Deferred Compensation Plan - Chesapeake Energy Corp.
CHESAPEAKE ENERGY CORPORATION
DEFERRED COMPENSATION PLAN
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CHESAPEAKE ENERGY CORPORATION
DEFERRED COMPENSATION PLAN
Table of Contents
Page
ARTICLE I ESTABLISHMENT AND PURPOSE ...........................................1
1.1 Establishment ......................................................1
1.2 Purpose ............................................................1
1.3 ERISA Status .......................................................1
ARTICLE II DEFINITIONS ........................................................1
2.1 Definitions ........................................................1
ARTICLE III ELIGIBILITY AND PARTICIPATION .....................................4
ARTICLE IV ELECTIVE DEFERRALS .................................................4
4.1 Eligible Employee Elective Deferrals ...............................4
4.2 Director Deferrals .................................................5
4.3 Timing of Deferral Election ........................................5
ARTICLE V COMPANY DISCRETIONARY CONTRIBUTIONS .................................5
ARTICLE VI PAYMENT OF BENEFITS ................................................5
6.1 Payment Upon Termination or Disability. ............................5
6.2 Scheduled In-Service Withdrawal ....................................6
6.3 Payment to Beneficiary .............................................7
6.4 Beneficiary Designations ...........................................7
6.5 Changes in Payment Date. ...........................................7
ARTICLE VII ACCOUNTS AND INVESTMENT ...........................................8
7.1 Establishment of Account ...........................................8
7.2 Balance of Account .................................................8
7.3 Investment Direction - Deferred Amounts ............................8
7.4 Investment of Company Contributions ................................8
7.5 Vesting ............................................................9
7.6 Account Statements .................................................9
ARTICLE VIII ADMINISTRATION .................................................. 9
8.1 Administration .................................................... 9
8.2 Indemnification and Exculpation ................................... 9
8.3 Rules of Conduct ..................................................10
8.4 Legal, Accounting, Clerical and Other Services ....................10
8.5 Records of Administration .........................................10
8.6 Expenses ..........................................................10
8.7 Liability .........................................................10
8.8 Claims Review Procedures ..........................................10
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8.9 Finality of Determinations; Exhaustion of Remedies ................11
8.10 Effect of Fiduciary Action ........................................11
ARTICLE IX GENERAL PROVISIONS ................................................12
9.1 Effect on Other Plans .............................................12
9.2 Conditions of Employment Not Affected by Plan .....................12
9.3 Restrictions on Alienation of Benefits ............................12
9.4 Funding ...........................................................13
9.5 Construction ......................................................13
9.6 Severability ......................................................13
9.7 Tax Consequences Not Guaranteed ...................................13
9.8 Tax Withholding ...................................................13
9.9 Articles and Section Titles and Headings ..........................14
9.10 Governing Law .....................................................14
ARTICLE X AMENDMENT AND TERMINATION ..........................................14
10.1 Amendment and Termination .........................................14
10.2 Change of Control .................................................14
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CHESAPEAKE ENERGY CORPORATION
DEFERRED COMPENSATION PLAN
ARTICLE I
ESTABLISHMENT AND PURPOSE
1.1 Establishment. Chesapeake Energy Corporation ("Company"), hereby
adopts the Chesapeake Energy Corporation Deferred Compensation Plan effective
January 1, 2003.
1.2 Purpose. The Plan shall provide Eligible Employees and Directors the
ability to defer payment of compensation earned and/or granted by the Company,
its Subsidiaries and/or Affiliated Entities. The Plan is intended to provide
such Eligible Employees and Directors with a degree of flexibility in their
financial planning.
1.3 ERISA Status. The Plan is intended to qualify for the exemptions
provided under Title I of ERISA for plans that are not tax-qualified and that
are maintained primarily to provide deferred compensation for a select group of
management or highly compensated employees as defined in Section 201(2) of
ERISA.
ARTICLE II
DEFINITIONS
2.1 Definitions. For purposes of this Plan, the following definitions
shall apply:
(a) "Account" means the recordkeeping accounts maintained in the
name of a Participant to which Deferred Amounts, Company Discretionary
Contributions and any income, earnings or losses thereon are recorded pursuant
to the provisions of Article VII.
