SEVERANCE AGREEMENT
Exhibit 10.1
This Severance Agreement (this “Agreement”) is entered into effective this 26th day
of May, 2009 (the “Effective Date”), by and between Delta Petroleum Corporation (“Delta” or “the
Company”) and Xxxxx X. Xxxxxx (“Xxxxxx”). As used herein, “Parties” means, collectively, Delta and
Xxxxxx, and “Party” means either Delta or Xxxxxx.
RECITALS
WHEREAS, Delta and Xxxxxx are parties to that certain Employment Agreement dated May 5, 2005
(the “Employment Agreement”), that certain Change-In-Control Executive
Severance Agreement dated April 30, 2007 (the “Change-In-Control Agreement”) and various stock
option agreements, stock rights and other stock arrangements (the “Stock Agreements”); and
WHEREAS, Delta and Xxxxxx agree that as of the close of business on the Effective Date, Xxxxxx
has resigned from his positions as director, officer and employee of Delta and any of its
subsidiaries, including his positions of Chairman and CEO; and
WHEREAS, in consideration for Xxxxxx’x resignation, Xxxxxx is (a) relinquishing all his rights
in, to and under the Employment Agreement, the Change-In-Control Agreement, the Stock Agreements,
all bonuses relating to past and pending transactions benefiting Delta (except as expressly
provided below) and any other interests he might claim arising from his efforts as Chairman and/or
CEO, and (b) agreeing to stay on as a consultant on the terms described herein to facilitate an
orderly transition and to assist in certain pending transactions and Delta desires to provide the
payments and other consideration specified herein.
NOW, THEREFORE, in consideration of the provisions herein, and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged by Delta and Xxxxxx, the
Parties agree as follows:
1. Resignation. Effective as of the close of business on the Effective Date, Xxxxxx hereby
resigns, and Delta accepts such resignation, from all his positions as director, officer and
employee of Delta and any of its subsidiaries, including his positions of Chairman and CEO.
2. Consideration. Subject to Section 2(b), Delta agrees to pay Xxxxxx $4,700,000 in cash
(the “Cash Consideration”), issue to Xxxxxx 1,000,000 shares of Delta common stock (the “Shares”)
and pay Xxxxxx the aggregate of any accrued unpaid salary, vacation days and reimbursement of his
reasonable business expenses incurred through the Effective Date (the “Accrued Amounts”).
(a) Effective Date Consideration. On the ADEA Effective Date (as defined below),
Delta shall pay to Xxxxxx $1,811,892 of the Cash Consideration plus the Accrued Amounts by wire
transfer in immediately available funds.
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(b) Rabbi Trust Consideration. On the ADEA Effective Date, Delta shall deposit (1) the
Shares and (2) $2,888,108 of the Cash Consideration (the “Trust Cash”) into a grantor trust (the
“Rabbi Trust”) established for the purpose of the payment of benefits to Xxxxxx under this
Agreement, in satisfaction of the amounts payable under the Change-In-Control Agreement (which the
Parties agree is $4,588,108), to which Xxxxxx otherwise would have been entitled upon a separation
from service but for the provisions of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and its related guidance (“Section 409A”). The trust agreement shall be
substantially similar to the model trust agreement provided by the Internal Revenue Service in
Revenue Procedure 92-64, modified as necessary for Section 409A, and shall be reasonably acceptable
to Xxxxxx and Delta. Delta shall select the trustee for the Rabbi Trust, which trustee must be
reasonably acceptable to Xxxxxx, and Delta shall pay all fees associated with the Rabbi Trust. The
Parties acknowledge and agree that any interest accrued on the Trust Cash shall be deemed the
property of Delta and paid by the trustee to Delta. The Shares and the Trust Cash shall be
distributed to Xxxxxx on November 27, 2009, or the first business day on or following the date that
is six months after Xxxxxx’x separation from service as determined in accordance with Section 409A,
if later (the “Trust Distribution Date”). Delta’s obligations to pay benefits under this Agreement
shall continue to constitute an unfunded, unsecured promise to pay until the Trust Distribution
Date. Rabbi Trust assets shall be subject to the claims of Delta creditors under federal and state
law in the event of Delta’s insolvency. Rabbi Trust assets shall not, at any time, be located
outside of the United States or be transferred outside of the United States.
