AMENDED AND RESTATED PRODUCTION PARTICIPATION PLAN SUPPLEMENTAL PAYMENT AGREEMENT
Exhibit
10.10
AMENDED
AND RESTATED
This
AMENDED AND RESTATED PRODUCTION PARTICIPATION PLAN SUPPLEMENTAL PAYMENT
AGREEMENT (the “Agreement”) is made as of the 14th day of
January, 2008, by and between XXXXXXX PETROLEUM CORPORATION, a Delaware
corporation (the “Company”), and J. XXXXXXX XXXX (the
“Executive”).
WITNESSETH:
WHEREAS, the Company maintains
the Xxxxxxx Petroleum Corporation Production Participation Plan, as amended and
restated from time to time (the “Plan”), and the Executive is a participant in
the Plan.
WHEREAS, in order to provide
the Executive with greater incentive to increase the profitability of the
Company, the Company has previously made payments to the Executive based on
payments to other executive officers of the Company pursuant to the Plan that
are in addition to the payments the Executive would otherwise receive from the
Company pursuant to the Plan.
WHEREAS, the Company and the
Executive desire to formalize the arrangement pursuant to which the Company
makes such additional payments to the Executive.
WHEREAS, capitalized terms
used but not defined herein shall have the meanings ascribed thereto in the
Plan.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and agreements set forth
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Annual Supplemental
Payment. As long as the Executive is an Employee, the Company
shall make a payment in cash to the Executive equal to the Supplemental Annual
Amount (as defined below), less any required withholding of income or employment
taxes or other authorized deductions or amounts applicable to payments made to
Employees of the Company, after the end of each Plan Year at such time as the
Company distributes Net Income and Net Proceeds to the other Participants
pursuant to Section 5.3 of the Plan. The “Supplemental Annual Amount”
for any Plan Year shall mean the amount, if any, by which (a) the average of (i)
the amount of the Company’s distributions of Net Income and Net Proceeds to the
Company’s Senior Vice President pursuant to Section 5.3 of the Plan for that
Plan Year and (ii) the amount of the Company’s distributions of Net Income and
Net Proceeds to the Company’s Chief Financial Officer pursuant to Section 5.3 of
the Plan for that Plan Year exceeds (b) the amount of the Company’s
distributions of Net Income and Net Proceeds to the Executive pursuant to
Section 5.3 of the Plan for that Plan Year.
2. Supplemental Payment upon
Termination of the Plan or Change in Control. As long as the
Executive is eligible under the Plan to receive a distribution of vested
interests pursuant to Section 7.2(a) or Section 7.2(b) of the Plan, upon
voluntary termination of the Plan by the Company or a Change in Control, the
Company shall make a payment in cash to the Executive equal to the Supplemental
Termination/Change in Control Amount (as defined below), less any required
withholding of income or employment taxes or other authorized deductions or
amounts applicable to payments made to Employees of the Company, at such time as
the Company distributes the value of the vested interests of each Employee
Participant pursuant to Section 7.2(a) of the Plan in the case of a voluntary
termination of the Plan or Section 7.2(b) of the Plan in the case of a Change in
Control. The “Supplemental Termination/Change in Control Amount”
shall mean the amount if any, by which (a) the average of (i) the value of
vested interests distributed by the Company to the Company’s Senior Vice
President pursuant to Section 7.2(a) or Section 7.2(b), as the case may be, of
the Plan and (ii) the value of vested interests distributed by the Company to
the Company’s Chief Financial Officer pursuant to Section 7.2(a) or Section
7.2(b), as the case may be, of the Plan exceeds (b) the value of vested
interests distributed by the Company to the Executive pursuant to Section 7.2(a)
or Section 7.2(b), as the case may be, of the Plan. Notwithstanding
the foregoing, this Section 2 shall not be applicable if, in the Plan Year prior
to the voluntary termination of the Plan or Change in Control, (a) the amount of
the Company’s distributions of Net Income and Net Proceeds to the Executive
pursuant to Section 5.3 of the Plan for that Plan Year was equal to or greater
than (b) the average of (i) the amount of the Company’s distributions of Net
Income and Net Proceeds to the Company’s Senior Vice President pursuant to
Section 5.3 of the Plan for that Plan Year and (ii) the amount of the Company’s
distributions of Net Income and Net Proceeds to the Company’s Chief Financial
Officer pursuant to Section 5.3 of the Plan for that Plan Year.
3. No Right to
Employment. The Company may terminate the employment of the
Executive as freely and with the same effect as if this Agreement were not in
existence.
4. No Impact on Production
Participation Plan. Except as expressly set forth herein, the
Executive shall not have any additional rights under the Plan. To the
extent there is a conflict between the terms of this Agreement and the terms of
the Plan (it being understood the provision of the additional payments expressly
set forth in this Agreement shall not constitute such a conflict), the terms of
the Plan shall control.
5. Entire
Agreement. Other than as expressly set forth in the Plan, this
Agreement contains the entire understanding between the Company and the
Executive with respect to the subject matter hereof and supersedes any other
oral or written understandings.
IN WITNESS WHEREOF, the
parties have caused this Agreement to be duly executed as of the day and year
first above written.
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XXXXXXX
PETROLEUM CORPORATION
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By:
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/s/
Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
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President
and Chief Executive Officer
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/s/
J. Xxxxxxx Xxxx
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J.
Xxxxxxx Xxxx
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