(b) "Affiliated Entity" means any partnership or limited liability
company in which a majority of the partnership or other similar interest thereof
is owned or controlled, directly or indirectly, by the Company or one or more of
its Subsidiaries or Affiliated Entities or a combination thereof. For purposes
hereof, the Company, a Subsidiary or an Affiliated Entity shall be deemed to
have a majority ownership interest in a partnership or limited liability company
if the Company, such Subsidiary or Affiliated Entity shall be allocated a
majority of partnership or limited liability company gains or losses or shall be
or control a managing director or a general partner of such partnership or
limited liability company.
(c) "Base Salary" means the Participant's annualized gross rate of
salary paid before any deductions of any kind whatsoever excluding overtime,
bonuses, commissions and other extraordinary compensation.
(d) "Beneficiary" means the person, persons, trust, or other entity
designated by a Participant on a beneficiary designation form adopted by the
Committee to receive benefits, if any, under this Plan at such Participant's
death pursuant to Section 6.4.
(e) "Board" means the Board of Directors of the Company.
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(f) "Bonus" means the Participant's cash performance bonus(es) to be
paid during each calendar year before any deductions of any kind whatsoever.
(g) "Change of Control" means the occurrence of any of the
following:
(i) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (A) the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (B) the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting Securities"). For
purposes of this paragraph 2.1(g) the following acquisitions by a Person will
not constitute a Change of Control: (1) any acquisition directly from the
Company; (2) any acquisition by the Company; (3) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company; or (4) any acquisition by any corporation
pursuant to a transaction which complies with clauses (A), (B) and (C) of
paragraph (iii) below;
(ii) the individuals who, as of the date hereof, constitute the
board of directors (the "Incumbent Board") cease for any reason to constitute at
least a majority of the board of directors. Any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's shareholders, is approved by a vote of at least a majority of the
directors then comprising the Incumbent Board will be considered a member of the
Incumbent Board as of the date hereof, but any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Incumbent Board will not be deemed a member of the Incumbent Board as
of the date hereof;
(iii) the consummation of a reorganization, merger,
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), unless following such Business
Combination: (A) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be, (B) no
Person (excluding any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common
stock of the corporation
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resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination and (C) at least a
majority of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(iv) the approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
(h) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any Regulations relating thereto.
(i) "Committee" means the committee appointed by the Board of
Directors of the Company to manage and administer the Plan.
(j) "Company Discretionary Contributions" means a discretionary
contribution made by the Company to a Participant's Account pursuant to Article
V of the Plan.
(k) "Deferred Amount" means the portion of a Participant's Base
Salary and Bonus which the Participant elects to defer pursuant to Article IV.
Deferred Amounts shall also include Director Fees which a Director elects to
defer pursuant to Article IV. Deferred Amounts shall be determined by reference
to the Plan Year in which the Base Salary or Director Fee is earned and the Plan
Year in which the Bonus would otherwise have been paid.
(l) "Director" means a member of the Board of Directors of the
Company who is not an employee of the Company.
(m) "Director Fee" means retainer, committee meeting fees or any
other form of cash compensation payable by the Company to Directors as a result
of their service on the Board.
(n) "Disability" means either a physical or mental disability as a
result of which, at least 180 days after commencement of such disability, the
Participant is determined, by a physician selected by the Company and acceptable
to the Participant or the Participant's legal representative, to be totally and
permanently disabled.
(o) "Election" means an affirmative election made by an Eligible
Employee or Director on a deferral election form provided by the Committee with
respect to which the Eligible Employee or Director may elect Deferred Amounts
under this Plan.
(p) "Eligible Employee" means (i) an employee who (A) is designated
by the Committee as belonging to a "select group of management or highly
compensated employees," as such phrase is defined under ERISA; (B) receives a
Base Salary of $100,000 or more during the twelve months immediately preceding
the applicable Plan Year; and (C) is employed by the Company, a Subsidiary or an
Affiliated Entity on December 31 preceding the applicable Plan Year; or (ii) an
employee who is otherwise determined by the Committee to be eligible to
participate in the Plan.
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(q) "Employer" shall mean the Company and/or any Subsidiary or
Affiliated Entity that employs a Participant.
(r) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
(s) "Participant" means an Eligible Employee or Director who has
Deferred Amounts credited to an Account under this Plan.
(t) "Plan" means this Chesapeake Energy Corporation Deferred
Compensation Plan, as amended from time to time.
(u) "Plan Year" means the 12-month period beginning on January 1st
and ending on December 31st.
(v) "Retirement Date" means the date a Participant is at least age
55 and performed at least 10 years of service with the Company, a Subsidiary or
an Affiliated Entity.