(c) Resale Registration. Delta, at its sole cost and expense, shall prepare and file
a registration statement on Form S-3, or another appropriate form permitting registration of the
Shares for resale by Xxxxxx reasonably acceptable to Xxxxxx (the “Registration Statement”)
providing for the resale of the Shares in accordance with Rule 415 of the Securities Act from time
to time by Xxxxxx within 30 days after the Effective Date. Delta shall use its reasonable best
efforts to cause the Registration Statement to become effective on or before the Trust Distribution
Date, and to keep the Registration Statement continuously effective until the end of the
Effectiveness Period (as defined below). If the Registration Statement covering resale of the
Shares ceases to be effective for any reason at any time during the Effectiveness Period (other
than because all securities registered thereunder shall have been resold pursuant thereto), Delta
shall use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof. For purposes of this Section 2, the “Effectiveness Period” means the
earlier of (i) the one year anniversary of the Trust Distribution Date, or (ii) the date on which
all Shares held by Xxxxxx may be sold without restrictions under Rule 144 promulgated under the
Securities Act of 1933, as amended (the “Securities Act”).
3. Benefits. Delta shall provide or arrange to provide to Xxxxxx as provided below any
medical, prescription, dental, disability, group life and accidental death insurance provided or
arranged by Delta or any of its subsidiaries (the “Welfare Benefits”), at Delta’s sole expense and
for a period of 36 months from the Effective Date (the “Benefit Continuation Period”), Welfare
Benefits that are substantially the same as the Welfare Benefits provided to Xxxxxx (and his
spouse, dependents and beneficiaries) immediately before the Effective Date, except that the
Welfare Benefits to which Xxxxxx is entitled under this Section 3 will be reduced to the extent
that comparable welfare benefits are received by Xxxxxx from an employer other than Delta or its
subsidiary during the Benefit Continuation Period. Health insurance premiums and any non-
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taxable benefit shall be paid on Xxxxxx’x behalf as of the first day of each month during the
Benefit Continuation Period, and in no event shall any such payment be made later than 30 days
after the first day of the month; provided that Xxxxxx makes a timely election to receive such
benefits under the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”) to
the extent applicable; provided further that payments made after December 31, 2009 shall be taxable
to the extent necessary to avoid the creation of a nondiscriminatory benefit under Section 105(h)
of the Code. For any other Welfare Benefits, in lieu of paying for such Welfare Benefits during
the Benefit Continuation Period and to the extent payment would be taxable, on the ADEA Effective
Date, Delta shall deposit into the Rabbi Trust an amount equal to 36 times the excess of (i) the
monthly premium payable immediately prior to the Effective Date for such Welfare Benefits
substantially similar to those which Xxxxxx (and Xxxxxx’x dependents) were receiving at such time,
over (ii) the aggregate monthly premiums(s) charged to Xxxxxx for such coverage at such time, which
amounts shall be paid to Xxxxxx on the Trust Distribution Date. Payments or reimbursements for
Welfare Benefits in any taxable year shall not affect those payable in any other taxable year. The
fact that the cost of the participation by Xxxxxx, or Xxxxxx’x spouse, dependents or beneficiaries,
in any plan for Welfare Benefits (a “Welfare Benefit Plan”) was paid indirectly by Delta, as a
reimbursement or a credit to Xxxxxx, before the Effective Date does not mean that the corresponding
Welfare Benefits were not “provided to Xxxxxx” by Delta for the purpose of this Section 3.
4. Consulting Services.
(a) Xxxxxx agrees to make himself reasonably available for consultation to Delta’s Board of
Directors for a period of six months from the Effective Date (the “Consulting Service Term”). The
actual dates and time of availability shall be as the Parties mutually agree in good faith. In no
event shall Xxxxxx provide services exceeding 20% of the average level of bona fide services
performed by Xxxxxx over the immediately preceding 36-month period. It is the intent of both
Xxxxxx and Delta that Xxxxxx’x employment with Delta and its subsidiaries shall terminate as of the
Effective Date, and that the consulting services shall not constitute a continuation of his
employment. Xxxxxx shall be reimbursed by Delta for all his out of pocket expenses incurred in
connection with performance of the consulting services. In addition, during the Consulting Service
Term, Delta shall continue to pay Xxxxxx $1,600 per month for purposes of his car lease.
