EXHIBIT 10.15(b)
FIRST AMENDMENT TO
EOG RESOURCES, INC. CHANGE OF CONTROL SEVERANCE PLAN
THIS AGREEMENT, by EOG Resources, Inc. (the "Company"),
WITNESSETH:
WHEREAS, the Company maintains the EOG Resources, Inc.
Change of Control Severance Plan (the "Plan");
WHEREAS, the Company retained the right in Section 8 of the
Plan to amend the Plan from time to time;
WHEREAS, the Board of Directors of the Company and the
Compensation Committee of the Board of Directors of the Company
separately approved resolutions authorizing the amendment of the
Plan; and
NOW, THEREFORE, the Company agrees that, effective September
10, 2002, Section (d) of the Plan is hereby amended and restated
in its entirety to provide as follows:
(d) Anything in this Plan to the contrary
notwithstanding, in the event it shall be determined
that any payment or distribution by the Company to or
for the benefit of the employee, whether paid or
payable or distributed or distributable pursuant to the
terms of this Plan or otherwise (a "Payment"), would be
subject to the excise tax imposed by section 4999 of
the Code or any interest or penalties with respect to
such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the
employee shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that
after payment by the employee of all taxes (including
any interest or penalties imposed with respect to such
taxes), including any Excise Tax imposed upon the Gross-
Up Payment, the employee retains an amount of the Gross-
Up Payment equal to the Excise Tax imposed upon the
Payments. Subject to the provisions of this
Section 2(d), all determinations required to be made
hereunder, including whether a Gross-Up Payment is
required and the amount of such Gross-Up Payment, shall
be made by a nationally recognized public accounting
firm chosen by the Company (the "Accounting Firm") at
the sole expense of the Company, which shall provide
detailed supporting calculations both to the Company
and the employee within 15 business days of the date of
termination of the employee's employment, if
applicable, or such earlier time as is requested by the
Company. If the Accounting Firm determines that no
Excise Tax is payable by the employee, the Accounting
Firm shall furnish the employee with an opinion that he
has substantial authority not to report any Excise Tax
on his federal income tax return. Any determination by
the Accounting Firm shall be binding upon the Company
and the employee. As a result of the uncertainty in
the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments, which
will not have been made by the Company should have been
made (an "Underpayment"), consistent with the
calculations required to be made hereunder. If the
Company exhausts its remedies pursuant hereto and the
employee thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any
such Underpayment shall be promptly paid by the Company
to or for the benefit of the employee.
The employee shall notify the Company in writing
of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of
the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business
days after the employee knows of such claim and shall
apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. The
employee shall not pay such claim prior to the
expiration of the thirty (30)-day period following the
date on which it gives such notice to the Company (or
such shorter period ending on the date that any payment
of taxes with respect to such claim is due). If the
Company notifies the employee in writing prior to the
expiration of such period that it desires to contest
such claim, the employee shall:
(i) give the Company any information
reasonably requested by the Company relating to
such claim,
(ii) take such action in connection with
contesting such claim as the Company shall
reasonably request in writing from time to time,
including (without limitation) accepting legal
representation with respect to such claim by an
attorney reasonably selected by the Company,
(iii) cooperate with the Company in good
faith to effectively contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim;
provided that the Company shall bear and pay directly
all costs and expenses (including additional interest
and penalties) incurred in connection with such contest
and shall indemnify and hold the employee harmless, on
an after-tax basis, for any Excise Tax or income tax,
including interest and penalties with respect thereto,
imposed as a result of such representation and payment
of costs and expenses. Without limitation on the
foregoing provisions hereof the Company shall control
all proceedings taken in connection with such contest
and, at its sole option, may pursue or forego any and
all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct
the employee to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner,
and the employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine,
provided that if the Company directs the employee to
pay such claim and xxx for a refund, the Company shall
advance the amount of such payment to the employee, on
an interest-free basis and shall indemnify and hold the
employee harmless, on an after-tax basis, from any
Excise Tax or income tax, including interest or
penalties with respect thereto, imposed with respect to
such advance or with respect to any imputed income with
respect to such advance, and further provided that any
extension of the statute of limitations relating to
payment of taxes for the taxable year of the employee
with respect to which such contested amount is claimed
to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall
be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the employee
shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
If, after the receipt by the employee of an amount
advanced by the Company pursuant hereto, the employee
becomes entitled to receive any refund with respect to
such claim, the employee shall (subject to the
Company's complying with the requirements hereof)
promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt
by the employee of an amount advanced by the Company
pursuant hereto, a determination is made that the
employee shall not be entitled to any refund with
respect to such claim and the Company does not notify
the employee in writing of its intent to contest such
denial of refund prior to the expiration of 30 days
after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the
amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be
paid.
IN WITNESS WHEREOF, the Company has executed this Agreement
this 24th day of September 2002.
EOG RESOURCES, INC.
By: /s/ XXXXXXXX XXXXXXX
Xxxxxxxx Xxxxxxx
Title: Vice President, Human Resources,
Administration and Corporate Secretary
