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Benefits Trust Agreement, Amended And Restated

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Sectors: Energy
Governing Law: Texas, View Texas State Laws
Effective Date: November 05, 2008
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EXHIBIT 10(lvi)

ANADARKO PETROLEUM CORPORATION

BENEFITS TRUST AGREEMENT (AS AMENDED AND RESTATED

EFFECTIVE AS OF NOVEMBER 5, 2008)

TABLE OF CONTENTS

PAGE ARTICLE 1 5 ESTABLISHMENT AND COMPANY CONTRIBUTIONS 5 1.1 Establishment 5 1.2 Trust Irrevocable 5 1.3 Status of the Trust 5 1.4 Company Contributions 5 1.5 Trustee' s Acceptance 5 1.6 Trust Agreement Given Precedence Over Any Plan Document 6 ARTICLE 2 6 DEFINITIONS 6 2.1 Affiliated Entity 6 2.2 Beneficiary 6 2.3 Board 6 2.4 Change of Control 6 2.5 Code 6 2.6 Company 6 2.7 Current Aggregate Accrued Obligations 6 2.8 Current Year Obligations 6 2.9 Effective Date 6 2.10 ERISA 6 2.11 Insolvency or Insolvent 6 2.12 Investment Manager 7 2.13 Participant 7 2.14 Payment and Obligation Schedule 7 2.15 Trust 7 2.16 Trust Agreement 7 2.17 Trust Fund 7 2.18 Trustee 7 ARTICLE 3 7 PAYMENTS TO PARTICIPANTS AND THEIR BENEFICIARIES 7 3.1 Payment and Obligation Schedule 7 3.2 Company Determination of Benefits 8 3.3 Payment of Benefits by the Company 8 ARTICLE 4 8 PAYMENTS TO COMPANY 8 4.1 Reversions to Company 8 4.2 Restrictions on Reversion 9 ARTICLE 5 9 MANAGEMENT OF THE TRUST FUND 9


i 5.1 The Trust Fund 9 5.2 Investment in Company Securities in the Trust Fund 9 5.3 Investment Substitution 10 5.4 Accounting 10 5.5 Trustee' s General Powers Rights and Duties 11 5.6 Common Fund 13 5.7 Compensation and Expenses 13 5.8 Insurance 13 5.9 Trustee Only Responsible for Assets Received 14 5.10 Carrying on a Business 14 5.11 Proof of Trustee' s Authority 14 5.12 Maintenance of Trust' s Records 14 5.13 Trustee' s Accounting Reports to Company 14 ARTICLE 6 14 INVESTMENT FUNDS AND INVESTMENT MANAGERS 14 6.1 Investment Funds 14 6.2 Investment Managers 15 ARTICLE 7 16 ADMINISTRATION OF THE TRUST 16 7.1 Directions 16 7.2 Expenses of Administration 16 7.3 Accumulation Trust 16 7.4 Investment of Trust Fund 17 7.5 Legal Ownership 17 7.6 Denial of Claim 17 7.7 Arbitration 19 7.8 Missing Persons 19 ARTICLE 8 19 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT 19 8.1 Insolvency 19 8.2 Claims of General Creditors 20 8.3 Resumption of Payments to Participants 21 ARTICLE 9 21 RESIGNATION OR REMOVAL OF TRUSTEE 21 9.1 Resignation or Removal of Trustee 21 9.2 Successor Trustee 21 9.3 Duties of Predecessor Trustee and Successor Trustee 21 ARTICLE 10 22 EFFECT OF CHANGE OF CONTROL 22 10.1 Potential Change of Control 22 10.2 Change of Control 22


