Exhibit
10.4


 


NOBLE
AFFILIATES, INC.


DEFERRED COMPENSATION PLAN


 


THIS
PLAN, made and executed by NOBLE AFFILIATES, INC., a Delaware corporation (the
“Company”),


 


WITNESSETH THAT:


 


WHEREAS,
the Company has heretofore
established the Noble Affiliates Thrift Restoration Plan for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees of the Company
and its participating affiliates; and


 


WHEREAS,
the Company now desires to amend
the Noble Affiliates Thrift Restoration Plan to make certain changes;


 


NOW,
THEREFORE, in consideration of the premises and pursuant to the provisions of
Section 4.1 thereof, the Noble Affiliates Thrift Restoration Plan is hereby
amended by restatement in its entirety effective as of August 1, 2001, to read
as follows:


 


ARTICLE 1


 


Definitions


 


Unless
the context clearly indicates otherwise, when used in this Plan:


 


1.1           “Account” shall mean the account or
accounts established by an Employer for a particular Participant pursuant to
Article 3 of the Plan.


 


1.2           “Administrator” shall mean the Employee Benefits Committee or
such other person or persons appointed by the Board of Directors of the Company to administer the Plan
pursuant to Article 12 of the Plan.


 


1.3           “Applicable Employer” shall mean the
Employer that employs or last employed a Participant.


 


1.4           “Base Salary”  shall mean the annual base salary payable
to a Participant by an Employer excluding incentive and discretionary bonuses
and other non-regular forms of compensation, before reductions for
contributions to or deferrals under any pension, deferred compensation or
benefit plan sponsored by an Employer.


 


1.5           “Beneficiary”  shall mean the person(s) or entity
designated as such in accordance with Article 11 of the Plan.


 


1.6           “Bonus” shall mean amounts paid to the Participant by an
Employer under the Company’s
Short Term Incentive Plan or any other bonus designated by the Administrator
before reductions for contributions to or deferrals under any pension, deferred
compensation or benefit plan sponsored by an Employer.


 

















 


1.7           A “Change in Control” shall be deemed
to have occurred if:


 


(a)           individuals who, as of the date hereof, constitute the
Board of Directors of the Company (the “Incumbent Board”) cease for any reason
to constitute at least fifty-one percent (51%) of the Board of Directors of the
Company, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company’s stockholders
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be, for purposes of this Plan, considered as though
such person were a member of the Incumbent Board;


 


(b)           the stockholders of the Company shall approve a
reorganization, merger or consolidation, in each case, with respect to which
persons who were the stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own
outstanding voting securities representing at least fifty-one percent (51%) of
the combined voting power entitled to vote generally in the election of
directors (“Voting Securities”) of the reorganized, merged or consolidated
company;


 


(c)           the stockholders of the Company shall approve a
liquidation or dissolution of the Company or a sale of all or substantially all
of the stock or assets of the Company; or


 


(d)           any “person,” as that term is defined in Section 3(a)(9)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other
than the Company, any of its subsidiaries, any employee benefit plan of the
Company or any of its subsidiaries, or any entity organized, appointed or
established by the Company for or pursuant to the terms of such a plan),
together with all “affiliates” and “associates” (as such terms are defined in
Rule 12b-2 under the Exchange Act) of such person (as well as any “Person” or
“group” as those terms are used in Sections 13(d) and 14(d) of the Exchange
Act), shall become the “beneficial owner” or “beneficial owners” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
securities of the Company representing in the aggregate twenty-five percent
(25%) or more of either (1) the then outstanding shares of common stock, par
value $3.33-1/3 per share, of the Company (“Common Stock”) or (2) the Voting
Securities of the Company, in either such case other than solely as a result of
acquisitions of such securities directly from the Company.  Without limiting the foregoing, a person
who, directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise has or shares the power to vote, or to direct the
voting of, or to dispose, or to direct the disposition of, Common Stock or
other Voting Securities of the Company shall be deemed the beneficial owner of
such Common Stock or Voting Securities.


 


Notwithstanding the foregoing, a “Change in Control” of the Company
shall not be deemed to have occurred for purposes of subparagraph (d) of this
Section 1.7 solely as the result of an acquisition of securities by the Company
which, by reducing the number of shares of Common Stock or other Voting
Securities of the Company outstanding, increases (i) the proportionate number
of shares of Common Stock beneficially owned by any person to twenty-five
percent (25%) or more of the shares of Common Stock then outstanding or (ii)
the proportionate voting power represented by the Voting Securities of the
Company beneficially owned by any person to twenty-five percent (25%) or more
of the combined voting power of all then outstanding Voting Securities;
provided, however, that if any person referred to in clause (i) or (ii) of this
sentence shall thereafter become the


 


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beneficial
owner of any additional shares of Common Stock or other Voting Securities of
the Company (other than a result of a stock split, stock dividend or similar
transaction), then a Change in Control of the Company shall be deemed to have
occurred for purposes subparagraph (d) of this Section 1.7.


