AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT AND CHANGE-IN-CONTROL EMPLOYEE SEVERANCE AGREEMENT
EXHIBIT 10.2
AMENDMENT
TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AND
CHANGE-IN-CONTROL EMPLOYEE SEVERANCE AGREEMENT
TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AND
CHANGE-IN-CONTROL EMPLOYEE SEVERANCE AGREEMENT
This Amendment (“Amendment”) to the Amended and Restated Employment Agreement effective July 6,
2010 (the “Employment Agreement”) and the Change-in-Control Employee Severance Agreement effective
as of October 1, 2009 (the “Change-in-Control Agreement”), in both cases by and between Delta
Petroleum Corporation (the “Company”) and Xxxx Xxxxx (the “Employee”), is effective as of December
29, 2010 (the “Amendment Effective Date”), except as otherwise provided herein, by and between the
Company and the Employee.
RECITALS
A. WHEREAS, Company and Employee entered into the Employment Agreement and the
Change-in-Control Agreement, which remain in force;
B. WHEREAS Company and Employee wish to amend the Employment Agreement and the
Change-in-Control Agreement to comply with Section 409A of the Internal Revenue Code of 1986, as
amended, and for other reasons;
C. NOW, THEREFORE, Company and Employee, for good and valuable consideration which is hereby
acknowledged, and the promises and covenants made herein, agree, effective as of the dates set
forth below, as follows.
AGREEMENT
Company and Employee agree as follows:
1. Amendment to Section 8 of the Employment Agreement. Section 8 of the Employment
Agreement is hereby amended in its entirety:
“Severance Benefits Following Nonrenewal of Agreement. In the event that (a) this
Agreement is not renewed by the Company (pursuant to Section 4) for any reason other than a
No Severance Benefits Event (as defined in Section 6(e)10) and (b) the employment of
Employee is subsequently terminated by the Company for any reason other than a No Severance
Benefits Event or due to his Disability within two (2) years following the expiration of the
Term of Employment hereunder due to nonrenewal by the Company, then Employee shall be
entitled to severance benefits (hereafter, the ‘Nonrenewal Severance Benefits’) provided
that, he first enters into a release agreement pursuant to Section 6(d). The Nonrenewal
Severance Benefits shall be computed and paid in the same manner as severance benefits are
computed and paid under Section 6(b)(1); provided, however, that the Additional Payment
under Section 6(b)(1) shall be reduced by the number of months that have elapsed between the
last day of the Term of Employment due to nonrenewal and the Employee’s actual termination
of employment date. For example, if the Employee’s employment is terminated (other than due
to a No Severance Benefits Event or his Disability) nine months after the end of the Term of
Employment due to the Company’s nonrenewal, he shall be entitled to an Additional Payment
pursuant to Section 6(b)(1) that is computed based on
15 months (24 - 9 = 15) instead of 24
months. In the event of a termination of employment as described in this Section 8,
Employee shall still be entitled to the benefits under Section 6(b)(2) for discounted COBRA
coverage. Notwithstanding the foregoing, this Section 8 shall be null and void if there is
a Severance Payment Event as defined in the Change-in-Control Agreement.”
2. Amendment to Section 37 of the Employment Agreement. Section 37 of the Employment
Agreement is hereby amended by adding the following paragraph to the end thereof:
“In the event that the Company becomes subject to the sanctions imposed pursuant to § 2716
of the Public Health Service Act by reason of this Agreement, the Parties shall cooperate to
amend this Agreement with the goal of giving Employee the economic benefits described herein
in a manner that does not result in such sanctions being imposed.”
3. Amendment to Section 3(b) of the Change-in-Control Agreement. Section 3(b) of the
Change-in-Control Agreement is hereby amended in its entirety as:
“The Company shall make the Severance Payment to Employee in a cash lump sum on the sixtieth
(60th) day following the Severance Payment Event.”
4. Amendment to Section 3(c) of the Change-in-Control Agreement. Section 3(c) of the
Change-in-Control Agreement is hereby amended in its entirety as:
“With respect to any Welfare Benefits provided to the Employee other than health insurance,
the Company shall pay to Employee in a cash lump sum on the sixtieth (60th) day
following the Severance Payment Event an amount equal to 36 times the excess of (i) the
monthly premium payable immediately prior to the Severance Payment Event for such Welfare
Benefits substantially similar to those which Employee (and Employee’s dependents) were
receiving at such time, over (ii) the aggregate monthly premiums(s) charged to the Employee
for such coverage at such time.