ii 10.3 Funding Upon a Change of Control 23 10.4 Elimination of Investment Restrictions and Changes to Article 6 Upon a Change of Control 23 10.5 Amendment of Trust Agreement Without Consent of Participants 24 10.6 Amendment of Trust Agreement With Consent of Participants 24 10.7 Additional Participants 24 10.8 Notification of Potential Change of Control or a Change of Control 24 ARTICLE 11 25 AMENDMENT OR TERMINATION 25 11.1 Amendment 25 11.2 Termination 25 11.3 Duration 26 11.4 Distribution upon Termination 26 11.5 Consolidation or Merger of the Company 26 ARTICLE 12 26 LIABILITY AND INDEMNIFICATION 26 12.1 Liabilities Mutually Exclusive 26 12.2 Indemnification 26 12.3 Trustee' s Actions Conclusive 27 ARTICLE 13 27 MISCELLANEOUS 27 13.1 Severability 27 13.2 Nonalienation 27 13.3 Governing Law 27 13.4 Evidence 27 13.5 Notice and Waiver of Notice 27 13.6 Counterparts 28 13.7 Gender and Number 28 13.8 Scope of this Agreement 28 13.9 Statutory References 28 13.10 Merger of Trustee 28 13.11 Construction 28 13.12 Situs 28 13.13 Trust Not an Employment Contract with Participants 28 13.14 Spendthrift Provisions 29


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ANADARKO PETROLEUM CORPORATION

BENEFITS TRUST AGREEMENT

THIS BENEFITS TRUST AGREEMENT (" Agreement" ) was originally entered into on the 15th day of May of 1995, by and between Anadarko Petroleum Corporation, a Delaware corporation (the " Company" ) and Wachovia Bank of North Carolina, N.A., currently Wachovia Bank, National Association, (the " Trustee" ), as the " Anadarko Petroleum Corporation Executives and Directors Benefits Trust Agreement" , and is now hereby amended, restated and renamed as the " Anadarko Petroleum Corporation Benefits Trust Agreement" , effective as of November 5, 2008 (the " Effective Date" ).

W I T N E S S E T H:

WHEREAS , the Company has adopted the nonqualified deferred compensation plans, employment agreements and other arrangements listed in Appendix A to this Agreement and may hereafter adopt, amend and add to Appendix A any additional nonqualified deferred compensation plans, employment agreements or other arrangements that are intended to provide certain benefits to (i) a select group of management or highly compensated employees for purposes of certain exemptions provided under Title I of ERISA (as herein defined) and (ii) directors of the Board (as herein defined) (collectively, the " Plans" , individually a " Plan" ); and

WHEREAS , the Company has incurred or expects to incur liability under the terms of the Plans with respect to the individuals and/or their Beneficiaries (as herein defined) who are Participants (as herein defined) in such Plans (including individuals who are no longer employed with the Company but who continue to have a right to receive benefits under a Plan); and

WHEREAS , the Company desires to continue to be the grantor of the Trust (as herein defined) and to contribute assets to the Trust that shall be held therein, subject to the claims of the Company' s creditors in the event of the Company' s Insolvency (as herein defined) until paid to Participants in such manner and at such times as specified in the Plans; and

WHEREAS , it is the intention of the parties that the Trust shall not affect the status of the Plans as unfunded plans maintained to provide nonqualified deferred compensation for (i) a select group of management or highly compensated employees for purposes of Title I of ERISA and (ii) directors of the Board; and

WHEREAS , the Company has agreed to take steps to assure that the future payment of all amounts due under the Plans will not be improperly withheld in the event that a Change of Control (as herein defined) of the Company should occur; and

WHEREAS , for purposes of assuring that such payments will not be improperly withheld, the Company desires to deposit with the Trustee, subject to the claims of the Company' s existing or future general creditors in the event of Insolvency, cash and other property contributions for the payment of the fees and expenses of the Trust and benefits due under the Plans;


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NOW, THEREFORE , the parties do hereby amend and restate the Agreement under the form of this document, without a gap or lapse in the continuation of the Trust, as follows:

ARTICLE 1 ESTABLISHMENT AND COMPANY CONTRIBUTIONS

1.1 Establishment . The Company has deposited, and may make additional deposits, with the Trustee in Trust such cash or other property as it deems appropriate, which shall be held, administered and disposed of by the Trustee as provided in this Agreement.

1.2 Trust Irrevocable . The Trust shall be irrevocable and shall be held for the exclusive purpose of providing benefits under a Plan to Participants and defraying the Trust' s expenses in accordance with the provisions of this Trust Agreement. No part of the income or corpus of the Trust Fund shall be recoverable by the Company, except as provided in Section 4.1 .

