AMENDMENT TO EMPLOYMENT AGREEMENT AND CHANGE-IN-CONTROL EXECUTIVE SEVERANCE AGREEMENT
EXHIBIT 10.4
AMENDMENT
TO
EMPLOYMENT AGREEMENT
AND
CHANGE-IN-CONTROL EXECUTIVE SEVERANCE AGREEMENT
TO
EMPLOYMENT AGREEMENT
AND
CHANGE-IN-CONTROL EXECUTIVE SEVERANCE AGREEMENT
This Amendment (“Amendment”) to the Employment Agreement made and entered into as of May 5, 2005
(the “Employment Agreement”) and the Change-in-Control Executive Severance Agreement executed and
effective on April 30, 2007 (the “Change-in-Control Agreement”), in both cases by and between Delta
Petroleum Corporation (the “Company”) and Xxxxxxx X. Xxxxxxxx (the “Executive”), is effective as of
December 29, 2010 (the “Amendment Effective Date”), except as otherwise provided herein, by and
between the Company and the Executive.
RECITALS
A. WHEREAS, Company and Executive entered into the Employment Agreement and the
Change-in-Control Agreement, which remain in force;
B. WHEREAS Company and Executive 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 Executive, 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 Executive agree as follows:
1. Amendment to Sections 2(b) and 6(a)(1) of the Employment Agreement. Sections 2(b)
and 6(a)(1) of the Employment Agreement are hereby amended by replacing the term “Section 6(d)”
where such term appears in Sections 2(b) and 6(a)(1) by the term “Section 6(e).”
2. Amendment to Section 2(b) of the Employment Agreement. Section 2(b) of the
Employment Agreement is hereby amended by substituting the following sentence for the last sentence
thereof:
“The Company shall pay Executive the earned Bonus amount within the earlier of: (i) thirty
days (30) from the submission of the preliminary audit results for the end of the fiscal
year; (ii) ninety days (90) days after the end of the Bonus Period; (iii) thirty (30) days
after his Employment Period, as applicable; or, (iv) March 15 of the year following the end
of the Bonus Period.”
3. Amendment to Section 6(b)(1) of the Employment Agreement. Section 6(b)(1) of the
Employment Agreement is hereby amended by substituting the following sentence for the last sentence
thereof:
“The Company shall make the Additional Payment to Executive in a cash lump sum on the
sixtieth (60th) day following the Termination Date.”
4. Amendment to Section 6(d) of the Employment Agreement. Section 6(d) of the
Employment Agreement is hereby amended in its entirety as follows:
“Release Agreement. Notwithstanding any provision of this Agreement to the contrary, in
order to receive the severance benefits payable under either Section 6(b) or
Section 8 of this Agreement, or under Section 3 of the Change-in-Control
Executive Severance Agreement executed and effective on April 30, 2007 between Company and
Executive (as such may be amended from time to time) (the ‘Change-in-Control Agreement’), as
applicable, Executive (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
Executive 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 Executive 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 Executive 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 Termination Date, or (d) a breach of this Agreement by the Company; provided further,
that in the event that the Executive (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 Executive’s
termination, any payments or benefits scheduled to be paid under Section 6(b) or
Section 8 of this Agreement, or under Section 3 of the Change-in-Control
Agreement shall be forfeited.”
5. Amendment to Section 6(e)(9) of the Employment Agreement. Section 6(e)(9) of the
Employment Agreement is hereby amended by substituting the following sentence for the last sentence
thereof:
“Notwithstanding the foregoing definition of Good Reason, the Executive 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 Executive believes constitutes a
Good Reason event under subparagraphs (A), (B) or (C) (above) within 90 days from the date
of such event, (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) Executive 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 and, (iv) terminates employment within
30 days of such notice.”
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6. 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
Executive 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 Executive 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 Executive’s actual termination
of employment date. For example, if the Executive’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, Executive 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.”
7. New Section 39 of the Employment Agreement. The Employment Agreement is hereby
amended by appending the following new Section 39:
“Section 409A. This Agreement is intended to comply with Section 409A of the Code
and the Treasury Regulations promulgated thereunder (‘Section 409A’) and shall be construed
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
Executive 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.
“If Executive is a ‘specified employee’ within the meaning of Treasury Regulation Section
1.409A-1(i) as of the date of Executive’s Separation from Service, as defined below,
Executive shall not be entitled to any severance payment or benefit pursuant to Section 6(b)
or Section 8 that is subject to the provisions of Section 409A(a)2(B)(i) of the Code (a
‘Specified Employee Payment’) until the date which is six (6) months after Executive’s
Separation from Service; provided, however, that in the event that the provisions of Section
XI of Notice 2010-6 permitting the Agreement to be treated as having been amended as of
January 1, 2009 do not apply to Executive, Executive shall
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not be entitled to any Specified
Employee Payment until the later of (i) eighteen (18) months following the Amendment
Effective Date and (ii) the date which is six (6) months after Executive’s Separation from
Service and provided further that, notwithstanding the foregoing, payment of any Specified
Employee Payment shall be made within 30 days of Executive’s death, should he die within the
applicable eighteen or six month period. The provisions of this Section 39 shall only apply
if, and to the extent, required to avoid the imposition of tax, penalty or interest pursuant
to Section 409A. Any payment that is delayed pursuant to this paragraph shall be paid on
the day following the lapse of the applicable six or eighteen month period.