“The Company shall provide or arrange to provide the Employee, at the Company’s sole cost
for the Benefit Continuation Period, health insurance benefits that are substantially the
same as the health insurance benefits provided to the Employee (and the Employee’s spouse,
dependents and beneficiaries) immediately before the Severance Payment Event, except that
the health insurance benefits to which the Employee is entitled under this subsection (c)
will be subject to the Employee’s compliance with the restrictions set out in Sections 4
through 13, and will be reduced to the extent that comparable health insurance benefits are
received by the Employee from an employer other than the Company or any Subsidiary during
the Benefit Continuation Period.
“The fact that the cost of the participation by the Employee, or the Employee’s spouse,
dependents or beneficiaries, in any Welfare Benefit Plan was paid indirectly by the Company,
as a reimbursement or a credit to the Employee, before the Severance Payment
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Event does not mean that the corresponding Welfare Benefits were not “provided to the
Employee” by the Company for the purpose of this subsection (c). Notwithstanding the
foregoing, this subsection (c) shall not apply if the Severance Payment Event is
attributable to the death of Employee; in such event, the Designated Beneficiary, spouse and
dependents of Employee shall be entitled to whatever rights and benefits they have under the
Plan(s) at the time of death and nothing herein shall be construed to limit such rights and
benefits.
“Any determination required under this subsection (c) with respect to any affected Welfare
Benefit Plan shall be made in good faith by the Compensation Committee.”
5. Amendment to Section 3(d) of the Change-in-Control Agreement. Section 3(d) of the
Change-in-Control Agreement is hereby amended by substituting the following sentence for
the second sentence thereof:
“In addition to Stock Awards, any compensation due under a performance-based, long-term
incentive plan of the Company or a Subsidiary will automatically accelerate and become
nonforfeitable upon the Severance Payment Event, as though all requisite time had passed to
fully vest such compensation and all requisite performance goals attributable thereto have
been fully attained or satisfied, and any such compensation shall be paid to Employee in a
cash lump sum on the sixtieth (60th) day following the Severance Payment Event.”
6. Amendment to Section 3(d) of the Change-in-Control Agreement. Section 3(d) of the
Change-in-Control Agreement is hereby amended by substituting the following paragraph for the third
paragraph thereof:
“Notwithstanding any provision of this Agreement to the contrary, in order to receive
the severance benefits payable under Section 3 following a Severance Payment Event, Employee
(or his beneficiary or estate) must first execute and deliver to the Company an appropriate
release agreement (on a form provided by the Company) whereby the Employee agrees to release
and waive, in return for such severance benefits, any claims that he may have against the
Company including, without limitation, for unlawful discrimination (e.g., Title VII of the
Civil Rights Act) (the ‘Release’) and any revocation period therefor shall have lapsed;
provided, however, that the Release shall not release any claim or cause of action by or on
behalf of the Employee for (a) any payment or benefit that may be due or payable under this
Agreement or any employee benefit plan prior to the receipt thereof, (b) any willful failure
by the Company to cooperate with Employee in exercising his vested stock options or other
equity incentives in accordance with their terms, (c) non-payment of salary or benefits to
which he is entitled from the Company as of the Severance Payment Date, or (d) a breach of
this Agreement by the Company; provided further, that in the event that the Employee (or his
beneficiary or estate) does not deliver the executed Release to the Company, or the
revocation period applicable to the Release has not lapsed, on or prior to the twenty-eighth
(28th) (or such longer period as may be required by applicable law, but not to
exceed fifty-two (52) days) following the Severance Payment Event, any payments or benefits
scheduled to be paid under Section 3 on or prior to the day that that the Employee delivers
the executed
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Release to the Company (or, if later, the day that any revocation period applicable to the
Release lapses) shall be forfeited; and, provided further, that in the event that that the
Employee (or his beneficiary or estate) does deliver the executed Release to the Company and
the revocation period applicable to the Release has lapsed on or prior to the twenty-eighth
(28th) (or such longer period as may be required by applicable law, but not to
exceed fifty-two (52) days) following the Severance Payment Event, any payment or benefits
due Employee under Section 3(c) that were not paid (or made available) during such sixty
(60) day period pursuant to the first clause of this sentence shall be paid (or made
available) to Employee on the sixtieth (60th) day following the Severance Payment
Event.”