 


1.8           “Company” shall mean Noble Affiliates,
Inc., a Delaware corporation.


 


1.9           “Employer Qualified Plan Credit” shall mean the credit to Participant’s
Account established for such purposes pursuant to Section 3.2 of the Plan.


 


1.10         “Crediting Rate”  shall mean (i) for a month
commencing prior to January 1, 2002, the monthly rate that is equivalent to an
annual rate equal to 2% above the prime rate as published in The Wall Street
Journal on the first business day of such month, and (ii) for periods after
December 31, 2001, an effective annual yield equal to the greater of (1) 125%
of the 120-month rolling average of ten-year Treasury Notes or (2) the
120-month rolling average of the Prime Rate. 
The Crediting Rate for periods after December 31, 2001, shall be
determined annually by the Administrator as of the September preceding the
beginning of the Plan Year to which such rate shall apply and shall be
compounded monthly.


 


1.11         “Disability”
shall mean the total and permanent incapacity of a Participant to perform the
usual duties of his or her employment with an Employer as determined by the Administrator.  Such incapacity shall be deemed to exist
when certified by a physician acceptable to the Administrator.


 


1.12         “Eligible Employee” shall mean the President
of the Company and any other
employee of  an Employer who has been
designated by the President as an Eligible Employee for the purposes of this
Plan.


 


1.13         “Employer” shall include the Company
and any other incorporated or unincorporated trade or business that may adopt
both the Qualified Plan and this Plan.


 


1.14         “ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended.


 


1.15         “Financial
Hardship” shall mean a severe financial hardship to a Participant that
results from a sudden and unexpected illness or accident of the Participant or
of the spouse or a dependent (as defined in Section 152(a) of the Internal
Revenue Code of 1986, as amended) of the Participant, the loss of the
Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant that cannot be relieved (i) through reimbursement or
compensation by insurance or otherwise, (ii) by liquidation of the Participant’s
assets, to the extent that such liquidation would not itself cause severe
financial hardship, or (iii) by cessation of deferrals under this Plan.  Cash needs arising from foreseeable events
such as the purchase of a residence or education expenses for children shall
not, alone, be considered a Financial Hardship.


 


1.16         “Participant”
shall mean an Eligible Employee
or former Eligible Employee for whom an Account is being maintained under the
Plan.


 


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1.17         “Participant
Election Form” shall mean the form or forms which constitute a written
agreement to make a deferral and to elect the form of distributions under the
Plan submitted by the Participant to the Administrator on a timely basis
pursuant to Article 2 of the Plan.  The
Participant Election Form may take the form of an electronic communication
followed by appropriate written confirmation according to specifications
established by the Administrator.


 


1.18         “Plan
Year” shall mean the calendar year.


 


1.19         “Qualified
Plan” shall mean the Noble Affiliates Thrift and Profit Sharing Plan as
amended from time to time.


 


1.20         “Retirement”
shall mean Termination of Employment on or after the Retirement Eligibility
Date for any reason other than death or Disability.


 


1.21         “Retirement Eligibility Date”  shall
mean the earlier of (i) the date on which the Participant attains age
sixty-five (65), (ii) the date on which the Participant has both attained age
fifty-five (55) and completed at least five (5) Years of Service, or (iii) the
date on which the Participant has completed at least twenty (20) Years of
Service.


 


1.22         “Scheduled Withdrawal”  shall mean the distribution elected by
the Participant pursuant to Article 7 of the Plan.


 


1.23         “Settlement Date” shall mean the date by which a
lump sum payment shall be made or the date by which installment payments shall
commence. The Settlement Date for installment payments, a delayed Retirement
benefit or a Scheduled Withdrawal shall be the last day of January of the Plan
Year for which distribution is elected. 
The Settlement Date shall otherwise be within sixty (60) days following
the event triggering the payout.  In the
case of death, the event triggering payout shall be deemed to occur upon the
date the Administrator is provided with the documentation reasonably necessary
to establish the fact of the Participant’s death.


 


1.24         “Statutory
Limitations” shall mean any statutory, regulatory or administrative
limitation on or affecting salary reduction or matching contributions to the
Qualified Plan, or on compensation taken into account in calculating employer
or employee contributions to the Qualified Plan.


 


1.25         “Termination of Employment”  shall mean the date as of which a
Participant is no longer employed by any Employer.  Transfers of employment between Employers shall not be considered
to be a Termination of Employment for the purposes of this Plan.