(b) Xxxxxx shall be an independent contractor, not an employee or agent of Delta or any of its
subsidiaries or affiliates. Other than as expressly provided in this Agreement, neither Delta or
any of its affiliates shall be required to furnish Xxxxxx with any employee benefits for which
officers or employees of such entities are eligible at any time.
(c) To the extent Xxxxxx materially fails to perform his duties under this Section 4 and such
failure continues after written notice detailing such failure and a reasonable time period within
which to cure such failure, Delta may seek a claim for breach of contract against Xxxxxx provided
that the maximum amount of damages Delta could recover under such claim shall be capped at
$850,000. It is acknowledged and agreed by the Parties that neither the death nor disability of
Xxxxxx shall constitute a failure to perform his duties under this Section 4.
5. Other Business and Activities. From and after the Effective Date, and notwithstanding
the consulting services to be provided hereunder, Xxxxxx shall be free to pursue any other
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business and activities in any industry, including the oil, gas and minerals industry, whether or
not competitive with Delta. It is expressly acknowledged and agreed that Xxxxxx shall hereafter
have no duty to present any potential transactions to Delta or to disclose any other business
information to which he may be privy. Without limiting the foregoing, and for purposes of
clarification, it is acknowledged and agreed that Sections 9 and 10 of the Change-In-Control
Agreement and 15 and 16 of the Employment Agreement shall be null, void and of no effect.
6. Xxxxxx’x Relinquishment of Rights. It is expressly acknowledged and agreed that,
subject to the actual receipt by Xxxxxx of the consideration to be delivered pursuant to Sections
2, 3 and 4 above, Xxxxxx shall relinquish all rights he may have under Section 3 of the
Change-In-Control Agreement, Sections 1, 2, 3, 4, 5, 6, 7, and 8 of the Employment Agreement, all
rights under the Stock Agreements (provided that Xxxxxx shall retain any and all shares of Delta
that are fully vested, and issued and outstanding in his name and the name of any of the members of
his family) and, except as set forth in Section 8(c), any and all rights he may have to any other
salary, bonus or other compensation (including without limitation any compensation based on the
success of any past or pending transactions or litigation, including those certain judgments
obtained against the United States relating to Delta’s interest in off-shore California leases).
In the event there is no actual receipt by Xxxxxx of the consideration to be delivered pursuant to
Sections 2, 3 and 4 above, then Xxxxxx shall not have relinquished any such rights.
7. Acknowledgement of Continuing Rights and Obligations. It is acknowledged and agreed
that, except as provided in Section 6 above, Xxxxxx shall continue to be entitled to his rights
under the Employment Agreement (including without limitation those contained in Sections 9 and 26)
and the Change-In-Control Agreement (including without limitation those contained in Sections 14,
15, 16, 17 and 21). It is further acknowledged and agreed that Xxxxxx shall continue to remain
obligated under Sections 10, 11, 12, 14, 17 and 18 of the Employment Agreement, and Sections 5, 6,
8, 11, 12 and 13 of the Change-In-Control Agreement.
8. General Release.
(a) Xxxxxx, for himself, and Delta, for itself, and each Party for its respective affiliates,
successors, heirs, subrogees, assigns, principals, agents, partners, employees, associates,
attorneys and representatives, voluntarily, knowingly and intentionally releases and discharges the
other Party and its respective predecessors, successors, parents, subsidiaries, affiliates and
assigns and each of its respective officers, directors, principals, shareholders, agents,
attorneys, board members, and employees from any and all claims, actions, liabilities, demands,
rights, damages, costs, expenses, and attorneys’ fees (including but not limited to any claim of
entitlement for attorneys’ fees under any contract, statute, or rule of law allowing a prevailing
party or plaintiff to recover attorneys’ fees), of every kind and description from the date Delta
hired Xxxxxx through the Effective Date, except as set forth in subparagraphs (b) and (c) below
(the “Released Claims”).