7. Amendment to Section 14(b) of the Change-in-Control Agreement. Section 14(b) of
the Change-in-Control Agreement is hereby amended by deleting the fourth sentence thereof.
8. Amendment to Section 14(c) of the Change-in-Control Agreement. Section 14(c) of
the Change-in-Control Agreement is hereby amended by substituting the following sentence for the
penultimate sentence thereof:
“Any extension of the statute of limitations relating to payment of taxes for the Employee’s
taxable year with respect to which such contested amount is claimed to be due is limited
solely to such contested amount.”
9. Amendment to Section 14(d) of the Change-in-Control Agreement. Section 14(d) of
the Change-in-Control Agreement is hereby amended by is hereby amended by substituting the
following four paragraphs for the first four paragraphs thereof:
“If the Employee becomes entitled to receive any refund with respect to any Excise Tax, the
Employee shall promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto) and the amount of any
Gross-up Payment or Underpayment received with respect to such Excise Tax.
“Any payment to the Employee under this Section 14 shall be limited to the amount,
determined by the Accounting Firm pursuant to Section 14(b), that reimburses the Employee
for (i) the amount of Federal, state, local, or foreign taxes imposed upon the Employee
pursuant to Section 4999 of the Code or similar provision of state, local, or foreign law as
a result of a Payment and (ii) the amount of additional Federal, state, local, or foreign
income or similar taxes imposed upon the Employee due to the Company’s reimbursement of the
taxes described in (i), and (iii) any additional tax on tax, penalties, or interest so as to
effect the intent of Section 14(a).
“Employee agrees to reasonably cooperate with the Company to minimize the amount of the
excess parachute payments, including, without limitation, assisting the Company in
establishing that some or all of the payments received by Employee that are “contingent on a
change,” as described in Section 280G(b)(2)(A) of the Code, are reasonable compensation for
personal services actually rendered by Employee before the date of such change or to be
rendered by Employee on or after the date of such change. Notwithstanding the foregoing,
Employee shall not be required to take any action which
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his attorney or tax advisor advises him in writing (i) is improper or (ii) exposes Employee
to personal liability. Employee may require the Company to deliver to Employee an
indemnification agreement, in form and substance reasonably satisfactory to him, as a
condition to taking any action required by this paragraph.
“The Company shall make any Gross-Up Payment or Underpayment required to be made under this
Section 14 in a cash lump sum within ten (10) Business Days of presentation to the Company
by the Employee of proof reasonably satisfactory to the Company that the taxes related to
such Gross-up Payment or Underpayment have been remitted by the Employee to the appropriate
taxing authority, but in no case shall any payment of a Gross-up Payment or Underpayment be
made later than the end of the Employee’s taxable year next following the Employee’s taxable
year in which the Employee remits the related taxes. Any Gross-Up Payment or Underpayment
that is not paid within 10 Business Days of receipt by the Company of Employee’s written
demand therefor shall thereafter be deemed delinquent, and the Company shall pay to Employee
immediately upon demand interest at the rate of 10% per annum from the date such Payment
becomes delinquent to the date of payment of such delinquent sum with interest. Any expense
borne by the Company, to the extent such expense is treated as a reimbursement of an expense
related to a tax audit or litigation addressing the existence or amount of a tax liability
described in this Section 14, shall be paid no later than he end of the Employee’s taxable
year following the Employee’s taxable year in which the taxes that are the subject of the
audit or litigation are remitted to the taxing authority, or where as a result of such audit
or litigation no taxes are remitted, the end of the Employee’s taxable year following the
Employee’s taxable year in which the audit is completed or there is a final and
nonappealable settlement or other resolution of the litigation. Amounts subject to
reimbursement under this Section 14 during a taxable year of the Employee shall not affect
the amounts subject to reimbursement in a any other taxable year of the Employee. The right
to reimbursement under this Section 14 shall not be subject to liquidation or exchange for
another benefit.”
