AMENDMENT TO CHANGE IN CONTROL SEVERANCE AGREEMENT
Exhibit
10.4
AMENDMENT
TO
THIS
AMENDMENT TO CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”), effective
as of January 1, 2010, is made on February 16, 2010 between Xxxxxx Energy
Company, a Delaware corporation (the “Company”), and XXXX X. XXXXXXX (the
“Executive”).
WITNESSETH:
WHEREAS,
the Company and Executive previously entered into a Change in Control Severance
Agreement on December 23, 2008 (the “Change in Control Agreement”);
and
WHEREAS,
the Company and Executive desire to amend the Change in Control
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth (including definitions of capitalized terms
which are set forth in Section 23 and throughout the Change in Control
Agreement) and intending to be legally bound hereby, the Company and Executive
agree as follows:
1. Section
2(b) of the Change in Control Agreement is amended to read as
follows:
(b) Payments Upon Involuntary
Termination Associated With a Change in Control. Subject to the
provisions of Section 2(c) or Sections 3 and 6 hereof, in the event a
termination described in Section 2(a) occurs, the Company shall pay and provide
to Executive on or beginning, as applicable, the first business day that occurs
following sixty (60) days after his Termination Date or, where Executive is
entitled to benefits under this Agreement by reason of clause (ii) or (iii) of
Section 2(a) above, the later of as soon as administratively feasible after the
date an actual Change in Control occurs or the first business day that occurs
following sixty (60) days after his Termination Date (contingent on the
execution of the release without revocation as contemplated in Section 4
hereof):
(i) a
lump sum cash payment equal to $500,000 plus 2.5 times Executive’s Base Pay (as
defined in Section 23);
(ii) any award under the Company’s long-term cash and
equity incentive program, including stock option, restricted stock, restricted
unit, other equity- or cash-based incentive awards or other equity- or
cash-based incentive agreements, which by its terms vests in connection with the
Change in Control, provided that payment of such award shall be determined
solely by the terms of such award and any plan, program or arrangement which
controls its determination and payment and provided, further, that any
performance-based award relating to a performance period beginning after
January 1, 2009 is hereby amended to eliminate vesting on the occurrence of
a Change in Control (as defined herein) or change in control (as defined in
connection with any such award); and
(iii) for
a period of 24 months following his Termination Date, Executive shall continue
to receive on a monthly basis the medical and dental coverage in effect on his
Termination Date (or generally comparable coverage) for himself and, if
applicable, his spouse and dependents, as the same may be changed from time to
time for employees generally, as if Executive had continued in employment during
such period; or, as an alternative, the Company may elect to pay Executive cash
in lieu of such coverage in an amount equal to Executive’s reasonable after-tax
cost of continuing comparable coverage, where such coverage may not be continued
by the Company (or where such continuation would adversely affect the tax status
of the plan pursuant to which the coverage is provided), with any such cash
payments to be made in accordance with the ordinary payroll practices of the
Company (not less frequently than monthly) for employees generally for the
period during which such cash payments are to be provided.
(A) If
Executive does not receive the cash payment described in the preceding sentence,
the Company shall take all commercially reasonable efforts to provide that the
COBRA (as defined in Section 23) health care continuation coverage period under
section 4980B of the Code (as defined in Section 23) shall commence immediately
after the foregoing 24 month benefit period, with such continuation coverage
continuing until the end of applicable COBRA health care continuation coverage
period.
(B) If
Executive would have been eligible for post-retirement medical and dental
coverage had he retired from employment during the period of 24 months following
his Termination Date, but is not so eligible as the result of his Involuntary
Termination Associated With a Change in Control, then at the conclusion of the
benefit continuation period described in (A) above, the Company shall take all
commercially reasonable efforts to provide Executive on a monthly basis with
additional continued group medical and dental coverage comparable to that which
would have been available to him from time to time under the Company’s
post-retirement medical and dental program, for as long as such coverage would
have been available under such program, or, as an alternative, the Company may
elect to pay Executive cash in lieu of such coverage in an amount equal to
Executive’s reasonable after-tax cost of continuing comparable coverage, where
such coverage may not be continued by the Company (or where such continuation
would adversely affect the tax status of the plan pursuant to which the coverage
is provided), with any such cash payments to be made in accordance with the
ordinary payroll practices of the Company (not less frequently than monthly) for
employees generally for the period during which such cash payments are to be
provided.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and
delivered as of the date first above written.
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XXXXXX
ENERGY COMPANY
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By:
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/s/ Xxxx X. Xxxx |
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Name:
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Xxxx X. Xxxx |
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Title:
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Vice
President and Chief
Administrative
Officer
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/s/ Xxxx. X. Xxxxxxx
XXXX
X. XXXXXXX
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