“For purposes of this Agreement, whenever and to the extent that it would be necessary to
comply with the requirements of Section 409A, the Executive’s employment will be treated as
terminating when and only when Executive experiences a Separation from Service. For
purposes of this Agreement, the term ‘Separation from Service’ means when Executive 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 Executive, 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 Section 6(b) or Section 8 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.
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 Executive the economic benefits described
herein in a manner that does not result in such sanctions being imposed.”
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8. 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 Executive in a cash lump sum on the
sixtieth (60th) day following the Severance Payment Event.”
9. 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 Executive other than health
insurance, the Company shall pay to Executive 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 Executive (and Executive’s
dependents) were receiving at such time, over (ii) the aggregate monthly premiums(s) charged
to the Executive for such coverage at such time.
“The Company shall provide or arrange to provide the Executive, 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 Executive (and the Executive’s spouse,
dependents and beneficiaries) immediately before the Severance Payment Event, except that
the health insurance benefits to which the Executive is entitled under this subsection (c)
will be subject to the Executive’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 Executive 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 Executive, or the Executive’s spouse,
dependents or beneficiaries, in any Welfare Benefit Plan was paid indirectly by the Company,
as a reimbursement or a credit to the Executive, before the Severance Payment Event does not
mean that the corresponding Welfare Benefits were not “provided to the Executive” 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 Executive; in such event, the Designated Beneficiary, spouse and dependents of Executive
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.”
10. 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
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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 Executive in a
cash lump sum on the sixtieth (60th) day following the Severance Payment Event.”
11. 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,
Executive (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 Executive
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 Executive 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 Executive 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 Executive (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 Executive delivers the executed 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 Executive (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 Executive 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 Executive on the sixtieth
(60th) day following the Severance Payment Event.”
12. 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.
13. 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:
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“Any extension of the statute of limitations relating to payment of taxes for the
Executive’s taxable year with respect to which such contested amount is claimed to be due is
limited solely to such contested amount.”
14. 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 Executive becomes entitled to receive any refund with respect to any Excise Tax, the
Executive 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 Executive under this Section 14 shall be limited to the amount,
determined by the Accounting Firm pursuant to Section 14(b), that reimburses the Executive
for (i) the amount of Federal, state, local, or foreign taxes imposed upon the Executive
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 Executive 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).
“Executive 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 Executive 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 Executive before the date of such change or to be
rendered by Executive on or after the date of such change. Notwithstanding the foregoing,
Executive shall not be required to take any action which his attorney or tax advisor advises
him in writing (i) is improper or (ii) exposes Executive to personal liability. Executive
may require the Company to deliver to Executive 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 Executive of proof reasonably satisfactory to the Company that the taxes related to
such Gross-up Payment or Underpayment have been remitted by the Executive 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 Executive’s taxable year next following the Executive’s
taxable year in which the Executive remits the related taxes. Any Gross-Up Payment or
Underpayment that is not paid within 10 Business Days of receipt by the Company of
Executive’s written demand therefor shall thereafter be deemed delinquent, and the Company
shall pay to Executive 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
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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 Executive’s taxable year following the Executive’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
Executive’s taxable year following the Executive’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 Executive shall not affect the amounts subject to reimbursement in a any other taxable
year of the Executive. The right to reimbursement under this Section 14 shall not be
subject to liquidation or exchange for another benefit.”
15. 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
Executive 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 Executive’s employment will be treated as
terminating when and only when Executive experiences a Separation from Service. For
purposes of this Agreement, the term ‘Separation from Service’ means when Executive 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 Executive, 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.
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“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 Executive the economic benefits described
herein in a manner that does not result in such sanctions being imposed.”
16. 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).”
17. 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 Agreement is
hereby amended by substituting the following paragraph for the last paragraph thereof :
“Notwithstanding the foregoing definition of ‘Good Reason’, the Executive 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 Executive 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) Executive 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.”
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18. 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 Executive’s highest Base Salary in effect at any time within 12
months before the Change-in-Control; plus
(B) the highest amount of the annual automobile allowance payable to the
Executive within 12 months before the Change-in-Control; plus
(C) an amount equal to the annual average of the annual bonuses (includes
any incentive cash compensation) paid or payable to the Executive 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) Executive’s highest annual target bonus
during any of these three preceding fiscal years or (b) the Executive’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 Executive’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)(C) of this definition: (a) the calculation of the average of the annual
bonuses of the Executive shall include a fiscal year during which the Executive was employed
by the Company and a participant in a bonus or incentive cash compensation Plan even if the
Executive 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 Executive 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 Executive as a
percentage of base salary, and not the maximum or any similar “stretch” goal that may be
achieved under such Plan.”
19. 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:
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“‘Severance Payment Event’ means (i) the termination of the Executive’s employment with the
Company and all Affiliates, for any reason other than (a) voluntarily by the Executive
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 Executive’s
employment with the Company and all Affiliates, for any reason other than (a) voluntarily by
the Executive without Good Reason or (b) involuntarily by the Company for Cause.”
20. 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.
The parties hereby execute this Amendment effective as of the date set forth above.
Place:
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Denver, CO | Place: | Denver, CO | |||
Date:
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December 29, 2010 | Date: | December 29, 2010 |
DELTA PETROLEUM CORP.
/s/
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Xxxxx Xxxxx
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/s/ Xxxxxxx X. Xxxxxxxx
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||||||
By:
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Xxxxx Xxxxx
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|||||||
Its
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CFO
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|||||||
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