the Executive153s prior written consent; (v) Without limiting the generality
\nor effect of the foregoing, any material breach of this Agreement by the Company
\nor any successor thereto, which breach is not remedied within 10 days after
\nwritten notice to the Company from the Executive describing the nature of such
\nbreach. (c) Notwithstanding Sections 2(a) and (b) above, no benefits shall be
\npayable by reason of this Agreement in the event of:<\/p>\n

5<\/p>\n

\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 Section
\n3, of the intent to terminate the Executive153s employment due to Disability; (ii)
\nThe Executive153s retirement on or after Normal Retirement Date pursuant to the
\nCompany153s Employees153 Pension Plan; provided, however, that if the Executive
\nSeparates from Service for Good Reason at such time of retirement, the
\nExecutive153s retirement shall be treated hereunder as a Separation from Service
\nfor Good Reason and the Executive shall be entitled to the benefits provided in
\nSection 4 hereof; (iii) The Executive153s Separation from Service for Cause. For
\nthe purposes hereof, “Cause” shall be defined as (A) a felony conviction of the
\nExecutive or the failure of the Executive to contest prosecution for a felony,
\n(B) the Executive153s gross and willful misconduct in connection with the
\nperformance of the Executive153s duties with the Company and\/or its subsidiaries
\nor (C) the willful and continued failure of the Executive to substantially
\nperform the Executive153s duties with the Company (or any successor thereto) after
\na written demand from the Company153s internal Executive Committee, any successor
\nor similar internal management committee or, absent any such committee, its
\nChief Executive Officer (such committee, or the Chief Executive Officer, being
\nthe “Notifying Party”) for substantial performance which specifically identifies
\nthe manner in which the Notifying Party believes that the Executive has not
\nperformed the Executive153s duties with the Company, any of which is directly and
\nmaterially harmful to the business or reputation of the Company or any
\nsubsidiary or affiliate. Notwithstanding the foregoing, the Executive shall not
\nbe deemed to have Separated from Service for “Cause” hereunder unless and until
\nthe Executive shall have been afforded, after reasonable notice, an opportunity
\nto appear, together with counsel (if the Executive chooses to have counsel
\npresent), before the Notifying Party, if the Notifying Party is a committee, or
\nin the event that the Notifying Party is the Chief Executive Officer, the three
\nmost highly compensated senior executive officers of the Company, not including
\nthe Chief Executive Officer (such Notifying Party or the three senior executive
\nofficers, as the case may be, being the “Hearing Party”), and after such hearing
\nthere shall have been delivered to the Executive a written determination by the
\nHearing Party that, in the good faith opinion of the Hearing Party the Executive
\nshall have been Separated from Service for “Cause” as herein defined and
\nspecifying the<\/p>\n

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\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 the
\nExecutive for an event that would constitute Good Reason following a Change in
\nControl that occurs, in either event, prior to a Change in Control, but occurs
\n(i) not more than 180 days prior to the date on which a Change in Control occurs
\nand (ii) (x) at the request of a third party who has indicated an intention or
\ntaken steps reasonably calculated to effect a Change in Control or (y) otherwise
\narose in connection with, or in anticipation of, a Change in Control, shall be
\ndeemed to be a Separation from Service without Cause within the first 24 months
\nafter a Change in Control for purposes of this Agreement and the date of such
\nChange in Control shall be deemed to be the date immediately preceding the date
\nthe Executive153s Separation from Service. 3. Notice of Termination.<\/u> Any
\nSeparation from Service as contemplated by Section 2 shall be communicated by
\nwritten “Notice of Separation” to the other party hereto. Any “Notice of
\nSeparation” shall (i) indicate the effective date of the Separation from
\nService, which shall not be less than 30 days or more than 60 days after the
\ndate the Notice of Separation is delivered (the “Separation Date”), (ii) cite
\nthe specific provision in this Agreement relied upon, and (iii) except for a
\nSeparation from Service pursuant to Section 2(d), shall set forth in reasonable
\ndetail the facts and circumstances claimed to provide a basis for such
\nSeparation from Service including, if applicable, the failure by the Company,
\nafter provision of written notice by the Executive, to effect a remedy pursuant
\nto the final clause of Section 2(b)(ii) or 2(b)(v). 4. Benefits upon
\nSeparation from Service.<\/u> Subject to the conditions set forth in Section 2,
\nthe following benefits shall be paid or provided to the Executive: (a)
\nCompensation.<\/u> The Company shall pay to the Executive two times the sum of
\n(i) “Base Pay”, which shall be an amount equal to the greater of (A) the
\nExecutive153s rate of annual base salary (prior to any deferrals) on the date of
\nthe Executive153s Separation from Service, or (B) the Executive153s rate of annual
\nbase salary (prior to any deferrals) immediately prior to the Change in Control,
\nplus (ii) “Incentive Pay”, which shall be an amount equal to the greater of (X)
\nthe target annual bonus payable to the Executive under the Company153s incentive
\ncompensation plan or any other annual bonus plan for the fiscal year of the
\nCompany in which the Change in Control occurred or (Y) the highest annual bonus\n<\/p>\n