1.3 Status of the Trust . The Trust is intended to be a grantor trust under Sections 671-677 of the Code, and the Company, as grantor, shall be the " owner" within the meaning of those provisions. The Company shall file its federal income tax returns in a manner consistent with those provisions of the Code. The Trust Agreement shall also be construed in a manner consistent with such provisions. The principal of the Trust, and any earnings thereon, shall continue to be assets of the Company but held separate and apart from other funds of the Company and shall be used exclusively as herein set forth. Participants shall have no preferred claim on, or any beneficial ownership interest in, the Trust. Any rights created under any Plan and this Agreement shall be mere unsecured contractual rights of Participants against the Company. The Trust will be subject to the claims of the Company' s general creditors under federal and state law in the event of Insolvency. All interest and other income earned on the investment of the Trust Fund shall be the property of, and taxable to, the Company. All taxes on or with respect to the Trust shall be payable by the Company from separate funds and shall not be a charge against the Trust. 1.4 Company Contributions . From time to time in its discretion, the Company shall contribute cash or other property as deemed appropriate by the Company to the Trust to be held, administered and disposed of by the Trustee as provided in this Agreement. Except as specifically provided in this Agreement, neither the Trustee nor any Participant shall have any right to compel the Company to make contributions to the Trust. Once contributed to the Trust, the assets shall immediately become subject to the terms and provisions of this Agreement.

1.5 Trustee' s Acceptance . The Trustee accepts its duties and obligations as Trustee hereunder, agrees to accept delivery of cash and other property delivered to it by the Company pursuant to this Agreement, and agrees to hold such cash and other property and any


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proceeds from the investment of such assets to the extent not returned or paid by the Trust to the Company pursuant to Article 4 in Trust, in accordance with the terms and conditions of this Agreement.

1.6 Trust Agreement Given Precedence Over Any Plan Document . In the event of a conflict between the terms and provisions of the Trust Agreement and those of any Plan document, the Trust Agreement shall be given precedence. To the full extent possible, the terms and provisions of any Plan document and those of the Trust Agreement shall be interpreted as mutually consistent.

ARTICLE 2

DEFINITIONS

2.1 Affiliated Entity . " Affiliated Entity" means an entity that is affiliated by common ownership or control with the Company, as determined by the Company.

2.2 Beneficiary . " Beneficiary" means the person or entity designated under a Plan to receive benefits in the event of the death of the Participant.

2.3 Board . " Board" means the Board of Directors of the Company.

2.4 Change of Control . " Change of Control" means a change of control of the Company, as defined in Section 10.2 .

2.5 Code . " Code" means the Internal Revenue Code of 1986, as amended, and the regulations and other authority issued thereunder by the appropriate governmental authority. 2.6 Company . " Company" means Anadarko Petroleum Corporation, and any successor thereto. 2.7 Current Aggregate Accrued Obligations . " Current Aggregate Accrued Obligations" shall have the meaning ascribed to such term in Section 3.1 .

2.8 Current Year Obligations " Current Year Obligations" shall have the meaning ascribed to such term in Section 3.1 .

2.9 Effective Date . " Effective Date" means the effective date of this amendment and restatement of the Trust Agreement, as specified in the first paragraph hereof.

2.10 ERISA . " ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the regulations and other authority issued thereunder by the appropriate governmental authority. 2.11 Insolvency or Insolvent . " Insolvency" or " Insolvent" means that the Company is (a) unable to pay its debts as they mature or (b) is subject to a pending proceeding as a debtor under the United States Bankruptcy Code.