 


1.26         “Unscheduled Withdrawal” shall mean a
distribution elected by the Participant pursuant to Article 8 of the Plan.


 


1.27         “Valuation
Date” shall mean the date specified by the Administrator that is no more
than sixty (60) days preceding the date a payment is to be made pursuant to the
Plan.


 


1.28         “Withdrawal Penalty” shall mean the ten percent
(10%) penalty deducted from an Account as a result of an Unscheduled Withdrawal
pursuant to Article 8 of the Plan.


 


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1.29         “Years of Service”  shall mean the cumulative consecutive
years of continuous full-time employment with the Employers, beginning on the
date the Participant first began service with an Employer, and counting each
anniversary thereof.  Transfers of employment between
Employers shall not be an interruption of continuous employment with the
Employers for the purposes of this Plan.


 


ARTICLE 2


 


Participation


 


2.1           Elective Deferral.  Each year an Eligible Employee  may elect to defer any whole percentage of
Base Salary and/or Bonus up to fifty percent (50%) of Base Salary and one
hundred percent (100%) of Bonus earned by the Participant during the Plan
Year.  If a Participant ceases to meet
the definition of an Eligible Employee, the Participant shall continue as a
Participant in the Plan but shall not be entitled to make further deferrals
under the Plan until such time as the Participant is again designated as an
Eligible Employee  by the President of the Company.


 


2.2           Participant Election Form.  In order to make a deferral, an Eligible Employee  must submit a Participant
Election Form to the Administrator during the enrollment period established by
the Administrator prior to the beginning of the period during which the Base
Salary or Bonus is earned, except that with respect to the first Plan Year to
which this amendment and restatement is applicable, the Participant shall submit
a Participant Election Form no later than thirty (30) days after the effective
date of this restatement. The Administrator may establish a special enrollment
period for an Eligible Employee  hired
during a Plan Year to allow deferrals of Base Compensation or Bonus earned
during the balance of such Plan Year after such enrollment period.  The Participant shall be required to submit
a new Participant Election Form on a timely basis in order to defer a
percentage of Bonus or to change the Participant’s deferral election with
respect to Base Salary for a subsequent Plan Year.  If no Participant Election Form is filed during the prescribed
enrollment period, the Participant’s election regarding deferral of Base Salary
for the prior Plan Year shall continue in force for the next Plan Year.  However, no election regarding Bonus shall
be applied to a subsequent Plan Year.


 


ARTICLE 3


 


Accounts


 


3.1           Participant Deferral Accounts.  Solely for recordkeeping purposes one or
more Participant Deferral Accounts (segregated based on form and timing of
payout) shall be maintained for each Participant and shall be credited with the
Participant’s deferrals directed to each Account at the time such amounts would
otherwise have been paid to the Participant. 
Amounts credited to a Participant’s Participant Deferral Account shall
be fully vested at all times and shall be deemed to be credited with notional
earnings at the Crediting Rate from the date credited to the Account through
the Valuation Date.


 


3.2           Employer Qualified Plan Credit Account.  For each Plan Year in which the Participant
makes a deferral under this Plan, the Participant’s Employer Qualified Plan
Credit Account shall be credited with an amount equal the maximum Employer
matching contributions that


 


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would
have been provided to the Participant under the Qualified Plan had the
Participant’s elected deferral under the Qualified Plan been contributed to the
Qualified Plan without regard to the Statutory Limitations.  The Employer Qualified Plan Credit for each
Plan Year shall be reduced by the amount of Employer matching contributions, if
any, actually credited to the Participant under the Qualified Plan for such
Plan Year. The Employer Qualified Plan Credit shall be credited to the
Participant’s Employer Qualified Plan Credit Account as soon as is practicable
but in no event later than the first day of the Plan Year following the Plan
Year for which the Employer matching contribution was or would have been made
under the Qualified Plan. Amounts credited to a Participant’s Employer
Qualified Plan Credit Account shall vest at the time and under the conditions
such amounts would have vested under the Qualified Plan had such contributions
been made to the Qualified Plan, and shall be deemed to be credited with
notional earnings at the Crediting Rate from the date credited to the Account
through the Valuation Date. 
Notwithstanding the foregoing, upon a Change in Control, all amounts credited
to the Participant’s Employer Qualified Plan Credit Account (including notional
earnings thereon) shall be fully vested.


 


3.3           Prior Accounts.  The amount credited to a Participant’s
Deferral Account under the Noble Affiliates Thrift Restoration Plan as of July
31, 2001, shall be credited to his or her Participant Deferral Account under
this Plan as of August 1, 2001.  The
amount credited to a Participant’s Matching Account under the Noble Affiliates
Thrift Restoration Plan as of July 31, 2001, shall be credited to his or her
Employer Qualified Plan Credit Account under this Plan as of August 1, 2001.