7<\/p>\n

\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 payable
\nunder 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 Benefits.<\/u>
\nFor a period of 24 months following the date of the Executive153s Separation from
\nService (the “Continuation Period”), the Company shall arrange to provide the
\nExecutive with benefits (the “Employee Benefits”), including travel accident,
\nmajor medical, dental care and other welfare benefit programs, substantially
\nsimilar to those in effect immediately prior to the Change in Control, or, if
\ngreater, to those that the Executive was receiving or entitled to receive
\nimmediately prior to the date of the Executive153s Separation from Service (or, if
\ngreater, immediately prior to the reduction, termination, or denial described in
\nSection 2(b)(ii)(D)). If and to the extent that any benefit described in this
\nSection 4(b) is not or cannot be paid or provided under any policy, plan,
\nprogram or arrangement of the Company or any subsidiary, as the case may be,
\nthen the Company will itself pay or provide for the payment to the Executive,
\nthe Executive153s dependents and beneficiaries of such Employee Benefits along
\nwith, in the case of any benefit which is subject to tax because it is not or
\ncannot be paid or provided under any such policy,<\/p>\n

8<\/p>\n

\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 of
\neligible expenses will be made on or before the last day of the year following
\nthe year in which the expense was incurred; and (iii) Executive153s right to
\nEmployee Benefits shall not be subject to liquidation or exchange for another
\nbenefit. In the event the preceding sentence applies and the Executive is a Key
\nEmployee (as defined in Section 4(g)), provision of Employee Benefits after the
\nCOBRA period shall commence on the first day of the seventh month following the
\ndate of the Executive153s Separation from Service (or, if earlier, the first day
\nof the month after the Executive153s death). (c) Retirement Benefits.<\/u> The
\nExecutive shall be deemed to be completely vested in the Executive153s currently
\naccrued benefits under the Company153s Employees153 Pension Plan and the Company153s
\nPension Restoration Plan or other supplemental pension plan (“SERP”) in effect
\nas of the date of the Change in Control (collectively, the “Plans”), regardless
\nof the Executive153s actual vesting service credit thereunder. In addition, the
\nExecutive shall be deemed to earn age and service credit for benefit calculation
\npurposes thereunder for the Continuation Period. The additional retirement
\nbenefits to be paid pursuant to the Plans shall be calculated as though the
\nExecutive153s compensation rate for the years during the<\/p>\n