(w) "Stock" means Chesapeake Energy Corporation common stock.
(x) "Subsidiary" shall have the same meaning set forth in Section
424 of the Code.
(y) "Trust" shall mean a "grantor trust" as defined in Section 671
of the Code, which may be established by the Company to provide a source of
funding for amounts deferred hereunder.
(z) "Valuation Date" means the close of business on the applicable
business day assuming daily valuation of Accounts.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
The Committee shall provide Eligible Employees and Directors selected
for participation in this Plan with notice of eligibility and permit such
Eligible Employee or Director the opportunity to make an Election pursuant to
Article IV. Notice may be given at the time and in the manner as the Committee
may determine. All determinations regarding eligibility for participation in the
Plan will be made by the Committee. The determinations of the Committee will be
final and binding. Eligible Employees and Directors who have made an Election
under this Plan shall continue as a Participant as long as there is a balance
credited to his or her Account.
ARTICLE IV
ELECTIVE DEFERRALS
4.1 Eligible Employee Elective Deferrals. Eligible Employees may make
elective deferrals with respect to the following sources in accordance with the
provisions of this Article IV:
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(a) Bonus. An Eligible Employee may elect to defer under this Plan and
the Chesapeake Energy Corporation 401(k) Make-Up Plan up to 100% of the Eligible
Employee's Bonus that may be awarded by the Company, a Subsidiary or an
Affiliated Entity. The amount deferred shall be specified as a percentage of any
Bonus which may be awarded to an Eligible Employee in a Plan Year.
(b) Base Salary. An Eligible Employee may elect to defer under this Plan
and the Chesapeake Energy Corporation 401(k) Make-Up Plan up to 60% of the
Eligible Employee's Base Salary as long as such deferral does not reduce such
Eligible Employee's Base Salary below an amount necessary to satisfy applicable
employment withholding tax obligations, benefit plan contributions, and income
tax withholding obligations.
The minimum amount of Base Salary and Bonus that may be deferred under this Plan
is $5,000.
4.2 Director Deferrals. A Director may elect to defer up to 100% of the
Director Fees otherwise payable by the Company. The amount paid shall be
specified as a percentage of the Directors Fees which may be paid in a Plan
Year.
4.3 Timing of Deferral Election. Except as may be permitted by the Code or
the regulations adopted thereunder, the Election to defer shall apply to Base
Salary and Directors Fees earned and Bonus paid during the Plan Year which
commences immediately following the year in which the Election is made.
Elections must be completed and filed before the December 1 preceding the
beginning of the Plan Year when such elections are to be applicable. Elections
shall only be applicable to Base Salary which has not been earned, and to Bonus
which has not been finally determined and/or awarded. Eligible Employees or
Directors who are selected to participate in the Plan during a Plan Year will be
permitted to participate in the Plan if an Election form is completed and filed
at least 30 days prior to the date participation in the Plan is scheduled to
commence. Elections will continue to apply to subsequent Plan Years unless and
until the Participant files a revised Election with the Committee by December 1
of the year preceding the Plan Year when the revised Election is to be
applicable.
ARTICLE V
COMPANY DISCRETIONARY CONTRIBUTIONS
The Committee may also make any contribution it so elects to a
Participant in any given Plan Year.
ARTICLE VI
PAYMENT OF BENEFITS
6.1 Payment Upon Termination or Disability.
(a) Timing. Unless otherwise distributed in accordance with the
terms of this Plan, payment of a Participant's vested Account shall commence as
described below following (i) a Participant's termination of employment for any
reason, or (ii) the date the Participant is determined by the Committee to have
incurred a Disability.
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(b) Installment Payments. If a Participant's vested Account balance
is at least $50,000 and the Participant terminates employment or becomes
Disabled after attaining the Participant's Retirement Date, the Participant is
eligible to elect annual installment payments payable over a period of 1 to 20
years. The first installment shall commence within 30 days of the calendar
quarter following the one-year anniversary of the Participant's date of
termination or date of Disability with each subsequent annual installment paid
in January of each year until all installment payments have been paid. If a
Participant qualifies for an installment payment but fails to make an effective
designation as to method of payment, the Participant's Account will be
distributed in annual installments over 10 years.