 


3.4           Statement of Accounts.  The Administrator shall provide each
Participant with statements at least annually setting forth the Participant’s
Account balances as of the end of each year.


 


ARTICLE 4


 


Benefits


 


4.1           Retirement Benefits.  In the event of the Participant’s
Retirement, the Participant shall be entitled to receive an amount equal to the
total balance of the Participant’s Accounts credited with notional earnings as
provided in Article 3 through the Valuation Date.  The benefit payable pursuant to this Section 4.1 shall be paid in
a single lump sum unless the Participant has made an effective election to have
the benefit paid in annual installments over a period of not more than fifteen
(15) years as specified by the Participant in such election.  An installment distribution will be paid in
annual installments determined each year by dividing the then undistributed
total balance of the Participant’s Accounts, as adjusted on each December 31
during the installment period for interest for the year then ended using the
Crediting Rate applicable for such year, by the number of remaining
installments to be paid to or with respect to such Participant.  The benefit payable to a Participant pursuant
to this Section 4.1 shall be paid or commence being paid, as the case may be,
on the Settlement Date following his or her Retirement unless such Participant
has made an effective election to defer such payment or commencement of
payments to January of one of the following five (5) Plan Years.  For the purposes of this Section 4.1, an
installment distribution or deferred payment election (and any subsequent
revocation thereof or change with respect thereto) shall be made by a
Participant on a form prescribed by and filed with (or as directed by) the
Committee; provided, however, that no such election, revocation or change shall
become effective for the purposes of the Plan unless the Participant completes
thirteen (13) months of continuous


 


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employment
with the Employers after the date of filing such election with (or as directed
by) the Committee.


 


4.2           Termination Benefit.  Upon Termination of Employment other than by
reason of Retirement, Disability or death, the Applicable Employer shall pay to
the Participant a termination benefit equal to the total vested balance of the
Participant’s Accounts credited with notional earnings as provided in Article 3
through the Valuation Date.  The
termination benefit shall be paid in a single lump sum on the Settlement Date
following the Participant’s Termination of Employment.


 


4.3           Small Benefit Exception.  Notwithstanding the foregoing, in the event
the sum of all Account balances payable to the Participant is less than fifty
thousand dollars ($50,000), the Applicable Employer may, in its sole
discretion, elect to pay such Account balances in a single lump sum payable on
the last day of the month in which such amounts first become payable.


 


ARTICLE 5


 


Death Benefits


 


5.1           Survivor Benefit Before Benefits
Commence.  If the Participant dies
prior to commencement of benefits under Articles 4, the Applicable Employer
shall pay to the Participant’s Beneficiary a death benefit equal to the total
balance on death of all of the Participant’s Accounts credited with notional
earnings as provided in Article 3 through the Valuation Date.  The death benefit shall be paid in a single
lump sum on the Settlement Date following the date the Participant’s death is
established by reasonable documentation.


 


5.2           Survivor Benefit After Benefits
Commence.  If the Participant dies
after benefits have commenced under Article 4, upon receiving reasonable
documentation of the Participant’s death the Applicable Employer shall pay to
the Participant’s Beneficiary an amount equal to the remaining benefits payable
to the Participant under the Plan over the same period such benefits would have
been paid to the Participant.  If the
Participant dies after benefits have commenced under Article 7 but prior to
complete distribution of such benefits, the remaining balance of benefits
payable under Article 7 shall be paid to the Participant’s Beneficiary in a
single lump sum on the Settlement Date following the date the Participant’s
death is established by reasonable documentation.


 


5.3           Small Benefit Exception.  Notwithstanding the foregoing, in the event
the sum of all Account balances payable to a Beneficiary is less than fifty
thousand dollars ($50,000), the Applicable Employer may, in its sole
discretion, elect to pay such Account balances in a single lump sum payable on
the last day of the month in which such amounts first become payable.


 


ARTICLE 6


 


Disability


 


6.1           Disability.  Upon a Participant’s Termination of
Employment by reason of Disability, the amounts credited to such Participant’s
Accounts shall be distributed  at the
time or times and in the manner applicable to a Retirement under the provisions
of Section 4.1 and 4.3.


