Contract
Exhibit 10.1
Second
Amendment to the Executive Change in Control Severance Agreement (as Amended and
Restated) effective as of April 28, 2009 (the “Effective Date”) by and between
Frontier Oil Corporation (the “Company”) and Xxxxxxx X. Xxxxxxxx (the
“Executive”)
WITNESSETH:
WHEREAS the Company and the
Executive have entered into that certain Executive Change in Control Severance
Agreement (as Amended and Restated) as of December 30 , 2008 (the “Prior
Agreement”); and
WHEREAS, the parties desire to
amend and restate the Prior Agreement as set forth herein,
NOW, THEREFORE, in
consideration of the premises and covenants contained herein and in the Prior
Agreement, and other good, valuable and binding consideration, the receipt and
sufficiency of which are hereby acknowledged, the Prior Agreement is hereby
amended as follows:
Paragraph
1.03 is replaced in its entirety with the following:
1.03 Except
as provided below, this Agreement automatically shall terminate in the event the
Executive ceases for any reason to be an employee of the Company and its
affiliates prior to a Change in Control; provided, however, if the Executive’s
employment is terminated during the six-month period preceding a “change in
control event” (within the meaning of Section 409A(a)(2)(A)(v) of the Internal
Revenue Code of 1986, as amended (the “Code”), and Treas. Reg. §1.409A-3(i)(5))
that would have occurred during the term of this Agreement but for the
termination of this Agreement upon the Executive’s termination of employment,
and if his termination would have qualified as a Termination of Employment under
paragraph 7.02(a) or paragraph 7.02(b)(ii) (without regard to the 30/60 day
periods provided in paragraph 7.02(b)(ii)), then, subject to Section 7.01(c),
on, but not later than 30 days following, such change in control event the
Company shall pay the Executive a lump sum amount equal to (a) the sum of (i)
6.0 times his annual Base Salary, and (ii) if at the time of his termination of
employment the Executive held any equity-based compensation awards that were
forfeited upon such termination, the sum of the Fair Market Value of the shares
subject to such forfeited awards less the sum of the exercise prices, if any, of
such awards minus (b) the amount of any severance payment to the Executive
pursuant to an Executive Severance Agreement with respect to such termination of
employment. Solely for the purpose of this paragraph, Fair Market
Value shall mean the reported closing price of the common shares of the Company
on the effective date of the change in control event. In addition,
any stock options or stock appreciation rights (“SAR”) held by the Executive on
the date of the change in control event shall remain exercisable for the
remainder of their terms as if the Executive’s employment had not terminated,
but in no event later than the earlier of (i) the latest date on which the
option or SAR could have expired by its original terms under any circumstances
or (ii) the 10th
anniversary of the original date of grant of the option or SAR. To
the extent provided by the option plan or the terms of the change in control
event agreement, such options and SARs may be terminated earlier.
Paragraph
7.01(a) is replaced in its entirety with the following:
(a) the
Company shall pay to the Executive (or his dependents, beneficiaries or estate
as the case may be), within 30 days following his Termination of Employment, a
lump sum amount equal to (1) 6.0 times his annual Base Salary minus (2) the sum
of any Base Salary and annual bonus amounts that have been paid to the Executive
for services performed during the Period of Employment,
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective for
all purposes as of the Effective Date.
FRONTIER OIL CORPORATION
By: /s/ Xxxxx X.
Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chairman of the
Board
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