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2.12 Investment Manager . " Investment Manager" means, as defined in Section 3(38) of ERISA, a person, or the agent of such person, which may include an individual, corporation or other entity, who is not a Trustee, is designated by the Company, and (a) has acknowledged that it is a fiduciary with respect to the Trust Fund, (b) has the power to manage, acquire or dispose of any asset or all or any portion of the Trust Fund, and (c) is (i) registered as an investment advisor under the Investment Advisors Act of 1940, (ii) a bank (as defined in the Investment Advisors Act of 1940), or (iii) an insurance company which is qualified to manage, acquire and dispose of assets of a trust under the laws of more than one state. 2.13 Participant . " Participant" means (a) any member or former member of the Company' s Board who is participating in a Plan, or who is not currently participating or accruing benefits thereunder but who is eligible to receive benefits under a Plan in accordance with its provisions; (b) any employee or former employee of the Company or an Affiliated Entity who is participating in a Plan, or any active employee who is eligible to receive benefits under a Plan in accordance with its provisions; (c) a Beneficiary in the event of the death of such member of the Board or employee or former member of the Board or employee, or (d) any other person who is entitled to benefits under the terms of a Plan such as, for example, an alternate payee under a qualified domestic relations order as defined in Section 414(p) of the Code. 2.14 Payment and Obligation Schedule . " Payment and Obligation Schedule" shall have the meaning ascribed in Section 3.1 .

2.15 Trust " Trust" means the trust created under this Agreement, as it is maintained and administered pursuant to the terms and provisions of the Trust Agreement.

2.16 Trust Agreement " Trust Agreement" or " Agreement" means this declaration of trust, as it may be amended from time to time.

2.17 Trust Fund . " Trust Fund" means any and all property transferred to the Trustee and held by the Trustee in the Trust, including the investments thereof.

2.18 Trustee . " Trustee" means the trustee or trustees qualified and acting hereunder, or any successor or successors as appointed and serving in accordance with this Trust Agreement.

ARTICLE 3

PAYMENTS TO PARTICIPANTS AND THEIR BENEFICIARIES

3.1 Payment and Obligation Schedule . The Company may deliver, either at the beginning of each calendar year or, if prepared by a third party, as soon as practicable after receipt by the Company, to the Trustee a schedule for each Plan (the " Payment and Obligation Schedule" ) that indicates: (a) the amounts payable with respect to each Participant during such calendar year, the form in which such amount is to be paid (as provided for or available under the Plans), and the time of commencement and termination for payment of such amounts (the " Current Year Obligations" ); and


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(b) the present value (the " Current Aggregate Accrued Obligations" ) as of the December 31 immediately preceding the calendar year for which the Payment and Obligation Schedule is being prepared of the Company' s future obligations under the Plans to all then Participants based upon their service with " the Company as of such" December 31 and their compensation and other factors relevant to such present value determination as of such December 31.

3.2 Company Determination of Benefits . The entitlement of a Participant to benefits under any Plan shall be determined by the Company, and any claim by a Participant for such benefits shall be pursuant to the terms of each specific Plan.

3.3 Payment of Benefits by the Company . The Company may make payment of benefits directly to Participants as they become due under the terms of the Plans. The Company shall notify the Trustee of its decision to make payment of benefits directly prior to the time amounts are payable to Participants by the Trustee. The Company may direct the Trustee in writing to reimburse the Company from the Trust for Plan benefits paid directly to a Participant by the Company.

If for any reason the Company does not make payment of benefits directly to Participants as they become due under the terms of the Plans, the Trustee shall make such payments from the Trust in accordance with the Payment and Obligation Schedule, provided that the Trustee shall only pay in any calendar year the Current Year Obligations for such calendar year. The Trustee shall promptly notify the Company of each such payment. If payments are being made by the Trustee from the Trust to Participants and the assets of the Trust are insufficient to make all payments of benefits in accordance with the terms of the Plans, the Company shall make the balance of each such payment as it becomes due and payable. The Trustee shall promptly notify the Company when the assets of the Trust Fund are insufficient. ARTICLE 4

PAYMENTS TO COMPANY

4.1 Reversions to Company . Prior to a Change of Control, if it is determined at the end of any calendar year that the value of the Trust is greater than one hundred percent (100%) of then Current Aggregate Accrued Obligations under the Plans, the Company may direct, and the Trustee shall return to the Company, such excess assets within ten (10) days of such direction, so as to reduce the net assets of the Trust to no less than one hundred percent (100%) of the then Current Aggregate Accrued Obligations.