(c) Lump Sum Payment. If a Participant terminates employment for
any reason prior to his or her Retirement Date or with an Account balance less
than $50,000, payment will be made in the form of a lump sum within 30 days
following the month of the Participant's date of termination or Disability. If a
Participant terminates employment or becomes Disabled and is eligible to receive
installment payments but elects to receive payment in the form of a single lump
sum, payment will be made 13 months following the Participant's date of
termination or date of Disability. If a Participant is a Director, payment will
be made in the form of a lump sum within 30 days following the month of
termination of service to the Company.
(d) Changes in Method of Payment. The Committee, in its sole
discretion, may permit a different method of payment if a Participant is
determined by the Committee to be subject to special circumstances. The method
of payment may be changed from time to time by the Participant, but in no event
will such change be considered valid if the change occurs within the 12-month
period prior to the date payment is scheduled to commence without the approval
of the Committee.
6.2 Scheduled In-Service Withdrawal. A Participant may schedule
distribution of the Deferred Amounts attributable to a particular Plan Year
("Scheduled In-Service Withdrawal") to commence in January at least two years
after the end of the Plan Year in which deferrals were made. Participants must
request a Scheduled In-Service Withdrawal on the deferral election form that is
submitted for that Plan Year. If a Participant fails to elect a Scheduled
In-Service Withdrawal prior to the date deferrals begin for that Plan Year, that
Participant will not be eligible to obtain a Scheduled In-Service Withdrawal for
deferrals made in such Plan Year.
(a) Payment Method. The Participant may elect either a lump sum
payment or, if the distribution requested is at least $25,000, annual
installment payments for a period of 2 to 10 years.
(b) Postponement. A Participant may postpone payment of a Scheduled
In-Service Withdrawal to a date at least one year later than the previously
Scheduled In-Service Withdrawal date by filing a written request with the
Committee at least one year prior to the date the Scheduled In-Service
Withdrawal is scheduled to begin.
(c) Cancellation. If the Participant terminates employment or is
determined by the Committee to have incurred a Disability, payment of the
Participant's Account shall be determined with respect to elections made in
reference to termination in accordance with Section
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6.1, without regard to the otherwise Scheduled In-Service Withdrawal which shall
be deemed to be cancelled.
6.3 Payment to Beneficiary. If a Participant dies with a vested balance
credited to the Participant's Account, such balance shall be paid to the
Participant's Beneficiary in a lump sum.
6.4 Beneficiary Designations. A Participant shall designate on a
beneficiary designation form provided by the Committee a Beneficiary who, upon
the Participant's death, will receive payments that otherwise would have been
paid to the Participant under the Plan. All Beneficiary designations must be in
writing. Beneficiary designations will be effective only if and when delivered
to the Committee during the lifetime of the Participant. A Participant may
change a Beneficiary or Beneficiaries by filing a new beneficiary designation
form. The latest beneficiary designation form shall apply to the Account of the
Participant. If a Beneficiary of a Participant predeceases the Participant, the
designation of such Beneficiary shall be void. If a Beneficiary to whom benefits
under the Plan remain unpaid dies after the Participant and the Participant
failed to specify a contingent Beneficiary on the appropriate Beneficiary
designation form, the balance of the Participant's Account will be paid to such
Beneficiary's estate. If a Participant fails to designate a Beneficiary or if
such designation is ineffective, in whole or in part, any payment that otherwise
would have been paid to such Participant shall be paid to the Participant's
estate.
6.5 Changes in Payment Date.
(a) Emergency. If the Participant experiences an unforeseeable
emergency, payment of the Participant's Account attributable to Deferred
Amounts, prior to the Participant's termination date may occur with the approval
of the Committee subject to the following conditions:
(i) The minimum emergency withdrawal is the lesser of $25,000
or 100% of the Account balance;
(ii) The Participant must submit a written request to the
Committee at least 30 days prior to the date the Participant requests payment.
The written notice must state the reason necessitating the early payment and
provide documentation that the financial hardship cannot be satisfied by other
assets;
(iii) The emergency must result from a severe financial hardship
to the Participant resulting from (1) a sudden and unexpected illness or
accident of the Participant or of a dependent (as defined in Section 152(a) of
the Code) of the Participant, (2) loss of the Participant's property due to
casualty, or (3) other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant. The need to
send a Participant's child to college or the desire to purchase a home shall not
be considered emergencies for purposes of this Subsection 6.5(a);
(iv) The decision whether to allow an emergency withdrawal from
the Participant's Account shall be made in the sole and absolute discretion of
the Committee; and
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(v) In the event a Participant receives an emergency payment,
all deferrals elected for such Plan Year shall cease, and the Participant shall
not be eligible to participate in the Plan for the balance of the Plan Year and
one additional Plan Year.