(b) The Released Claims include but are not limited to those which arise out of, relate to, or
are based upon: (i) Xxxxxx’x employment with Delta or the termination thereof; (ii) statements,
acts or omissions by the Parties whether in their individual or representative capacities, (iii)
express or implied agreements between the Parties and claims under any severance plan, except as
provided in this Agreement, (iv) any stock or stock option grant,
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agreement, or plan, except as provided in this Agreement, (v) all federal, state, and
municipal statutes, ordinances, and regulations, including, but not limited to, claims of
discrimination based on race, color, national origin, age, sex, sexual orientation, religion,
disability, veteran status, whistleblower status, public policy, or any other characteristic of
Xxxxxx under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act,
the Americans with Disabilities Act, the Equal Pay Act, Title VII of the Civil Rights Act of 1964
(as amended), the Employee Retirement Income Security Act of 1974, the Rehabilitation Act of 1973,
the Worker Adjustment and Retraining Notification Act, or any other federal, state, or municipal
law prohibiting discrimination or termination for any reason, (vi) state and federal common law,
including but not limited to claims for breach of contract, defamation, or emotional distress, and
(vii) any claim which was or could have been raised; provided, notwithstanding anything to the
contrary in this Agreement, the “Released Claims” shall not include rights under this Agreement,
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or any 401(k)
plan. The Parties agree that the Released Claims do not include matters arising out of or in
connection with claims by governmental authorities or self-regulatory organizations involving
actual or potential violations of the securities laws, rules or regulations applicable to Delta.
(c) The Parties specifically agree that notwithstanding anything herein to the contrary (i)
Xxxxxx is retaining all his right, title and interest to the 1% net ORRI in OCS Lease 452 and (ii)
nothing in this Agreement alters, modifies or amends Xxxxxx’x rights to indemnification as set out
in Delta’s Certificate of Incorporation or Bylaws or the Delaware General Corporation Law.
Further, it is specifically agreed that nothing in this Agreement is intended to affect Xxxxxx’x
rights with respect to royalties, overriding royalty interests, working interests or any similar
oil, gas or mineral interests he owns or hereinafter acquires.
(d) Xxxxxx expressly acknowledges and agrees that he owes Delta a reimbursement amount equal
to $255,000 for personal expenses Delta incurred on his behalf. On the ADEA Effective Date, Xxxxxx
shall pay to Delta such $255,000.
9. Representations and Warranties. Each of Xxxxxx and Delta (except as to subparagraphs
(c), (e), (f) and (g) below), severally and not jointly, warrants and represents as follows:
(a) He or it has read this Agreement and agrees to the conditions and obligations set forth in
it.
(b) He or it voluntarily executes this Agreement (i) after having been advised to consult with
legal counsel, (ii) after having had opportunity to consult with legal counsel and (iii) without
being pressured or influenced by any statement, representation or omission of any person acting on
behalf of the other or any of its officers, directors, employees, agents and attorneys.
(c) Xxxxxx has no knowledge of the existence of any lawsuit, charge or proceeding against
Delta or any of its officers, directors, employees or agents arising out of or otherwise connected
with any of the matters herein released.
(d) He or it has the individual, corporate, or entity power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and, if such Party is a
corporation, limited liability company or partnership, the execution, delivery, and performance
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of this Agreement has been duly authorized by all necessary corporate, company or partnership
action. This Agreement constitutes the legal, valid, and binding obligation of each Party.
(e) Xxxxxx admits, acknowledges, and agrees that, other than the consideration set forth in
this Agreement, Xxxxxx has been fully paid or provided all wages, compensation, salary,
commissions, bonuses, expense reimbursements, stock, stock options, vacation, change in control
benefits, severance benefits, deferred compensation, or other benefits from Delta, which are or
could be due to Xxxxxx under the terms of Xxxxxx’x employment or otherwise.
(f) Applicable law provides that Xxxxxx shall have at least 21 days to consider this
Agreement. In the event that Xxxxxx executes this Agreement prior to the 21st day after receipt of
it, Xxxxxx expressly intends such execution as a waiver of any rights Xxxxxx has to review the
Agreement for the full 21 days. In such event, Xxxxxx represents that such waiver is voluntary and
made without any pressure, representations or incentives from Delta for such early execution.
(g) Xxxxxx understands that this Agreement waives and releases any claims Xxxxxx may have
under the Age Discrimination in Employment Act. Xxxxxx may revoke this Agreement for 7 calendar
days following its execution, and this Agreement shall not become enforceable and effective against
Xxxxxx until 7 calendar days after such execution (the “ADEA Effective Date”). If Xxxxxx chooses
to revoke this Agreement, Xxxxxx must provide written notice to Delta within 7 calendar days of
Xxxxxx’x execution of this Agreement. If Xxxxxx does not revoke within the 7-day period, the right
to revoke is lost.