 


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ARTICLE 7


 


Scheduled Withdrawal


 


7.1           Election.  The Participant may make an irrevocable
election on the Participant Election Form at the time of making a deferral of
Base Salary or Bonus to take a Scheduled Withdrawal from the Account
established by the Participant for such purpose, including any earnings
credited thereon.  The Participant may
elect to receive the Scheduled Withdrawal in any Plan Year that begins at least
two (2) years after the enrollment period in which such Scheduled Withdrawal is
elected, and may elect to have the Scheduled Withdrawal distributed over a
period of up to four (4) years.  The
Participant may irrevocably elect to make additional deferrals into such
Scheduled Withdrawal Account in subsequent Participant Election Forms that are
effective for Plan Years before the Plan Year in which the Scheduled Withdrawal
is to be made or commence being made, but may not elect another Scheduled
Withdrawal date or establish another Scheduled Withdrawal Account until all of
the amounts in the existing Scheduled Withdrawal Account have been paid
out.  No Scheduled Withdrawal shall be
available from an Employer Qualified Plan Credit Account.


 


7.2           Maximum Scheduled Withdrawal.  The Participant shall be entitled to elect a
Scheduled Withdrawal of any whole percentage up to one hundred percent (100%)
of the relevant deferral credited with notional earnings as provided in Article
3 through the Valuation Date.


 


7.3           Timing of Scheduled Withdrawal.  The Scheduled Withdrawal shall be paid by
the Applicable Employer to the Participant in the form elected beginning no
later than the last day of January of the Plan Year elected by the Participant
in the Participant Election Form unless such date is preceded by the
Participant’s Termination of Employment. In the event of a Participant’s
Termination of Employment prior to the date elected for the Scheduled
Withdrawal or prior to completion of all scheduled installment payments of such
Scheduled Withdrawal, the unpaid Scheduled Withdrawal shall be paid in the form
of a single lump sum on the Settlement Date following such Termination of
Employment.  In the event such
Termination of Employment is as a result of the Participant’s death, the
Scheduled Withdrawal shall be paid to the Participant’s beneficiary in a single
lump sum on the Settlement Date following the date the Participant’s death is
established by reasonable documentation.


 


7.4           Scheduled Withdrawal Upon Change
in Control.  Within fourteen (14)
days following the occurrence of a potential Change in Control, a Participant
may irrevocably elect, on a form prescribed by and filed with the
Administrator, to receive a distribution of the entire amount credited to each
of his or her Accounts if a Change in Control occurs during the twenty-four
(24) month period following the occurrence of said potential Change in
Control.  The distribution to be made to
a Participant pursuant to this Section shall be paid in a single lump sum no
later than sixty (60) days following the occurrence of a Change in Control
during the period to which such Participant’s election under this Section
pertains, and shall include notional earnings as provided in Article 3 through
the Valuation Date.  For the purposes of
this Section, a potential Change in Control shall be deemed to have occurred if
(i) the Company enters into an agreement or arrangement the consummation of
which would result in the occurrence of a Change in Control, (ii) any person
(within the meaning of Section 1.7(d)) publicly announces an intention to take
action the consummation of which would constitute a Change in Control, or (iii)
the Board of Directors of the


 


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Company
authorizes the taking of action the consummation of which would constitute a
Change in Control.


 


ARTICLE 8


 


Unscheduled Withdrawal


 


8.1           Election.  A Participant (or, after the Participant’s
death, a Beneficiary) may take an Unscheduled Withdrawal from a fully vested
Account at any time.  The Unscheduled
Withdrawal shall be paid no later than the last day of the month following the
month in which the Unscheduled Withdrawal is requested.  After an Unscheduled Withdrawal, a
Participant’s deferrals shall cease and the Participant shall not be allowed to
make a new deferral election until the enrollment period following one full calendar
year from the date of the Unscheduled Withdrawal.  Only one Unscheduled Withdrawal shall be permitted in each Plan
Year.


 


8.2           Withdrawal Penalty.  There shall be a Withdrawal Penalty deducted
from the Account prior to an Unscheduled Withdrawal from such Account equal to
ten percent (10%) of the Unscheduled Withdrawal.


 


ARTICLE 9


 


Financial Hardship Distribution


 


9.1           Financial Hardship Distribution.  If the Administrator determines that a
Participant has incurred a Financial Hardship, the Administrator in its sole
discretion may accelerate distributions of benefits or approve reduction or
cessation of current deferrals under the Plan in the amount reasonably
necessary to alleviate such Financial Hardship.  After a Financial Hardship distribution, a Participant’s
deferrals shall cease and the Participant shall not be allowed to make a new
deferral election until the enrollment period following one full calendar year
from the date of the Financial Hardship distribution.  No distribution shall be made to a Participant pursuant to this
Section 9.1 unless such Participant requests such a distribution in writing and
provides to the Administrator such information and documentation with respect
to his or her Financial Hardship as may be requested by the Administrator.