(b) Nonscheduled Withdrawal. A Participant may request an
unscheduled distribution of not less than 25% of the portion of his Account
attributable to Deferred Amounts. However, the distribution will be subject to a
10% penalty of the amount requested. In the event a Participant requests a
nonscheduled withdrawal, (i) all deferrals under this Plan for such Plan Year
shall cease, (ii) the Participant shall not be eligible to participate in the
Plan for the balance of the Plan Year and one additional Plan Year, and (iii)
the Participant shall forfeit the portion of Company Discretionary Contributions
(vested and unvested) held in the Participant's Account in proportion to the
Deferred Amounts distributed to the Participant.
ARTICLE VII
ACCOUNTS AND INVESTMENT
7.1 Establishment of Account. There shall be established and maintained
by the Company a separate Account in the name of each Participant who has
elected to defer Base Salary or Bonus under the terms of this Plan.
7.2 Balance of Account. The balance of each Participant's Account shall
include Deferred Amounts and any Company Discretionary Contributions plus income
and gains credited with respect to the deemed investments selected by the
Participant based on the benchmark funds provided by the Committee. Losses from
the deemed investments shall reduce the Participant's Account balance. The
balance of each Participant's Account shall be determined as of each Valuation
Date.
7.3 Investment Direction - Deferred Amounts. The Committee may, in its
sole discretion, offer more than one benchmark fund as a deemed investment
alternative. If the Committee elects to offer more than one deemed investment
alternative, on such form as the Committee prescribes, each Participant may
select among the different benchmark funds for Deferred Amounts. However, the
Committee is not required to accept the deemed investments made by the
Participant. No actual investments shall be made by Participants. The deemed
investments in benchmark funds are only for the purpose of determining the
Company's payment obligation under the Plan. A Participant who has a choice of
more than one such benchmark fund may, as frequently as daily, modify his deemed
investment election of benchmark funds through a procedure designated by the
Committee. Such modification will be in accordance with rules and procedures
adopted by the Committee. The balance of each Participant's Account shall be
deemed invested in one or more benchmark funds on each Valuation Date, and
income or losses shall accrue on such balance upon such date, from the previous
Valuation Date.
7.4 Investment of Company Contributions. The Committee will determine how
Company Discretionary Contributions will be invested. A Participant may not
elect to diversify the portion of his Account attributable to Company
Discretionary Contributions. If the Committee determines that a Company
Discretionary Contribution will be invested in Stock, on the last day of the
applicable calendar quarter the Company shall transfer to the trustee of the
Trust cash equal to the amount of the Company Discretionary Contribution for the
quarter. The
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trustee shall purchase shares of Stock on the open market on the last business
day of each calendar quarter. Shares of Stock shall be issued in the name of the
trustee of the Trust. During the period that Stock is held by the trustee, cash
dividends will not be paid with respect to such Stock and Stock dividends will
not be reinvested in the Participant's Account. During the period Stock is held
by the Trust, Participants will not have the right to vote such shares of Stock
and the Participant will not have any other incidents of ownership or rights as
a shareholder with respect to such Stock. Distributions of the Participant's
Account balance attributable to Company Discretionary Contributions that were
initially invested in Stock will be made in Stock.
7.5 Vesting.
(a) Deferred Amounts. Subject to the conditions and limitations on
payment of benefits under the Plan, a Participant shall always have a fully
vested and nonforfeitable beneficial interest in the balance standing to the
credit of the Participant's Account attributable to Deferred Amounts and income,
earnings or losses thereon.
(b) Company Discretionary Contributions. Company Discretionary
Contributions shall vest as determined by the Committee upon the grant of a
Company Discretionary Contribution. If a Participant terminates employment prior
to vesting, the unvested Company Discretionary Contributions and any income,
earnings or losses thereon shall be forfeited. Forfeited amounts shall be used
to offset future contributions by the Company. In the event termination is due
to death, Disability or retirement, the Committee may, in its sole and absolute
discretion, accelerate vesting. The Committee may also, in its sole and absolute
discretion, accelerate vesting upon termination for any reason. Upon the
occurrence of a Change of Control, all Participants shall be deemed to be 100%
vested in all Company Discretionary Contributions credited to their Account.