Following a Change of Control, if it is determined at the end of any calendar year that the value of the Trust is greater than one hundred twenty-five percent (125%) of then


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Current Aggregate Accrued Obligations under the Plans, the Company may request and the Trustee, upon its sole determination, may return to the Company within twenty (20) days of such request, such excess assets so as to reduce the net assets of the Trust to no less than one hundred twenty-five percent (125%) of the then Current Aggregate Accrued Obligations. 4.2 Restrictions on Reversion . Except as provided in this Article 4 , the Company shall have no right or power to direct the Trustee to return to the Company or to divert to others any of the assets in the Trust before payment of all benefits have been made to Participants pursuant to the terms of the Plans.

ARTICLE 5

MANAGEMENT OF THE TRUST FUND 5.1 The Trust Fund . The Trust Fund shall consist of all cash and other property acceptable to and received by the Trustee, plus any investment earnings or gains on such assets and less any investment loss or expense, benefit or disbursement paid pursuant to this Agreement. The Trustee may use a general disbursement account for distributions from the Trust without incurring any liability for payment of interest thereon, provided that the funds do not remain uninvested for an unreasonable time period, notwithstanding the Trustee' s receipt of credit or interest in respect of funds held in such disbursement account.

5.2 Investment in Company Securities in the Trust Fund . If shares of securities (including stock or rights to acquire stock) or obligations issued by the Company are contributed to the Trust, the Trustee shall have neither the right nor the power to sell or otherwise dispose of such securities without the express written consent of the Company, except for purposes of paying benefits to Participants and defraying the ordinary and necessary expenses of the Trust. Subject to applicable law and consistent with maintaining an effective tax deferral of Participant benefits, in the event that the Trust Fund holds voting securities of the Company, the Trustee, in its discretion, may solicit voting preferences from certain Participants with respect to matters that are to be presented to the Company' s common stockholders; provided, however, in all events, the Trustee shall retain the full discretion and authority to vote such Company voting securities as it deems appropriate regardless of voting preferences indicated by any Participant, or only if requested by the Trustee, as the Company or its delegate may direct.

(a) Registration . With respect to any investment of the assets in the Trust consisting of shares of the common stock of the Company (" Shares" ), the Company shall promptly prepare, and shall file with the Securities and Exchange Commission within sixty (60) calendar days after the date the Company receives a request from the Trustee, in writing, to register the Shares, a registration statement on Form S-3 under the Securities Act of 1933, as amended (the " 1933 Act" ). The Company and the Trustee, as applicable, shall use their best efforts to cause such registration statement to become effective as promptly as practicable. The Company shall (i) bear the expenses of such compliance with the 1933 Act and (ii) use its best efforts to maintain the effectiveness of such registration statement for at least thirty-six (36) months after the effective date of


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registration statement (the " Initial Effectiveness Period" ) and any subsequent thirty-six (36) month period following the Initial Effectiveness Period (the " Subsequent Effectiveness Period" ) so long as the Shares are still held in the Trust. If prior to the last day of the Initial Effectiveness Period or any Subsequent Effectiveness Period, the Shares are still held by the Trust, the Company will file a new registration statement on Form S-3 (or such other applicable registration form as may be required) under the 1933 Act prior to the end of such period. In the event that the Company cannot legally maintain the effectiveness of such registration statement at any time during the Initial Effectiveness Period or any Subsequent Effectiveness Period, the Company shall take such other reasonable steps as may be appropriate to permit the Trustee to distribute the Shares in compliance with the 1933 Act. The Trustee shall use its best efforts to comply with the 1933 Act and the rules and regulations promulgated thereunder in connection with any transfer or distribution by it of the Shares.

(b) Trading . The Company shall use its best efforts to have the Shares included in the shares of common stock of the Company listed on the New York Stock Exchange or on such other national stock exchange that the Company' s Shares are listed.

