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CIMAREX ENERGY CO. DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS Effective as of May 19, 2004 Amended and Restated, Effective as of January 1, 2009

Employee Benefits Plan Agreement

CIMAREX ENERGY CO. DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS Effective as of May 19, 2004 Amended and Restated, Effective as of January 1, 2009 | Document Parties: CIMAREX ENERGY CO You are currently viewing:
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CIMAREX ENERGY CO

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Title: CIMAREX ENERGY CO. DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS Effective as of May 19, 2004 Amended and Restated, Effective as of January 1, 2009
Governing Law: Delaware     Date: 2/27/2009
Industry: Oil and Gas Operations     Sector: Energy

CIMAREX ENERGY CO. DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS Effective as of May 19, 2004 Amended and Restated, Effective as of January 1, 2009, Parties: cimarex energy co
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EXHIBIT 10.18

CIMAREX ENERGY CO.

DEFERRED COMPENSATION PLAN

FOR NONEMPLOYEE DIRECTORS

Effective as of May 19, 2004
Amended and Restated, Effective as of January 1, 2009



TABLE OF CONTENTS

 

 

 

 

Page

ARTICLE I DEFINITIONS

 

1

 

1.1

 

"ACCOUNT"

 

1

 

1.2

 

"ADMINISTRATOR"

 

1

 

1.3

 

"BENEFICIARY"

 

1

 

1.4

 

"BOARD"

 

1

 

1.5

 

"CODE"

 

1

 

1.6

 

"COMPANY"

 

1

 

1.7

 

"COMMITTEE"

 

1

 

1.8

 

"COMMON STOCK"

 

1

 

1.9

 

"DEFERRED COMPENSATION UNITS"

 

1

 

1.10

 

"DIRECTOR"

 

1

 

1.11

 

"DIRECTOR'S FEES"

 

1

 

1.12

 

"ELIGIBLE DIRECTOR"

 

1

 

1.13

 

"PARTICIPANT"

 

2

 

1.14

 

"PLAN"

 

2

 

1.15

 

"RESTRICTED STOCK"

 

2

 

1.16

 

"UNFORESEEABLE EMERGENCY"

 

2

ARTICLE II DEFERRALS

 


2

 

2.1

 

DEFERRAL ELECTIONS

 

2

 

2.2

 

ALLOCATION OF DEFERRALS

 

2

 

2.3

 

CHANGES IN DEFERRAL ELECTIONS

 

2

 

2.4

 

ACCOUNTING

 

2

ARTICLE III ACCOUNTS

 


3

 

3.1

 

ESTABLISHMENT AND NATURE OF PARTICIPANT ACCOUNTS

 

3

 

3.2

 

ACCOUNT EARNINGS

 

3

 

3.3

 

CHANGE IN OUTSTANDING SHARES

 

3

 

3.4

 

ACCOUNT STATEMENTS

 

3

ARTICLE IV VESTING

 


3

ARTICLE V DISTRIBUTIONS

 


4

 

5.1

 

TIMING AND FORM OF DISTRIBUTION

 

4

 

5.2

 

CHANGE OF CONTROL

 

4

 

5.3

 

UNFORESEEABLE EMERGENCY

 

6

 

5.4

 

PAYMENT OF BENEFITS FOLLOWING DEATH

 

6

 

5.5

 

ALTERNATE TIME OF DISTRIBUTION

 

6

ARTICLE VI ADMINISTRATION

 


6

 

6.1

 

PLAN ADMINISTRATION

 

6

 

6.2

 

CLAIMS PROCEDURE

 

7

 

6.3

 

EXPENSES

 

7

ARTICLE VII AMENDMENT, MODIFICATION AND TERMINATION

 


7

ARTICLE VIII MISCELLANEOUS

 


7

 

8.1

 

UNFUNDED PLAN

 

7

 

8.2

 

WITHHOLDING FOR TAXES AND OTHER DEDUCTIONS

 

8

 

8.3

 

NO RIGHT TO DIRECTORSHIP

 

8

 

8.4

 

NO RIGHTS AS A STOCKHOLDER. 

 

8

 

8.5

 

ALIENATION PROHIBITED

 

8

 

8.6

 

GENERAL LIMITATION OF LIABILITY

 

8

 

8.7

 

APPLICABLE LAW

 

8

 

8.8

 

SUCCESSORS AND ASSIGNS

 

8

 

8.9

 

SECTION 409A SAVINGS CLAUSE. 