 


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ARTICLE 10


 


Amendment and Termination of Plan


 


10.1         Amendment or Termination of Plan.  At any time prior to a Change in Control,
the Board of Directors of the Company
may amend or terminate the Plan, provided, however, that (i) no such amendment
shall reduce the Crediting Rate applicable to a Participant’s Account balance
or installment distribution without the consent of such Participant (or, if
deceased, his or her Beneficiary), and (ii) no such amendment or termination
may reduce or further defer the payment of a Participant’s Account balance or
installment distribution without the consent of such Participant (or, if
deceased, his or her Beneficiary).  If
the Board of Directors of the Company
terminates the Plan, the date of such termination shall be treated as a
Termination of Employment for the purpose of calculating the Plan benefit
payable to a Participant, and the Applicable Employer shall pay to each
Participant or Beneficiary of a deceased Participant the benefit such
Participant or Beneficiary would be entitled to receive under Article 4 or 5 of
the Plan, except that such benefit shall be paid in a single lump sum on the
last day of the month following the month in which the termination of the Plan
occurs.  During the twenty-four (24)
month period following a Change in Control, no amendment or termination of the
Plan shall become effective with respect to a Participant or Beneficiary of a
deceased Participant without the prior written consent of such Participant or
Beneficiary.  After the twenty-four (24)
month period following a Change in
Control, the Board of Directors of the Company shall have the same right to amend or terminate the Plan
as such Board had prior to such Change
in Control.


 


ARTICLE 11


 


Beneficiaries


 


11.1         Beneficiary Designation.  The Participant shall have the right, at any time, to designate
any person or persons as Beneficiary (both primary and contingent) to whom
payment under the Plan shall be made in the event of the Participant’s
death.  The Beneficiary designation
shall be effective when it is submitted in writing to and acknowledged by the
Administrator during the Participant’s lifetime on a form prescribed by the
Administrator.


 


11.2         Revision of Designation.  The submission of a new Beneficiary designation shall cancel all
prior Beneficiary designations.  Any
finalized divorce or marriage (other than a common law marriage) of a
Participant subsequent to the date of a Beneficiary designation shall revoke
such designation, unless in the case of divorce the former spouse was not
designated as Beneficiary and unless in the case of marriage the Participant’s
new spouse has been designated as Beneficiary.


 


11.3         Successor Beneficiary.  If the primary Beneficiary dies prior to complete distribution of
the benefits provided in Article 5, the remaining Account balance shall be paid
to the contingent Beneficiary elected by the Participant in the form of a lump
sum payable no later than the last day of the month following the month in
which the primary Beneficiary’s death is established by reasonable
documentation.


 


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11.4         Absence of Valid Designation.  If a Participant fails to designate a
Beneficiary as provided above, or if the Beneficiary designation is revoked by
marriage, divorce, or otherwise without execution of a new designation, or if
every person designated as Beneficiary predeceases the Participant or dies
prior to complete distribution of the Participant’s benefits, then the
Administrator shall direct the distribution of such benefits to the
Participant’s estate.


 


ARTICLE 12


 


Administration/Claims Procedures


 


12.1         Administration. 
The Plan shall be administered by the Administrator, which shall have
the exclusive right and full discretion to (i) interpret the Plan, (ii) decide
any and all matters arising hereunder (including the right to remedy possible
ambiguities, inconsistencies, or admissions), (iii) to make, amend and rescind
such rules as it deems necessary for the proper administration of the Plan, and
(iv) to make all other determinations necessary or advisable for the
administration of the Plan, including determinations regarding eligibility for
benefits payable under the Plan. All interpretations and determinations of the
Administrator with respect to Plan matters shall be final, conclusive and
binding on all persons affected thereby. 
No person or member of any committee acting as the Administrator shall
be liable for any determination, decision or action made or taken in good faith
with respect to the Plan.


 


12.2                 Claims
Procedure.  Any Participant, former
Participant or Beneficiary may file a written claim with the Administrator
setting forth the nature of the benefit claimed, the amount thereof, and the basis
for claiming entitlement to such benefit. 
The Administrator shall determine the validity of the claim and
communicate a decision to the claimant promptly and, in any event, not later
than ninety (90) days after receipt of the claim by the Administrator.  The claim may be deemed by the claimant to
have been denied for purposes of further review described below in the event a
decision is not furnished to the claimant within such ninety (90) day period.  If additional information is necessary to
make a determination on a claim, the claimant shall be advised of the need for
such additional information within forty-five (45) days after the date of the
claim.  The claimant shall have up to
one hundred and eighty (180) days to supplement the claim information, and the
claimant shall be advised of the decision on the claim within forty-five (45)
days after the earlier of the date the supplemental information is supplied or
the end of the one hundred and eighty (180) day period.  Every claim for benefits which is denied
shall be denied by written notice setting forth in a manner calculated to be
understood by the claimant (i) the specific reason or reasons for the denial,
(ii) specific reference to any provisions of the Plan (including any internal
rules, guidelines, protocols, criteria, etc.) on which the denial is based,
(iii) description of any additional material or information that is necessary
to process the claim, and (iv) an explanation of the procedure for further
reviewing the denial of the claim (including applicable time limits and a
statement of the claimant’s right to bring an action following an adverse
determination on review).


