Contract
Exhibit
10.4
AMENDMENT
TO
THIS
AMENDMENT TO RETENTION AND EMPLOYMENT AGREEMENT (this “Amendment”), effective as
of January 1, 2010, is made on December 31, 2009 between XXXXXX ENERGY
COMPANY, a Delaware corporation (the “Company”), and XXXX XXXXXXXXXXX
XXXXXX (the “Executive”).
WITNESSETH:
WHEREAS,
the Company and Executive previously entered into an amended and restated
Retention and Employment Agreement on December 23, 2008 (the “Employment
Agreement”); and
WHEREAS,
the Company and Executive desire to amend the Employment 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 18 and throughout the Employment Agreement) and
intending to be legally bound hereby, the Company and Executive agree as
follows:
1. Section
5.2 of the Employment Agreement is amended to read as follows:
5.2 Severance
Benefit. The Executive previously entered into a Change in
Control Agreement which shall govern the Executive’s rights, duties and
obligations in the event of the Executive’s cessation of employment with the
Company (or any successor) covered by the Change in Control
Agreement. In the event of the Executive’s cessation of employment
with the Company during the period of this Agreement for any reason other than
for “Cause” (as defined, and determined pursuant to the procedure in the Change
in Control Agreement) under circumstances where such cessation of employment is
not covered by the Change in Control Agreement, then the Company shall pay to
the Executive or if the Executive is deceased to the Executive’s estate, within
30 days following Executive’s cessation of employment with the Company, a lump
sum payment equal to $1,600,000 (the “Severance Benefit”), unless the Executive
elects to terminate his employment voluntarily during the term of this Agreement
other than for any reason which would constitute “a Constructive Termination
Associated with a Change in Control” (as defined, and determined pursuant to the
procedure, in the Change in Control Agreement, under circumstances where such
Constructive Termination is not covered by the Change in Control
Agreement).
2. In
all other respects, the Employment Agreement is unchanged.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and
delivered as of December 31, 2009.
XXXXXX
ENERGY COMPANY
|
By:
|
/s/
Xxxx X. Xxxx
|
|
|
Name:
|
Xxxx
X. Xxxx
|
|
|
Title:
|
Vice
President and Chief Administrative Officer
|
|
|
/s/
Xxxx Xxxxxxxxxxx Xxxxxx
|
||
|
Xxxx
Xxxxxxxxxxx Xxxxxx
|
||