10. Non-Disparagement.
(a) Xxxxxx agrees not to make to any person any statement that disparages the Company or its
directors, officers, employees or affiliates or reflects negatively upon the Company, including,
without limitation, statements regarding the Company’s financial condition, business practices,
employment practices, or its predecessors, successors, subsidiaries, officers, directors, employees
or affiliates.
(b) Delta agrees not to make to any person any statement that disparages Xxxxxx or reflects
negatively upon Xxxxxx, including, without limitation, statements regarding Xxxxxx’x financial
condition, business practices, performance while at Delta or otherwise.
11. Non-Solicitation. During the Consulting Service Term, Xxxxxx shall not, directly or
indirectly through another person or entity, except on behalf of the Company or an affiliate of the
Company:
(a) induce or attempt to induce any employees of the Company or any affiliate of the Company
to leave the employ of the Company or such affiliate, or in any way interfere with the relationship
between the Company (or such affiliate) and its employees; or
(b) solicit any person who is or was an employee or consultant of the Company or any affiliate
of the Company until three months after such individual’s employment or consulting relationship
with the Company or such affiliate has been terminated.
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12. Mandatory Arbitration. Except as provided in subsection (h) of this Section 12, any
dispute must be resolved by binding arbitration in accordance with the following:
(a) Either Party may begin arbitration by filing a demand for arbitration in accordance with
the Rules for Commercial Arbitration of the American Arbitration Association (as in effect at the
time of arbitration of a dispute, the “Arbitration Rules”) and concurrently notifying the other
Party of that demand. If the Parties are unable to agree upon a panel of three arbitrators within
ten days after the demand for arbitration was filed (and do not agree to an extension of that
ten-day period), either Party may request the Denver office of the American Arbitration Association
(“AAA”) to appoint the arbitrator or arbitrators necessary to complete the panel in accordance with
the Arbitration Rules. Each arbitrator so appointed shall be deemed accepted by the Parties as
part of the panel.
(b) The arbitration shall be conducted in the Denver, Colorado metropolitan area at a place
and time agreed upon by the Parties with the panel, or if the Parties cannot agree, as designated
by the panel. The panel may, however, call and conduct hearings and meetings at such other places
as the Parties may agree or as the panel may, on the motion of one Party, determine to be necessary
to obtain significant testimony or evidence.
(c) The panel may authorize any and all forms of discovery upon a Party’s showing of need that
the requested discovery is likely to lead to material evidence needed to resolve the dispute and is
not excessive in scope, timing, or cost.
(d) The arbitration shall be subject to the Federal Arbitration Act and conducted in
accordance with the Arbitration Rules to the extent that they do not conflict with this Section 12.
The Parties and the panel may, however, agree to vary to provisions of this Section 12 or the
matters otherwise governed by the Arbitration Rules.
(e) The arbitration hearing shall be held within 60 days after the appointment of the panel.
The panel’s final decision or award shall be made within 30 days after the hearing. That final
decision or award shall be made by unanimous or majority vote or consent of the arbitrators
constituting the panel, and shall be deemed issued at the place of arbitration. The panel’s final
decision or award shall be based on this Agreement and applicable law.
(f) The panel’s final decision or award may include injunctive relief in response to any
actual or impending breach of this Agreement or any other actual or impending action or omission of
a Party under or in connection with this Agreement.
(g) The panel’s final decision or award shall be final and binding upon the Parties, and
judgment upon that decision or award may be entered in any court having jurisdiction. The Parties
waive any right to apply or appeal to any court for relief from the preceding sentence or from any
decision of the panel made before the final decision or award.
(h) Nothing in this Section 12 limits the right of either Party to apply to a court having
jurisdiction to (i) enforce the agreement to arbitrate in accordance with this Section 12, (ii)
seek provisional or temporary injunctive relief, in response to an actual or impending breach of
the Agreement or otherwise so as to avoid an irreparable damage or maintain the status quo, until a
final arbitration decision or award is rendered or the dispute is otherwise resolved, or (iii)
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challenge or vacate any final arbitration decision or award that does not comply with this
Section 12. In addition, nothing in this Section 12 prohibits the Parties from resolving any
dispute (in whole or in part) by agreement.
(i) The panel may proceed to an award notwithstanding the failure of any Party to participate
in such proceedings. The prevailing Party in the arbitration proceeding may be entitled to an
award of reasonable attorneys’ fees incurred in connection with the arbitration in such amount, if
any, as determined by the panel in its discretion. The costs of the arbitration shall be borne
equally by the Parties unless otherwise determined by the panel in its award.