 


12.3         Review Procedures. 
Within sixty (60) days after the receipt of a denial on a claim, a
claimant or his/her authorized representative may file a written request for
review of such denial.  Such review
shall be undertaken by the Administrator and shall be a full and fair review.
The claimant shall have the right to review all pertinent documents.  The Administrator shall issue a decision not
later than sixty (60) days after receipt of a request for review from a
claimant unless special circumstances, such as the need to hold a hearing,
require a longer period of time, in which


 


11

















 


case a decision shall be rendered as soon as
possible but not later than one hundred and twenty (120) days after receipt of
the claimant’s request for review.  The
decision on review shall be in writing and shall include specific reasons for
the decision written in a manner calculated to be understood by the claimant
with specific reference to any provisions of the Plan on which the decision is
based.


 


ARTICLE 13


 


Conditions Related to Benefits


 


13.1         Nature of Plan and Rights.  This Plan is unfunded and maintained by the Applicable Employers
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees of the Applicable Employers.  The Accounts established and maintained
under this Plan by an Applicable Employer are for its accounting purposes only,
and shall not be deemed or construed to create a trust fund or security
interest of any kind for or to grant a property interest of any kind to any
Participant, Beneficiary or estate.  The
amounts credited to Accounts maintained under this Plan by an Applicable
Employer are and for all purposes shall continue to be a part of the general
liabilities of such Applicable Employer, and to the extent that a Participant,
Beneficiary or estate acquires a right to receive a payment from an Applicable
Employer pursuant to this Plan, (i) such right shall be no greater than the
right of any unsecured general creditor of such Applicable Employer, and (ii)
such Participant, Beneficiary or estate shall have no claim against or right to
receive any payment hereunder from any other Employer.


 


13.2         Spendthrift Provision.  No Account balance or other right or interest under the Plan of a
Participant, Beneficiary or estate may be assigned, transferred or alienated,
in whole or in part, either directly or by operation of law, and no such
balance, right or interest shall be liable for or subject to any debt,
obligation or liability of such Participant, Beneficiary or estate.


 


13.3         Protective Provisions.  The Participant shall cooperate with the Applicable Employer by
furnishing any and all information requested by the Administrator in order to
facilitate the payment of benefits hereunder, taking such physical examinations
as the Administrator may deem necessary and taking such other actions as may be
requested by the Administrator.


 


13.4         Withholding. 
A Participant or Beneficiary shall make appropriate arrangements with
the Applicable Employer for satisfaction of any federal, state or local income,
employment or other tax withholding requirements applicable to the payment of
benefits under the Plan.  If no other
arrangements are made, the Applicable Employer may provide, at its discretion,
for such withholding and tax payments as may be required, including, without limitation,
by the reduction of Plan benefits or other amounts payable to the Participant
or Beneficiary.


 


13.5         Assumptions and Methodology.  The Administrator shall establish the
actuarial assumptions and method of calculation used in determining the present
or future value of benefits, earnings, payments, fees, expenses or any other
amounts required to be calculated under the terms of the Plan.  The Administrator shall also establish
reasonable procedures regarding the form and timing of installment payments.   Such assumptions and methodology shall be
outlined in detail in procedures established by the Administrator and made
available to Participants and may be changed from time to time by the
Administrator prior to a Change in
Control.  During the twenty-four
(24) month period following a Change in
Control, the Administrator shall not change such assumptions


 


12

















 


and methodology without prior written consent
of a majority of the Participants and Beneficiaries of deceased Participants
who would be affected by such change. 
After the twenty-four (24) month period following a Change in Control, the Administrator
shall have the same right to change assumptions and methodology as it did prior
to such Change in Control.


 


ARTICLE 14


 


Miscellaneous


 


14.1         Successors of the Company.  The rights and obligations of an Applicable
Employer under the Plan shall inure to the benefit of, and shall be binding
upon, the successors and assigns of such Applicable Employer.


 


14.2         Employment Not Guaranteed.  Nothing contained in the Plan nor any action taken hereunder
shall be construed as a contract of employment or as giving any Participant any
right to continued employment with any Employer.


 


14.3         Gender, Singular and Plural.  All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, or neuter, as the identity
of the person or persons may require. 
As the context may require, the singular may be read as the plural and
the plural as the singular.


 


14.4         Captions.  The
captions of the articles, paragraphs and sections of the Plan are for
convenience only and shall not control or affect the meaning or construction of
any of its provisions.