9<\/p>\n

\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 Plans.<\/u>
\n(i) Any issued and outstanding stock options shall vest and become exercisable
\non the date of the Executive153s Separation from Service (to the extent they have
\nnot already become vested and exercisable) and any other stock-based awards
\nunder any compensation plan or program maintained by the Company (including,
\nwithout limitation, awards of restricted stock and book value appreciation
\nunits) and the Executive153s rights thereunder shall vest on the date of the
\nExecutive153s Separation from Service (to the extent they have not already vested)
\nand any performance criteria under any such compensation plan or program shall
\nbe deemed met at target as of the date of the Executive153s Separation from
\nService . (ii) If and to the extent that any benefit or entitlement (or portion
\nthereof) described in paragraph (i) above is not able to be implemented by the
\nCompany under the then applicable terms of any plan, program or award agreement
\napplicable to the Executive, to the extent permitted by Code section 409A, the
\nCompany shall pay to the Executive cash and\/or other property (including,
\nwithout limitation, common stock of the Company or any successor thereto) with a
\nvalue, as determined by the Board, equal to the value of any such option, award
\nor other entitlement (or portion thereof) that the Executive was not able to
\nreceive under paragraph (i) above, such payment shall be made upon the date
\nprovided in Section 4(a) following the Executive153s Separation from Service and
\nsuch payment shall be in full satisfaction of the option, award or other
\nentitlement (or portion thereof) to which such payment relates. (e) Defined
\nContribution Deferred Compensation Plans.<\/u> The Company shall pay to the
\nExecutive all other amounts of tax-qualified and nonqualified deferred
\ncompensation accrued or earned by the Executive through the date of the
\nExecutive153s Separation from Service, and amounts otherwise owing under the then
\nexisting plans and policies of the Company, other than those amounts described
\nin Section 4(c), including but not limited to, all amounts of compensation
\npreviously deferred by the Executive (together with any accrued interest or
\nother earnings thereon) and not yet paid by the Company, under the terms and
\nconditions and time and form of payment of the underlying applicable
\narrangements, plans or policies of the Company.<\/p>\n

10<\/p>\n

\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. (g) Key
\nEmployee.<\/u> For purposes of this Section 4, the term “Key Employee” means an
\nemployee treated as a “specified employee” as of his Separation from Service
\nunder Code section 409A(a)(2)(B)(i), i.e.<\/u>, a key employee (as defined in
\nCode section 416(i) without regard to paragraph (5) thereof) of the Company or
\nits affiliates if the Company153s or its affiliate153s stock is publicly traded on
\nan established securities market or otherwise. Key Employees shall be determined
\nin accordance with Code section 409A using a December 31 identification date. A
\nlisting of Key Employees as of an identification date shall be effective for the
\n12-month period beginning on the April 1 following the identification date. 5.
\nCertain Additional Payments by the Company.<\/u> (a) Anything in this
\nAgreement to the contrary notwithstanding, in the event that it shall be
\ndetermined (as hereafter provided) that any payment (other than the Gross-Up
\npayments provided for in this Section 5) or benefit provided by the Company or
\nany of its subsidiaries to or for the benefit of the Executive, whether paid or
\npayable or provided pursuant to the terms of this Agreement or otherwise
\npursuant to or by reason of any other agreement, policy, plan, program or
\narrangement, including without limitation any stock option, stock appreciation
\nright or similar right, restricted stock, deferred stock or the lapse or
\ntermination of any restriction on, deferral period for, or the vesting or
\nexercisability of any of the foregoing (a “Payment”), would be subject to the
\nexcise tax imposed by Section 4999 of the Code (or any successor provision
\nthereto) by reason of being considered “contingent on a change in ownership or
\ncontrol” of the Company, within the meaning of Section 280G of the Code (or any
\nsuccessor provision thereto) or to any similar tax imposed by state or local
\nlaw, or any interest or penalties with respect to any such tax (such tax or
\ntaxes, together with any such interest and penalties, being hereafter
\ncollectively referred to as the “Excise Tax”), then the Executive shall be
\nentitled to receive an additional payment or payments (collectively, a “Gross-Up
\nPayment”). The Gross-Up Payment shall be in an amount such that, after payment
\nby the Executive of all taxes (including any interest or penalties imposed with
\nrespect to such taxes), including any Excise Tax and any income tax imposed upon
\nthe Gross-Up Payment, the Executive<\/p>\n