7.6 Account Statements. The Committee shall provide each Participant
with a statement of the status of the Participant's Account under the Plan. The
Committee shall provide such statement quarterly or at such times as the
Committee may determine. Account statements shall be in the format prescribed by
the Committee.
ARTICLE VIII
ADMINISTRATION
8.1 Administration. The Plan shall be administered, construed and
interpreted by the Committee. The Committee shall have the sole authority and
discretion to determine eligibility for benefits and to construe the terms of
the Plan. The determinations by the Committee as to any disputed questions
arising under the Plan, including the eligibility to become a Participant in the
Plan and the amounts of benefits under the Plan, and the construction and
interpretation by the Committee of any provision of the Plan, shall be final,
conclusive and binding upon all persons including Participants, their
beneficiaries, the Company, its stockholders and employees and the Employers.
8.2 Indemnification and Exculpation. The members of the Committee and its
agents shall be indemnified and held harmless by the Company against and from
any and all loss, cost, liability or expense that may be imposed upon or
reasonably incurred by them in connection with
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or resulting from any claim, action, suit or proceeding to which they may be a
party or in which they may be involved by reason of any action taken or failure
to act under this Plan and against and from any and all amounts paid by them in
settlement (with the Company's written approval) or paid by them in satisfaction
of a judgment in any such action, suit or proceeding. The foregoing provisions
shall not be applicable to any person if the loss, cost, liability or expense is
due to such person's gross negligence or willful misconduct.
8.3 Rules of Conduct. The Committee shall adopt rules for the conduct of
its business and the administration of this Plan as it considers desirable,
provided they do not conflict with the provisions of this Plan.
8.4 Legal, Accounting, Clerical and Other Services. The Committee may
authorize one or more of its members or any agent to act on its behalf and may
contract for legal, accounting, clerical and other services to carry out this
Plan. The Company shall pay all expenses of the Committee.
8.5 Records of Administration. The Committee shall keep or designate
another party to keep records reflecting the administration of this Plan which
shall be subject to audit by the Company.
8.6 Expenses. The expenses of administering the Plan shall be borne by the
Company.
8.7 Liability. No member of the Board or of the Committee shall be liable
for any act or action, whether of commission or omission, taken by any other
member, or by any officer, agent, or employee of the Company or of any such
body, nor, except in circumstances involving his bad faith, for anything done or
omitted to be done by himself.
8.8 Claims Review Procedures. The following claim procedures shall apply
until such time as a Change of Control has occurred. During the 24-month period
following a Change of Control, these procedures shall apply only to the extent
the claimant requests their application. After the expiration of the 24-month
period following a Change of Control, then, these procedures shall again apply
until the occurrence of a subsequent Change of Control.
(a) Denial of Claim. If a claim for benefits is wholly or partially
denied, the claimant shall be given notice in writing of the denial within a
reasonable time after the receipt of the claim, but not later than 90 days after
the receipt of the claim. However, if special circumstances require an
extension, written notice of the extension shall be furnished to the claimant
before the termination of the 90-day period. In no event shall the extension
exceed a period of 90 days after the expiration of the initial 90-day period.
The notice of the denial shall contain the following information written in a
manner that may be understood by a claimant:
(i) The specific reasons for the denial;
(ii) Specific reference to pertinent Plan provisions on which
the denial is based;
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(iii) A description of any additional material or information
necessary for the claimant to perfect his claim and an explanation of why such
material or information is necessary;
(iv) An explanation that a full and fair review by the
Committee of the denial may be requested by the claimant or his authorized
representative by filing a written request for a review with the Committee
within 60 days after the notice of the denial is received; and
(v) If a request for review is filed, the claimant or his
authorized representative may review pertinent documents and submit issues and
comments in writing within the 60-day period described in Section 8.8(a)(iv).
(b) Decisions After Review. The decision of the Committee with
respect to the review of the denial shall be made promptly and in writing, but
not later than 60 days after the Committee receives the request for the review.
However, if special circumstances require an extension of time, a decision shall
be rendered not later than 120 days after the receipt of the request for review.
A written notice of the extension shall be furnished to the claimant prior to
the expiration of the initial 60-day period. The claimant shall be given a copy
of the decision, which shall state, in a manner calculated to be understood by
the claimant, the specific reasons for the decision and specific references to
the pertinent Plan provisions on which the decision is based.