 

8

i


DEFERRED COMPENSATION PLAN
FOR NONEMPLOYEE DIRECTORS

PREAMBLE

        CIMAREX ENERGY CO., a Delaware corporation (the "Company"), adopted the Cimarex Energy Co. Deferred Compensation Plan for Nonemployee Directors (the "Plan"), effective as of May 19, 2004 (the "Effective Date"), to permit nonemployee directors of its Board of Directors to defer receipt of a portion of their anticipated Director's Fees. The Company hereby amends the Plan, effective as of January 1, 2009, to bring the Plan into compliance with the applicable provisions of section 409A of the Internal Revenue Code.

ARTICLE I

DEFINITIONS

        Whenever used herein, the following terms shall have the respective meanings set forth below, unless the context clearly indicates otherwise. In addition, unless some other meaning or intent is apparent from the context, the plural shall include the singular and vice versa; and masculine, feminine, and neuter words shall be used interchangeably.

        1.1    "Account" means, with respect to each Participant, the Cash Account and the Deferred Compensation Unit Account established pursuant to ARTICLE III below.

        1.2    "Administrator" means the Company's Human Resource Officer.

        1.3    "Beneficiary" means the person, trust or other entity designated by the Participant in accordance with Section 5.4 below to receive payment under the Plan in the event of the Participant's death. If the Participant fails to designate a Beneficiary, or if all of the Participant's designated Beneficiaries predecease the Participant, then the Participant's Beneficiary shall be his or her estate.

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

        1.5    "Code" means the Internal Revenue Code of 1986, as now or hereafter amended and in effect.

        1.6    "Company" means Cimarex Energy Co., a Delaware corporation.

        1.7    "Committee" means the Governance Committee of the Board or such other committee, officer or person as the Board may designate from time to time.

        1.8    "Common Stock" means the Company's common stock, $0.01 par value, and, after substitution, such other stock as may be substituted therefor pursuant to Section 3.3.

        1.9    "Deferred Compensation Units" shall mean units held in a notional account in which each unit represents a value equivalent to one share of Common Stock.

        1.10  "Director" means a member of the Board.

        1.11  "Director's Fees" means the annual retainer, attendance fees, committee membership fees, or other compensation, paid in cash or Restricted Stock by the Company to a Director for services as a Director. Director's Fees shall not include expense reimbursements.

        1.12  "Eligible Director" means a Director who is not a common-law employee of the Company or any subsidiary of the Company. A Director who is not a common-law employee of the Company or any subsidiary of the Company becomes an Eligible Director automatically on the date he or she is elected to the Board.

1


        1.13  "Participant" means an Eligible Director who has elected to defer payment of all or a portion of his or her Director's Fees under the Plan. A person remains a Participant so long as he or she has an Account balance under the Plan, whether or not such person remains an Eligible Director.

        1.14  "Plan" means the Cimarex Energy Co. Deferred Compensation Plan for Nonemployee Directors, as set forth herein, together with all amendments hereto.

        1.15  "Restricted Stock" shall have the meaning ascribed to such term by the Cimarex Energy Co. 2002 Stock Incentive Plan.

        1.16  "Unforeseeable Emergency" means a severe financial hardship to the Participant resulting from a sudden and unexpected illness or accident of the Participant, of the Participant's spouse, or of a dependent (as defined in Code section 152(a), without regard to subsections 152(b)(1), (b)(2), and (d)(1)(B)) of the Participant, loss of the Participant's property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by insurance, for example, as a result of a natural disaster), or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. In addition, the imminent foreclosure, or eviction from the Participant's primary residence, the need to pay for medical expenses (including non-refundable deductibles as well as the costs of prescription medications), and the need to pay funeral expenses of a spouse, beneficiary, or dependent (as defined in Code section 152(a), without regard to subsections 152(b)(1), (b)(2), and (d)(1)(B)) may also constitute an Unforeseeable Emergency. The need to pay college tuition and the desire to purchase a home will not be considered to constitute Unforeseeable Emergencies.

ARTICLE II

DEFERRALS

        2.1     Deferral Elections.     An Eligible Director may elect to defer all or any portion of the Director's Fees that he or she anticipates earning. The election shall be made and filed with the Company no later than the last day of the calendar year immediately preceding the calendar year in which the Director begins performing the services for which Director's Fees that are payable in cash are earned. In the case of Director's Fees payable in Restricted Stock, the election shall be made no later than the last day of the calendar year immediately preceding the calendar year of the annual meeting following which such shares of Restricted Stock are awarded. Such elections shall be made by filing a written notice with the Company in such form, in such manner and by such time as the Administrator shall specify. Notwithstanding the foregoing, the initial elections under this Plan shall be made not later than thirty days after the Effective Date. Notwithstanding the foregoing, a Director who first becomes an Eligible Director during a calendar year may, within thirty days following the date on which he or she becomes an Eligible Director, elect to defer Director's Fees that he or she has not yet earned (as of the date such Director files a deferral election with the Company). Once made, an election to defer shall be irrevocable.