11<\/p>\n

\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 determinations
\nrequired to be made under this Section 5, including whether an Excise Tax is
\npayable by the Executive and the amount of such Excise Tax and whether a
\nGross-Up Payment is required to be paid by the Company to the Executive and the
\namount of such Gross-Up Payment, if any, shall be made by the Company153s outside
\nauditors immediately prior to the Change in Control (the “Accounting Firm”). The
\nExecutive shall direct the Accounting Firm to submit its determination and
\ndetailed supporting calculations to both the Company and the Executive within 30
\ndays after the Change in Control Date, the date of the Executive153s Separation
\nfrom Service, if applicable, and any such other time or times as may be
\nrequested by the Company or the Executive. If the Accounting Firm determines
\nthat any Excise Tax is payable by the Executive, the Company shall pay the
\nrequired Gross-Up Payment to the Executive within five business days after
\nreceipt of such determination and calculations with respect to any Payment to
\nthe Executive. If the Accounting Firm determines that no Excise Tax is payable
\nby the Executive, it shall, at the same time as it makes such. determination,
\nfurnish the Company and the Executive an opinion that the Executive has
\nsubstantial authority not to report any Excise Tax on the Executive153s federal,
\nstate or local income or other tax return. As a result of the uncertainty in the
\napplication of Section 4999 of the Code (or any successor provision thereto) and
\nthe possibility of similar uncertainty regarding applicable state or local tax
\nlaw at the time of any determination by the Accounting Firm hereunder, it is
\npossible that a Gross-Up Payment which will not have been made by the Company
\nshould have been made (an “Underpayment153), consistent with the calculations
\nrequired to be made hereunder. In the event that the Company exhausts or fails
\nto pursue its remedies pursuant to Section 5(t) and the Executive thereafter is
\nrequired to make a payment of any Excise Tax, the Executive shall direct the
\nAccounting Firm to determine the amount of the Underpayment that has occurred
\nand to submit its determination and detailed supporting calculations to both the
\nCompany and the Executive as promptly as possible. Any such Underpayment shall
\nbe promptly paid by the Company to, or for the benefit of, the Executive within
\nfive business days after receipt of such determination and calculations. (c) The
\nCompany and the Executive shall each provide the Accounting Firm access to and
\ncopies of any books, records and documents in the possession of the Company or
\nthe Executive, as the case may be, reasonably requested by the Accounting Firm,
\nand otherwise cooperate with the Accounting Firm in connection with the
\npreparation and issuance of the determinations and calculations contemplated by
\nSection 5(b). Any determination by the Accounting Firm as to the amount of the
\nGross-Up Payment shall be binding upon the Company and the Executive. (d) The
\nfederal, state and local income or other tax returns filed by the Executive
\nshall be prepared and filed on a consistent basis with the determination of the
\nAccounting Firm with respect to the Excise Tax payable by the Executive. The
\nExecutive shall make proper payment of the amount of any Excise Tax, and at the
\nrequest of the Company,<\/p>\n

12<\/p>\n

\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

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 Section
\n5(t), the Company shall control all proceedings taken in connection with the
\ncontest of any claim contemplated by this Section 5(t) and, at its sole option,
\nmay pursue or forego any and all administrative appeals, proceedings, hearings
\nand 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 anything in
\nthis Section 5 to the contrary, any payment made to or on behalf of the
\nExecutive 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

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 compensation
\nby the Company to the Executive in accordance with the terms of this Agreement
\nis hereby acknowledged by the Company to be reasonable, and the Executive will
\nnot be required to mitigate the amount of any payment or other benefit provided
\nin this Agreement by seeking other employment or otherwise, nor will any
\nprofits, income, earnings or other benefits from any source whatsoever create
\nany mitigation, offset, reduction or any other obligation on the part of the
\nExecutive hereunder or otherwise, except as expressly provided in the second to
\nlast 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.
\n7. Legal Fees and Expenses.<\/u> It is the intent of the Company that the
\nExecutive 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