(c) Other Procedures. Notwithstanding the foregoing, the Committee
may, in its discretion, adopt different procedures for different claims without
being bound by past actions. Any procedures adopted, however, shall be designed
to afford a claimant a full and fair review of his claim and shall comply with
applicable regulations under ERISA.
8.9 Finality of Determinations; Exhaustion of Remedies. To the extent
permitted by law, decisions reached under the claims procedures set forth in
Section 8.8 shall be final and binding on all parties. No legal action for
benefits under the Plan shall be brought unless and until the claimant has
exhausted his remedies under Section 8.8. In any such legal action, the claimant
may only present evidence and theories which the claimant presented during the
claims procedure. Any claims which the claimant does not in good faith pursue
through the review stage of the procedure shall be treated as having been
irrevocably waived. Judicial review of a claimant's denied claim shall be
limited to a determination of whether the denial was arbitrary, capricious or an
abuse of discretion based on the evidence and theories the claimant presented
during the claims procedure. This Section shall have no application during the
24-month period following a Change of Control as to a claim which is first
asserted or first denied after the Change of Control and, as to such a claim,
the de novo standard of judicial review shall apply. After the expiration of the
24-month period following a Change of Control, then, this Section shall again
apply until the occurrence of a subsequent Change of Control.
8.10 Effect of Fiduciary Action. The Plan shall be interpreted by the
Committee and all Plan fiduciaries in accordance with the terms of the Plan and
their intended meanings. However, the Committee and all Plan fiduciaries shall
have the discretion to make any findings of fact needed in the administration of
the Plan, and shall have the discretion to interpret or
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construe ambiguous, unclear or implied (but omitted) terms in any fashion they
deem to be appropriate in their sole judgment. Except as stated in Section 8.9,
the validity of any such finding of fact, interpretation, construction or
decision shall not be given de novo review if challenged in court, by
arbitration or in any other forum, and shall be upheld unless clearly arbitrary
or capricious. To the extent the Committee or any Plan fiduciary has been
granted discretionary authority under the Plan, the Committee's or Plan
fiduciary's prior exercise of such authority shall not obligate it to exercise
its authority in a like fashion thereafter. If any Plan provision does not
accurately reflect its intended meaning, as demonstrated by consistent
interpretations or other evidence of intent, or as determined by the Committee
in it sole and exclusive judgment, the provision shall be considered ambiguous
and shall be interpreted by the Committee and all Plan fiduciaries in a fashion
consistent with its intent, as determined by the Committee in its sole
discretion. The Committee, without the need for Board's approval, may amend the
Plan retroactively to cure any such ambiguity. This Section may not be invoked
by any person to require the Plan to be interpreted in a manner which is
inconsistent with its interpretation by the Committee or by any Plan
fiduciaries. All actions taken and all determinations made in good faith by the
Committee or by Plan fiduciaries shall be final and binding upon all persons
claiming any interest in or under the Plan. This Section shall not apply to
fiduciary or Committee actions or interpretations which take place or are made
during the 24-month period following a Change of Control. After the expiration
of the 24-month period following a Change of Control, then, this Section shall
again apply until the occurrence of a subsequent Change of Control.
ARTICLE IX
GENERAL PROVISIONS
9.1 Effect on Other Plans. Deferred Amounts shall not be considered as
part of a Participant's compensation for the purpose of any qualified defined
contribution or defined benefit plan maintained by the Company, a Subsidiary or
an Affiliated Entity in the Plan Year in which any deferral occurs under this
Plan, and such amounts will not be considered under the Company's qualified
defined contribution or defined benefit plans in the Plan Year in which payment
occurs. However, such amounts may be taken into account under all other employee
benefit plans maintained by the Company, a Subsidiary or an Affiliated Entity in
the year in which such amounts would have been payable absent the deferral
election; provided, such amounts shall not be taken into account if their
inclusion would jeopardize the tax-qualified status of the plan to which they
relate.
9.2 Conditions of Employment Not Affected by Plan. The establishment and
maintenance of the Plan shall not be construed as conferring any legal rights
upon any Participant to the continuation of employment with the Company, nor
shall the Plan interfere with the rights of the Company to discharge any
Participant with or without cause.
9.3 Restrictions on Alienation of Benefits. No right or benefit under
this Plan shall be subject to anticipation, alienation, sale, assignment,
pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell,
assign, pledge, encumber, or charge the same shall be void. No right or benefit
hereunder shall in any manner be liable for or subject to the debts, contracts,
liabilities, or torts of the person entitled to such benefit. If any Participant
or the Participant's Beneficiary under this Plan should become bankrupt or
attempt to anticipate, alienate, sell,
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assign, pledge, encumber, or charge any right to a benefit hereunder, then, such
right or benefit shall cease and terminate.