 


14.5         Validity.  In
the event any provision of the Plan is held invalid, void or unenforceable, the
same shall not affect, in any respect whatsoever, the validity of any other
provisions of the Plan.


 


14.6         Waiver of Breach. 
The waiver by an Employer of any breach of any provision of the Plan
shall not operate or be construed as a waiver of any subsequent breach by that
Participant or any other Participant.


 


14.7         Notice.  Any
notice required or permitted to be given under the Plan to an Employer, the
Administrator or a Participant or Beneficiary shall be sufficient if in writing
and hand-delivered, or sent by registered or certified mail, (i) in the case of
an Employer, to the principal office of such Employer, (ii) in the case of the
Administrator, to the principal office of the Company, directed to the
attention of the Administrator, and (iii) in the case of a Participant or
Beneficiary, to the last known address of the Participant or Beneficiary as
indicated on the records of the Administrator. 
Such notice shall be deemed given as of the date of delivery or, if delivery
is made by mail, as of the date shown on the postmark on the receipt for
registration or certification.  Notices
may also be given by electronic means in accordance with procedures established
by the Administrator.


 


14.8         Errors in Benefit Statement or Distributions.  In the event an error is made in a benefit
statement, such error shall be corrected on the next benefit statement
following the date such error is discovered. 
In the event of an error in a distribution, upon the discovery of such
error, the Participant’s Account shall immediately be adjusted to reflect such
underpayment or overpayment and, if possible, the next distribution shall be
adjusted upward or downward to correct such prior error.  If the remaining balance of a Participant’s
Account is insufficient to cover an erroneous overpayment, the Affiliated
Employer may, at its discretion, offset other amounts payable to the


 


13

















 


Participant (including but not limited to
salary, bonuses, expense reimbursements, severance benefits or other employee
compensation benefit arrangements, as allowed by law) to recoup the amount of
such overpayment.


 


14.9         Special Accelerated Distributions.  If the Internal Revenue Service assesses an
income tax deficiency against a Participant on the grounds that an amount
credited to his or her Account (the “Taxable Amount”) is subject to federal
income tax prior to the time the payment of such amount otherwise would be made
to such Participant pursuant to this Plan, the Applicable Employer shall pay
the Taxable Amount to such Participant and deduct such amount from such
Account.


 


14.10       Applicable Law. 
The Plan shall be governed and construed in accordance with the internal
laws (and not the principles relating to conflicts of laws) of the State of
Texas, except where superseded by ERISA or other applicable federal law.


 


14.11       Arbitration. 
Any claim, dispute or other matter in question of any kind relating to
this Plan which is not resolved by the claims procedures under Article 12 shall
be settled by arbitration in accordance with the applicable Employment Dispute
Resolution Rules of the American Arbitration Association.  Notice of demand for arbitration shall be
made in writing to the opposing party and to the American Arbitration
Association within a reasonable time after the claim, dispute or other matter
in question has arisen.  In no event
shall a demand for arbitration be made after the date when the applicable
statute of limitations would bar the institution of a legal or equitable
proceeding based on such claim, dispute or other matter in question.  The decision of the arbitrators shall be
final and may be enforced in any court of competent jurisdiction.  The arbitrators may award reasonable fees
and expenses to the prevailing party in any dispute hereunder and shall award
reasonable fees and expenses in the event that the arbitrators find that the
losing party acted in bad faith or with intent to harass, hinder or delay the
prevailing party in the exercise of its rights in connection with the matter
under dispute.


 


14.12       Administrator Release and Indemnity.  The Employers (i) hereby release each person
or member of a committee acting as the Administrator from any claim, cost,
expense (including reasonable attorneys’ fees and other expenses of defense),
judgment, loss or liability (including any amount paid in settlement of a claim
with the approval of the Company) incurred by an Employer, and (ii) shall joint
and severally indemnify and hold each person or member of a committee acting as
the Administrator harmless from and against any claim, cost, expense (including
reasonable attorneys’ fees and other expenses of defense), judgment, loss or
liability (including any amount paid in settlement of a claim with the approval
of the Company) incurred by such person or committee member, that arises out of
or results from any act or omission to act (including a negligent act or
omission to act) by such person or committee member relating to the performance
of his or her duties under the Plan, excluding, however, any such claim, cost,
expense, judgment, loss or liability that arises out of or results from his or
her willful misconduct or failure to act in good faith.


 


14

















 


IN
WITNESS WHEREOF, the Company has
caused this Plan to be executed to be effective as of August 1, 2001.


 


 


	
   

  	
  NOBLE
  AFFILIATES, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/
  Charles D. Davidson

  	
   

  
	
   

  	
  Its

  	
       President
  and CEO

  	
   

  



 


15