FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 99.3
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement (this “Amendment”), dated as of the 19th day of
November, 2008, is entered into by and between CPNO Services, L.P. (“Employer”) and Xxxx X. Xxxxx
(“Employee”). Capitalized terms not otherwise defined in this Amendment shall have the meaning set
forth in the Employment Agreement (as defined below).
WHEREAS, Employee and Employer entered into the Employment Agreement dated as of August 1,
2005 (the “Employment Agreement”);
WHEREAS, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) has made
it necessary to amend the Employment Agreement in certain respects and, in connection therewith,
Employee and Employer desire to enter into this Amendment;
NOW, THEREFORE, in consideration of the premises and mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Employer and Employee hereby agree as follows:
1. The following provisions shall be added at the end of Section 4.2 of the Employment
Agreement:
“Any bonus earned by Employee pursuant to this Section 4.2 will be paid no later
than March 15th following the end of the calendar year to which it
relates”.
2. The following provisions shall be added at the end of Section 5.2 of the Employment
Agreement:
“Any severance payment pursuant to this Section 5.2 shall be paid promptly following
the effective date of the termination of Employee’s employment but in no event later
than two and one-half months following the end of the calendar year in which such
termination occurred.”
3. The first two sentences of Section 5.3 of the Employment Agreement shall be deleted and the
following shall be substituted therefor:
“In the event Employee is terminated on or within one year following a Change of
Control of ScissorTail or a Change of Control of Company for reasons other than
those set forth in Section 5.1(a), Employee shall be entitled to a severance payment
as set forth in Section 5.2, which payment shall be made promptly following the
effective date of the termination of Employee’s employment but in no event later
than two and one-half months following the end of the calendar year in which such
termination occurred. In addition, pursuant to the terms of the LTIP and the
applicable awards, upon a Change of Control of Company or a Change of Control of
Scissortail, all outstanding awards (including, without limitation, those specified
in Section 4.3 above) shall automatically vest or become exercisable, as the case
may be; provided, however, that with respect to any such award that constitutes
deferred compensation within the meaning of Section 409A of the Code, the timing of
payment of such award shall not be accelerated unless the Change of Control
constitutes a 409A Change of Control.”
4. The following definition shall be added to the end of Section 5.3 of the Employment
Agreement:
“409A Change of Control’ shall mean the occurrence of a change of control event (as
defined in Treasury regulation section 1.409A-3(i)(5)) with respect to the Company.”
5. The Employment Agreement shall be revised to add the following new Section 16:
“16. Application of Section 409A of the Internal Revenue Code.
(a) Delayed Payment Restriction. Notwithstanding any provision in this
Agreement to the contrary, if any payment or benefit provided for herein or pursuant
to any other agreement or plan of the Company to which Employee is entitled to any
payment or benefit would be subject to additional taxes and interest under Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”) if the Employee’s
receipt of such payment or benefit is not delayed until the Section 409A Payment
Date, then such payment or benefit shall not be provided to Employee (or Employee’s
estate, if applicable) until the Section 409A Payment Date. For purposes of this
Agreement, “Section 409A Payment Date” shall mean the earlier of (1) the date of the
Employee’s death or (2) the date which is six months after the date of termination
of the Employee’s employment with the Company. Employee hereby agrees to be bound by
the Company’s determination of its “specified employees” (as such term is defined in
Section 409A of the Code) in accordance with any of the methods permitted under the
regulations issued under Section 409A of the Code.
(b) Separation from Service. For purposes of this Agreement,
references Employee’s termination of employment will be interpreted consistently
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with the term “separation from service” within the meaning of Section 409A of
the Code.
(c) References to Section 409A. References in this Agreement to
Section 409A of the Code include both that section of the Code itself and any
regulations and authoritative guidance promulgated thereunder.”
6. This Amendment may be executed in two or more counterparts each of which shall be deemed an
original but which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first written
above.
| CPNO SERVICES, L.P. | ||||||
| By: CPNO Services GP, L.L.C., general partner | ||||||
| By: | /s/ Xxxx X. Xxxxx, Xx.
|
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| Name: | Xxxx X. Xxxxx, Xx. | |||||
| Title: | Chairman of the Board and Chief Executive Officer | |||||
| /s/ Xxxx X. Xxxxx | ||||||
| XXXX X. XXXXX | ||||||
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