9.4 Funding. The benefits described in this Plan are obligations of the
Employers to pay compensation for services, and shall constitute a liability to
the Participants and/or their Beneficiaries in accordance with the terms hereof.
All amounts paid under this Plan shall be paid in cash from the general assets
of the Employers and shall be subject to the general creditors of the Company
and the Employer of the Participant. Benefits shall be reflected on the
accounting records of the Employers but shall not be construed to create, or
require the creation of, a trust, custodial or escrow account. No Participant
shall have any right, title or interest whatever in or to any investment
reserves, accounts, funds or assets that the Employer may purchase, establish or
accumulate to aid in providing the benefits described in this Plan. Nothing
contained in this Plan, and no action taken pursuant to its provisions, shall
create or be construed to create a trust or a fiduciary relationship of any kind
between an Employer or the Company and a Participant or any other person.
Provided, the Company may establish and/or continue the Trust. Neither a
Participant nor the Beneficiary of a Participant shall acquire any interest
hereunder greater than that of an unsecured creditor of the Company, a
Subsidiary or any Affiliated Entity who is the Employer of such Participant.
9.5 Construction. Except when otherwise indicated by the context, any
masculine terminology when used in the Plan shall also include the feminine
gender, and the definition of any term in the singular shall also include the
plural.
9.6 Severability. If any provision of the Plan is held invalid or illegal
for any reason, any illegality or invalidity shall not affect the remaining
provisions of the Plan, and the Plan shall be construed and enforced as if the
illegal or invalid provision had never been contained therein. The Company shall
have the privilege and opportunity to correct and remedy such questions of
illegality or invalidity by amendment.
9.7 Tax Consequences Not Guaranteed. The Company does not warrant that
this Plan will have any particular tax consequences for Participants or
Beneficiaries and shall not be liable to them if tax consequences they
anticipate do not actually occur. The Company shall have no obligation to
indemnify a Participant or Beneficiary for lost tax benefits (or other damage or
loss) in the event the Plan is amended or terminated as permitted under Section
10.1, accelerated, or because of change in Plan design or funding; e.g.,
establishment of a "secular trust."
9.8 Tax Withholding. The Employer may withhold from a payment or accrued
benefit or from the Participant's other compensation any federal, state, or
local taxes required by law to be withheld with respect to such payment or
accrued benefit and such sums as the Employer may reasonably estimate as
necessary to cover any taxes for which the Employer may be liable and which may
be assessed with regard to Deferred Amounts or payments under this Plan.
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9.9 Articles and Section Titles and Headings. The titles and headings at
the beginning of each Article and Section shall not be considered in construing
the meaning of any provisions in this Plan.
9.10 Governing Law. This Plan is subject to ERISA, but is exempt from most
parts of ERISA since it is an unfunded deferred compensation plan maintained for
a select group of management or highly compensated employees. In no event shall
any references to ERISA in the Plan be construed to mean that the Plan is
subject to any particular provisions of ERISA. The Plan shall be governed and
construed in accordance with federal law and the laws of the State of Oklahoma,
except to the extent such laws are preempted by ERISA.
ARTICLE X
AMENDMENT AND TERMINATION
10.1 Amendment and Termination. The Committee may amend, modify or
terminate the Plan at any time and in any manner. No amendment may reduce the
then vested Account balance of any Participant. In the event of a termination of
the Plan, no further deferrals shall be made under the Plan. Amounts which are
then payable or which become payable under the terms of the Plan shall be paid
in a lump sum.
10.2 Change of Control. If a Change of Control occurs, the Plan shall
terminate at the time of such event and the Participant Accounts will be
distributed in a lump sum unless the Committee elects to continue the Plan.
IN WITNESS WHEREOF, the Company and each Employer have caused this
instrument to be executed by their duly authorized officers in a number of
copies, each of which shall be deemed an original but all of which shall
constitute one and the same instrument, this 3rd day of December, 2002, but
effective as of January 1, 2003.
CHESAPEAKE ENERGY CORPORATION, an
Oklahoma corporation
By: /s/ Martha A. Burger
------------------------------
Martha A. Burger, Treasurer and Senior Vice
President - Human Resources
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