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 consistent
\nwith the following additional requirements as set forth in Treas. Reg. \u00a7
\n1.409A-3(i)(1)(iv): (i) The Executive153s eligibility for reimbursement of
\neligible legal fees and expenses in one year shall not affect Executive153s
\neligibility for eligible legal fees in any other year; (ii) Any reimbursement of
\neligible legal fees and expenses shall be made on or before the last day of the
\nyear following the year in which the expense was incurred; and (iii) The
\nExecutive153s right to the reimbursement of eligible legal fees and expenses shall
\nnot be subject to liquidation or exchange for another benefit. 8. Continuing
\nObligations.<\/u> The Executive hereby agrees that all documents, records,
\ntechniques, business secrets and other information which have come into the
\nExecutive153s possession from time to time during the Executive153s employment with
\nthe Company shall be deemed to be confidential and proprietary to the Company
\nand, except for personal documents and records of the Executive, shall be
\nreturned to the Company. The Executive further agrees to retain in confidence
\nany confidential information known to him concerning the Company and its
\nsubsidiaries and their respective businesses so long as such information is not
\notherwise publicly disclosed, except that Executive may disclose any such
\ninformation required to be disclosed in the normal course of the Executive153s
\nemployment with the Company or pursuant to any court order or other legal
\nprocess or as necessary to enforce the Executive153s rights under this Agreement.
\n9. Successors.<\/u> (a) The Company shall require any successor (whether
\ndirect or indirect, by purchase, merger, consolidation or otherwise) to all or
\nsubstantially all of the business and\/or assets of the Company, by agreement in
\nform and substance reasonably satisfactory to the Executive to expressly assume
\nand agree to perform this Agreement in the same manner and to the same extent
\nthat the Company would be required to perform it if no such succession had taken
\nplace. Failure of such successor entity to enter into such agreement prior to
\nthe effective date of any such succession (or, if later, within three business
\ndays after first receiving a written request for such agreement) shall
\nconstitute a<\/p>\n

16<\/p>\n

\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 inure
\nto 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. 10. Notices.<\/u>
\nFor all purposes of this Agreement, all communications, including without
\nlimitation notices, consents, requests or approvals, required or permitted to be
\ngiven hereunder will be in writing and will be deemed to have been duly given
\nwhen hand delivered or dispatched by electronic facsimile transmission (with
\nreceipt thereof orally confirmed), or five business days after having been
\nmailed by United States registered or certified mail, return receipt requested,
\npostage prepaid, or three business days after having been sent by a nationally
\nrecognized overnight courier service such as FedEx, UPS, or Purolator, addressed
\nto the Company (to the attention of the Secretary of the Company, with a copy to
\nthe General Counsel of the Company) at its principal executive office and to the
\nExecutive at the Executive153s principal residence, or to such other address as
\nany party may have furnished to the other in writing and in accordance herewith,
\nexcept that notices of changes of address shall be effective only upon receipt.
\n11. Governing Law.<\/u> THE VALIDITY, INTERPRETATION, CONSTRUCTION AND
\nPERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
\nYORK. 12. Miscellaneous.<\/u> No provisions of this Agreement may be modified,
\nwaived or discharged unless such waiver, modification or discharge is agreed to
\nin a writing signed by the Executive and the Company. No waiver by either party
\nhereto at any time of any breach by the other party hereto of, or compliance
\nwith, any condition or provision of this Agreement to be performed by such other
\nparty shall be deemed a waiver of similar or dissimilar provisions or conditions
\nat the same or any prior or subsequent time. No agreements or representations,
\noral or otherwise, express or implied, with respect to the subject matter<\/p>\n

17<\/p>\n

\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> The
\ninvalidity or unenforceability of any provisions of this Agreement shall not
\naffect the validity or enforceability of any other provision of this Agreement,
\nwhich shall remain in full force and effect. 14. Non-assignability.<\/u> This
\nAgreement is personal in nature and neither of the parties hereto shall, without
\nthe consent of the other, assign or transfer this Agreement or any rights or
\nobligations hereunder, except as provided in Section 9. Without limiting the
\nforegoing, the Executive153s right to receive payments hereunder shall not be
\nassignable or transferable, whether by pledge, creation of a security interest
\nor otherwise, other than a transfer by will or by the laws of descent or
\ndistribution, and in the event of any attempted assignment or transfer by the
\nExecutive contrary to this Section 14 the Company shall have no liability to pay
\nany amount so attempted to be assigned or transferred to any person other than
\nthe Executive or, in the event of death, the Executive153s designated beneficiary
\nor, in the absence of an effective beneficiary designation, the Executive153s
\nestate. 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

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.
\n16. 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 Agreement.<\/u>
\nThis Agreement supersedes and terminates any and all prior similar agreements by
\nand among Company (and\/or a subsidiary) and the Executive, including, without
\nlimitation, the Prior Agreement. IN WITNESS WHEREOF, the parties have caused
\nthis Agreement to be executed and delivered as of the day and year first above
\nset 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:<\/p>\n<\/td>\n

<\/td>\n\n

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

<\/td>\n\n

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

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

\/s\/ John P. Rielly
\nJohn P. Rielly<\/p>\n

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