(j) The panel shall be empowered to impose sanctions and to take such other actions as it
deems necessary to the same extent a judge could impose sanctions or take such other actions
pursuant to the Federal Rules of Civil Procedure and applicable law. Each party agrees to keep all
disputes and arbitration proceedings strictly confidential except for disclosure of information
required by applicable law which cannot be waived.
(k) This Section 12 shall not preclude the Parties at any time from mutually agreeing to
pursue non-binding mediation of the dispute.
13. Section 409A. To the extent applicable, it is intended that this Agreement comply with
Section 409A. In the event that Xxxxxx or Delta determines that any payment or distribution of any
type to Xxxxxx or for Xxxxxx’x benefit, whether paid or payable or distributed or distributable,
pursuant to the terms of this Agreement, the Change-In-Control Agreement or the Employment
Agreement (the “Total Payments”), would be subject to the additional tax and interest imposed by
Section 409A, or any interest or penalties with respect to such additional tax (such additional
tax, together with any such interest or penalties, are collectively referred to as the “409A Tax”),
then Xxxxxx shall be entitled to receive an additional payment (a “409A Tax Restoration Payment”)
in an amount that shall fund the payment by Xxxxxx of any 409A Tax on the Total Payments as well as
all income taxes imposed on the 409A Tax Restoration Payment, any 409A Tax imposed on the 409A Tax
Restoration Payment and any interest or penalties imposed with respect to taxes on the 409A Tax
Restoration Payment or any 409A Tax. Xxxxxx shall provide Delta notice of the payment of any 409A
Tax within 5 business days of remittance, and Delta shall pay the 409A Tax Restoration Payment to
Xxxxxx within 10 business days of Xxxxxx’x remittance of any 409A Tax, but to the extent the 409A
Tax Restoration Payment is payable on account of Xxxxxx’x separation from service, no earlier than
the Trust Distribution Date.
14. Company’s Successor. In addition to any obligations imposed by law upon any successor
to Delta, Delta shall require any successor to all or substantially all of Delta’s business or
assets (whether direct or indirect and whether by purchase, reorganization, merger, share exchange,
consolidation, or otherwise) to expressly assume and agree to perform Delta’s obligations under
this Agreement to the same extent, and in the same manner, as Delta would be required to perform if
no such succession had occurred. This Agreement shall be binding upon, and inure to the benefit
of, any successor to Delta.
15. Xxxxxx’x Successor. This Agreement shall inure to the benefit of, and be enforceable
by, Xxxxxx’x personal or legal representatives, designated beneficiary, administrators, executors
and heirs. If Xxxxxx should die after the Effective Date, but before any payment or benefit to
which
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Xxxxxx is entitled under this Agreement has been received by Xxxxxx, all payments or benefits to
which Xxxxxx would have been entitled had he continued to live (other than any such Welfare
Benefits that, by their terms, terminate upon Xxxxxx’x death) shall be made or provided in
accordance with this Agreement to the representatives, executors, or administrators of Xxxxxx’x
estate.
16. Restricted Assignment. Except as expressly provided in Sections 14 and 15, neither
Party may assign, transfer, or delegate this Agreement or any of its or his rights or obligations
under this Agreement without the prior written consent of the other Party. Any attempted
assignment, transfer, or delegation in violation of the preceding sentence shall be void and of no
effect.
17. Waiver and Amendment. No term or condition of this Agreement shall be deemed waived
other than by a writing signed by the Party against whom or which enforcement of the waiver is
sought. Without limiting the generality of the preceding sentence, a Party’s failure to insist
upon the other Party’s strict compliance with any provision of this Agreement or to assert any
right that a Party may have under this Agreement shall not be deemed a waiver of that provision or
that right. Any written waiver shall operate only as to the specific term or condition waived
under the specific circumstances and shall not constitute a waiver of that term or condition for
the future or a waiver of any other term or condition. No amendment or modification of this
Agreement shall be deemed effective unless stated in a writing signed by the Parties.
18. Entire Agreement. This Agreement contains the Parties’ entire agreement regarding the
subject matter of this Agreement and supersedes all prior agreements and understandings between
them regarding such subject matter (except as reserved herein). The Parties have made no
agreements, representations, or warranties regarding the subject matter of this Agreement that are
not set forth in this Agreement.