10. Amendment to Section 14(e)(ii) of the Change-in-Control Agreement. Section
14(e)(ii) of the Change-in-Control Agreement is hereby amended in its entirety as follows:
“This Agreement is intended to comply with Section 409A of the Code and the Treasury
Regulations promulgated thereunder (‘Section 409A’) and shall be construed and interpreted
accordingly. It is the intention of the Parties that payments or benefits payable under
this Agreement not be subject to the additional tax or interest imposed pursuant to Section
409A. To the extent such potential payments or benefits are or could become subject to
Section 409A, the Parties shall cooperate to amend this Agreement with the goal of giving
Employee the economic benefits described herein in a manner that does not result in such tax
or interest being imposed. Notwithstanding anything in this Agreement to the contrary, the
following provisions shall apply.
“For purposes of this Agreement, whenever and to the extent that it would be necessary to
comply with the requirements of Section 409A, the Employee’s employment will be treated as
terminating when and only when Employee experiences a Separation from Service. For purposes
of this Agreement, the term ‘Separation from Service’ means
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when Employee dies, retires or otherwise has a termination of employment from the Company
that constitutes a ‘separation of service’ within the meaning of Treasury Regulation Section
1.409A-1(h)(1).
“If a payment that could be made under this Agreement would be subject to additional taxes
and interest under Section 409A , the Company in its sole discretion may accelerate some or
all of a payment otherwise payable under the Agreement to the time at which such amount is
includible in the income of Employee, provided that such acceleration shall only be
permitted to the extent permitted under Treasury Regulation Section 1.409A-3(j)(4)(vii) and
the amount of such acceleration does not exceed the amount permitted under Treasury
Regulation Section 1.409A-3(j)(vii).
“No payment to be made under this Agreement shall be made at a time earlier than that
provided for in this Agreement unless such payment is (i) an acceleration of payment
permitted to be made under Treasury Regulation Section 1.409A-3(j)(4) or (ii) a payment that
would otherwise not be subject to additional taxes and interest under Section 409A of the
Code.
“Each payment of benefits pursuant to Sections 3 or 14 shall be a separate payment to the
maximum extent permitted by Section 409A. The portion of any payment under this Agreement
that would constitute a ‘short-term deferral’ within the meaning of Treasury Regulation
Section 1.409A-1(b)(4),would meet the requirements for separation pay due to involuntary
separation from service under Treasury Regulation Section 1.409A-1(b)(9)(iii), or would
otherwise be exempt from Section 409A shall be treated as a separately identified and
determinable amount for purposes of Section 409A.
“Payments pursuant to Section 14 are intended to be payments made at a specified date or
fixed schedule pursuant to Treasury Regulation Section 1.409A-3(i)(1)(iv) or (v), and shall
be construed and interpreted accordingly.
“In the event that the Company becomes subject to the sanctions imposed pursuant to § 2716
of the Public Health Service Act by reason of this Agreement, the Parties shall cooperate to
amend this Agreement with the goal of giving Employee the economic benefits described herein
in a manner that does not result in such sanctions being imposed.”
11. Amendment to the Definition of “Change-in-Control” in Appendix A of the
Change-in-Control Agreement. The definition of “Change-in-Control” in Appendix A of the
Change-in-Control Agreement is amended by adding the following language to the end thereof.
“Notwithstanding anything to the contrary in this Agreement, no event shall constitute a Change-in-Control unless such event constitutes a change in control event pursuant to
Treas. Reg. Section 1.409A-3(i)(5).”
12. Amendment to the Definition of “Good Reason” in Appendix A of the Change-in-Control
Agreement. The definition of “Good Reason” in Appendix A of the Change-in-Control
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Agreement is hereby amended by substituting the following paragraph for the last paragraph
thereof :
“Notwithstanding the foregoing definition of ‘Good Reason’, the Employee cannot
terminate his employment hereunder for Good Reason unless he (i) first notifies the Board or
Compensation Committee in writing of the event (or events) which the Employee believes
constitutes a Good Reason event under subparagraphs (i), (ii), (iii), (iv), (v), (vi), or
(vii) (above) within 90 days from the date of such event (or, if later, the date of a
Change-in-Control), (ii) provides the Company with at least 30 calendar days to cure,
correct or mitigate the Good Reason event so that it either (1) does not constitute a Good
Reason event hereunder or (2) Employee agrees, in writing, that after any such modification
or accommodation made by the Company that such event shall not constitute a Good Reason
event, (iii) notifies the Company of his intent to terminate his employment for Good Reason
within 30 days after the end of such 30 calendar day period to cure, correct or mitigate,
and (iv) terminates his employment within 30 days of such notice.”