(c) Certificate Legend . Each certificate or book entry account representing any of the Shares may bear such legends, summaries or endorsements as the Company may reasonably deem appropriate and not inconsistent with the provisions of this Agreement, or as may be required to comply with any applicable law or governmental rule or regulation, or any applicable rule or regulation of the New York Stock Exchange or other exchange on which the shares are listed for trading. If requested by the Trustee, the Company shall cause any such legend to be removed promptly if at the time removal is permitted by such laws, rules or regulations.

5.3 Investment Substitution . The Company shall have the right at any time, and from time to time in its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity.

5.4 Accounting . The Company may direct the Trustee to maintain separate recordkeeping accounts for specific Plans or for all the Plans, in the name of each Participant which, pursuant to the rules established by the Company, will reflect with respect to each Participant:

(a) Deposits made by the Company to the Trust Fund; (b) Income, losses, and appreciation or depreciation in the value of Trust assets resulting from the investment of the Trust Fund;

(c) Payments made from the Trust Fund to Participants; and (d) Any other amounts charged to the accounts or accrued benefits of Participants, such as investment expenses.

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As of the end of each Plan Year, such accounts shall be appropriately adjusted in accordance with such rules to reflect the then net worth of the Trust Fund, as determined as of that Plan year end by the Trustee and reported to the Company. The value of all deferrals and earnings thereon shall be identified for each Plan and for each Participant in any Plan, on a schedule prepared by the Trustee and delivered to the Company upon a mutually agreed time schedule.

5.5 Trustee' s General Powers Rights and Duties . With respect to the Trust Fund and subject only to the limitations expressly provided in this Agreement or imposed by applicable law, the Trustee shall have the following powers, rights, and duties in addition to those vested in it elsewhere in this Agreement or by law:

(a) To invest and reinvest part or all of the Trust Fund in any real or personal property (including investments in any stocks, bonds, debentures, mutual fund shares, notes, commercial paper, treasury bills, options, commodities, futures contracts, partnership interests, venture capital investments, any common, commingled, or collective trust funds, or pooled investment funds, any interest-bearing deposits held by any bank or similar financial institution, and any other real or personal property), and to diversify such investments so as to minimize the risk of large losses unless under the circumstances it is clearly prudent not to do so;

(b) To retain in cash such amounts as the Trustee considers advisable and as are permitted by applicable laws and to deposit any cash so retained in any depository (including any bank acting as trustee) which the Trustee may select; (c) To manage, sell, insure, and otherwise deal with all real and personal property held by the Trustee on such terms and conditions as the Trustee shall decide;

(d) To vote stock and other voting securities directly or by proxy (and to delegate the Trustee' s powers and discretion with respect to such stock or other voting securities to any such proxy), to exercise subscription, conversion, and other rights and options (and make payments from the Trust Fund in connection therewith), to take any action and to abstain from taking any action with respect to any reorganization, consolidation, merger, dissolution, recapitalization, refinancing, and any other program or change affecting any property constituting a part of the Trust Fund (and in connection therewith to delegate the Trustee' s discretionary powers and to pay assessments, subscriptions, and other charges from the Trust Fund), to hold or register any property from time to time in the Trustee' s name or in the name of a nominee or to hold it unregistered and, with the approval of the Company, to borrow from anyone, including any bank acting as trustee, to the extent permitted by law, such amounts from time to time as the Trustee considers desirable to carry out this Trust (and to mortgage or pledge all or part of the Trust Fund as security);

(e) When directed by the Company or by any Investment Manager to acquire, retain, or dispose of such investments as the Company directs in accordance with this Agreement (following a Change of Control, the Company' s right to direct the Trustee under this subsection (e) shall cease);


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(f) To make payments from the Trust Fund to provide benefits that have become payable under the Plans pursuant to direction from the Company, or that are required to be made to the general creditors of the Company as set forth in Section 8.2 ; (g) With the prior written notice to the Company, to begin, maintain, or defend any litigation reasonably necessary in connection with the administration of the Trust, and the Company shall indemnify the Trustee against all reasonable expenses and liabilities sustained by the Trustee by reason of such litigation unless resulting from the negligence or intentional misconduct of Trustee;

(h) To withhold, if the Trustee considers it ad
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