19. Notice. Each notice or other communication required or permitted under this Agreement
shall be in writing and transmitted, delivered, or sent by personal delivery, prepaid courier or
messenger service (whether overnight or same-day), prepaid telecopy or facsimile, or prepaid
certified United States mail (with return receipt requested), addressed (in any case) to the other
Party at the address for that Party set forth below that Party’s signature on this Agreement, or at
such other address as the recipient has designated by notice to the other Party, with a copies as
follows:
If to Xxxxxx,
Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxx, LLP
Attention: Xxxxxxx X. Xxxxx
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
P: (000) 000-0000
F: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
P: (000) 000-0000
F: (000) 000-0000
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If to Delta,
Xxxxx Xxxxxx & Xxxxxx LLP
Attention: Xxx Xxxxxx
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
P: (000) 000-0000
F: (000) 000-0000
Attention: Xxx Xxxxxx
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
P: (000) 000-0000
F: (000) 000-0000
Each notice or communication so transmitted, delivered, or sent in person, by courier or messenger
service, or by certified United States mail shall be deemed given, received, and effective on the
date delivered to or refused by the intended recipient (with the return receipt, or the equivalent
record of the courier or messenger, being deemed conclusive evidence of delivery or refusal.)
Nevertheless, if the date of delivery is after 5:00 p.m. on a business day, the notice or other
communication shall be deemed given, received, and effective on the next Business Day.
20. Severability. It is the desire of the Parties hereto that this Agreement be enforced
to the maximum extent permitted by law, and should any provision contained herein be held
unenforceable by a court of competent jurisdiction or arbitrator (pursuant to Section 12), the
Parties hereby agree and consent that such provision shall be reformed to create a valid and
enforceable provision to the maximum extent permitted by law; provided, however, if such provision
cannot be reformed, it shall be deemed ineffective and deleted herefrom without affecting any other
provision of this Agreement. This Agreement should be construed by limiting and reducing it only
to the minimum extent necessary to be enforceable under then applicable law.
21. Title and Headings; Construction. Titles and headings to sections hereof are for the
purpose of reference only and shall in no way limit, define or otherwise affect the provisions
hereof. The words “herein,” “hereof,” “hereunder” and other compounds of the word “here” shall
refer to the entire Agreement and not to any particular provision.
22. Governing Law; Jurisdiction. All matters or issues relating to the interpretation,
construction, validity, and enforcement of this Agreement shall be governed by the laws of the
State of Colorado, without giving effect to any choice-of-law principle that would cause the
application of the laws of any jurisdiction other than Colorado. Jurisdiction and venue of any
action or proceeding relating to this Agreement or any dispute (to the extent arbitration is not
required under Section 12) shall be exclusively in Denver, Colorado.
23. Survival of Certain Provisions. Wherever appropriate to the intention of the Parties,
the respective rights and obligations of the Parties hereunder shall survive any termination or
expiration of this Agreement.
24. Counterparts. This Agreement may be signed in counterparts, with the same effect as if
both Parties had signed the same document. All counterparts shall be construed together to
constitute one, and the same, document.
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25. Attorneys Fees. The Parties agree that Delta shall pay all reasonable expenses and
costs Xxxxxx incurs with Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxx, LLP in connection with the negotiation
and execution of this Agreement or in good faith in obtaining or retaining payments and benefits
under this Agreement within 20 days of being incurred. Payment of this expense in any taxable year
may not affect expenses to be paid in any other year.
[Signature page follows.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the
Effective Date first above written.
XXXXXX:
Signature: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Address for notices:
0 Xxxxxx Xxxxx Xxxx Xxxxx
Xxxxxx Xxxxx Xxxxxxx, XX 00000
Xxxxxx Xxxxx Xxxxxxx, XX 00000
DELTA:
Delta Petroleum Corporation, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
Its: Executive Vice President
Name: Xxxxxxx X. Xxxxxxxx
Its: Executive Vice President
Name: Xxxxxxx X. Xxxxxxxx
Address for Notices:
Delta Petroleum Corporation
c/o Xxx Xxxxxxxx, Executive Vice President and General Counsel
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Delta Petroleum Corporation
c/o Xxx Xxxxxxxx, Executive Vice President and General Counsel
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
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