13. Amendment to the Definition of “Severance Payment” in Appendix A of the
Change-in-Control Agreement. The definition of “Severance Pay Event” in Appendix A of the
Change-in-Control Agreement is replaced in its entirety by the following:
“‘Severance Payment’ means an amount equal to
(i) three (3) times the sum of:
(A) the Employee’s highest Base Salary in effect at any time within 12
months before the Change-in-Control; plus
(B) an amount equal to the annual average of the annual bonuses (includes
any incentive cash compensation) paid or payable to the Employee by the
Company and any Subsidiary for the three fiscal years of the Company
immediately preceding the fiscal year in which the Change-in-Control occurs,
but not less than the greater of (a) Employee’s highest annual target bonus
during any of these three preceding fiscal years or (b) the Employee’s
targeted bonus for the fiscal year in which the Change-in-Control occurs;
(ii) less, but not below zero, the amount of any Additional Payment made pursuant to
the Employment Agreement.
“Notwithstanding the foregoing provisions of this definition, in the event that the
Severance Payment Event is attributable to termination of Employee’s employment due to his
death or Disability, the term ‘three (3) times’ shall be replaced by ‘two (2) times” in the
first line of this definition.”
“For clause (i)(B) of this definition: (a) the calculation of the average of the annual
bonuses of the Employee shall include a fiscal year during which the Employee was employed
by the Company and a participant in a bonus or incentive cash compensation
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Plan even if the Employee did not earn any bonus or incentive cash compensation for that
fiscal year; (b) the bonus or incentive cash compensation paid or payable to the Employee
for only part of a fiscal year of the Company shall be annualized (on the same basis as the
one on which the bonus or compensation was prorated) for that fiscal year to calculate the
average; and (c) the ‘targeted bonus’ for the fiscal year of the Company in which the
Change-in-Control occurs shall be the amount identified as ‘target’ by the Board (or the
committee thereof that administers the bonus or incentive cash compensation Plan) for the
Employee as a percentage of base salary, and not the maximum or any similar “stretch” goal
that may be achieved under such Plan.”
14. Amendment to the Definition of “Severance Pay Event” in Appendix A of the
Change-in-Control Agreement. The definition of “Severance Pay Event” in Appendix A of the
Change-in-Control Agreement is hereby amended by substituting the following sentence for the first
sentence thereof:
“‘Severance Payment Event’ means (i) the termination of the Employee’s employment with the
Company and all Affiliates, for any reason other than (a) voluntarily by the Employee
without Good Reason or (b) involuntarily by the Company for Cause, which termination occurs
at any time between the date of a Change-in-Control and the twenty-fourth (24th) month
immediately following the month in which the Change-in-Control occurred or (ii) a
Change-in-Control that occurs within six months of the termination of the Employee’s
employment with the Company and all Affiliates, for any reason other than (a) voluntarily by
the Employee without Good Reason or (b) involuntarily by the Company for Cause.”
15. Miscellaneous.
a. The terms and provisions of the Employment Agreement and the Change-in-Control Agreement
shall remain in full force and effect except as specifically modified by this Amendment.
b. This Amendment may be executed and delivered by facsimile in any number of counterparts and
by the parties hereto, each of which when so executed shall be deemed to be original and all of
which, when taken together, shall constitute one and the same agreement.
c. The Employment Agreement, the Change-in-Control Agreement, and this Amendment set forth the
entire understanding of the parties relating to the subject matter hereof and thereof and supersede
all prior agreements and understandings among or between any of the parties relating to the subject
matter hereof.
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The parties hereby execute this Amendment effective as of the date set forth above.
Place:
|
Denver, CO | Place: | Denver, CO | |||
Date:
|
December 29, 2010 | Date: | December 29, 2010 |
DELTA PETROLEUM CORP.
| /s/ Xxxxx Xxxxx | /s/ Xxxx Xxxxx | |||
| Xxxx Xxxxx | ||||
By:
|
Xxxxx Xxxxx | |||
Its
|
CFO | |||
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