        2.2     Allocation of Deferrals.     Deferrals of cash compensation shall be allocated to the Cash account. Deferrals of Restricted Stock shall be treated as an election to exchange the number of shares of Restricted Stock subject to the election for an equal number of Deferred Compensation Units, which shall be allocated to the Deferred Compensation Unit account.

        2.3     Changes in Deferral Elections.     Deferral elections shall be irrevocable.

        2.4     Accounting.     The Company shall credit a Participant's deferrals during a calendar year to the Account established for such Participant for such year, pursuant to ARTICLE III below, as of the date on which the amount deferred would otherwise have been paid or made available to the Participant.

2


ARTICLE III

ACCOUNTS

        3.1     Establishment and Nature of Participant Accounts.     The Company shall establish and maintain, in the name of each Participant, Accounts to reflect the Participant's interest under the Plan. A separate Account shall be established and maintained for each Participant for each year in which such Participant makes deferrals under the Plan. Each such Account may, depending on the Eligible Director's election, include the following subaccounts: Cash Account and a Deferred Compensation Unit Account. The maintenance of such Accounts is for recordkeeping purposes only. No funds or other assets of the Company shall be segregated or attributable to the amounts that may be credited to a Participant's Accounts from time to time, but rather benefit payments under the Plan shall be made solely from the general assets of the Company at the time any such payments become due and payable.

        3.2     Account Earnings.     

        (a)     Cash Account.     All amounts credited to a Participant's Cash Account shall bear interest from the date as of which such amounts are credited to the Cash Account through the date on which they are actually paid to the Participant. The Company shall credit such interest to each of a Participant's Cash Accounts as of the last day of each calendar quarter; provided, however, that interest for the quarter in which an Account is distributed shall be credited to that Account no later than the date of distribution. The rate of interest earned by each Account for a calendar quarter shall be based on the average 10-year U.S. Treasury note rate for the immediately preceding calendar quarter, plus one percent.

        (b)     Deferred Compensation Unit Account.     Deferrals credited to a Participant's Deferred Compensation Unit Account will be credited in units, each of which is equal in value to one share of Common Stock, in accordance with standard recordkeeping procedures. If the Company pays a dividend on its Common Stock and the Participant is in active service on the Board on the date the dividend is paid, the Company shall pay the dividend to the Participant in cash on the same date it pays the dividend to its shareholders. If the Company pays a dividend on its Common Stock and the Participant is not in active service on the Board on the date the dividend is paid, the Company shall credit to the Participant's Cash Account an amount that is equal to the product of the dividend per share times the number of Deferred Compensation Units credited to the Participant's Deferred Compensation Unit Account on the record date for the dividend. The amount shall be payable at the time determined under ARTICLE V.

        3.3     Change in Outstanding Shares.     In the event of any change in outstanding Common Stock by reason of any stock dividend or split, recapitalization, merger, consolidation or exchange of shares or other similar corporate change, the Board shall make such adjustments, if any, that it deems appropriate in the number of Deferred Compensation Units then credited to the Participants' Accounts. Any and all such adjustments shall be made in accordance with Code sections 409A and 424. Any and all such adjustments shall be conclusive and binding upon all parties concerned.

        3.4     Account Statements.     After the close of each calendar year, or more frequently as the Administrator, in its sole discretion, determines, the Company shall furnish each Participant with a statement of the value of his or her Accounts.

ARTICLE IV

VESTING

        A Participant shall be fully vested in his or her Accounts at all times, subject only to his or her status as a general unsecured creditor of the Company in the event of the Company's insolvency or

3


 

bankruptcy and provided that Deferred Compensation Units shall become vested at the same time or times that the restrictions on the Restricted Stock for which they were exchanged would have lapsed.

ARTICLE V

DISTRIBUTIONS

        5.1     Timing and Form of Distribution.     

        (a)   Except as provided otherwise in this ARTICLE V, each of the Participant's Accounts shall be distributed or commence to be distributed to the Participant on the distribution date specified for such Account by the Participant. Subject to subsection 5.1(c) below, the Pa


 
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