EXHIBIT 10.4
PIONEER NATURAL RESOURCES
COMPANY
AMENDMENT TO CHANGE IN CONTROL
AGREEMENT
WHEREAS, Pioneer Natural Resources
Company (the “ Parent ”), Pioneer Natural
Resources USA Inc. (the “ Employer ”) and the
employee whose name appears on the signature page of this Amendment
(the “ Employee ”) have previously entered into
a Change in Control Agreement (the “ Agreement
”) which provides the Employee with certain termination
benefits in the event Employee’s employment is terminated in
certain circumstances following the occurrence of a change in
control;
WHEREAS, Section 409A of the
Internal Revenue Code of 1986, as amended (“ Section
409A ”), imposes certain limitations and restrictions on
the times at which certain types of compensation, including
severance benefits, may be payable;
WHEREAS, all documents that provide
for the payment of compensation that is subject to Section 409A
must be brought into compliance with the requirements of Section
409A on or before December 31, 2008, or the employee to whom such
compensation is payable will be subjected to certain adverse tax
consequences, including, but not limited to, having to pay an
additional tax of at least 20% on such compensation; and
WHEREAS, the parties desire to adopt
amendments to the Agreement to avoid any such adverse tax
consequences for the Employee by reason of the compensation
provided herein and certain other amendments;
NOW, THEREFORE, the Agreement is
amended in the manner set forth below:
1. Paragraph
3 of the Agreement is amended to delete the definitions of
“Change in Control” and “Date of
Termination” in their entirety, and to add the following
definitions in appropriate alphabetical order:
“Change in
Control” shall
mean an event that constitutes a “change in control” as
defined in Parent’s LTIP, except that , solely for purposes of determining whether
Employee is eligible for benefits under this Agreement due to a
termination of employment occurring after a Potential Change in
Control, but prior to the occurrence of a Change in Control, an
event shall only constitute a Change in Control if it both
qualifies as such under Parent’s LTIP and is
a change in the ownership or effective control or in the ownership
of a substantial portion of the assets of the Parent for purposes
of Section 409A of the Code. Any modification to the definition of
“change in control” in Parent’s LTIP (including
by virtue of the adoption by the Parent of a successor plan thereto
setting forth a modified definition of “change in
control”) adopted after the Effective Date shall apply for
purposes of this Agreement, except that any modification to such definition adopted on
or after, or within 180 days prior to, a Change in Control or
Potential Change
in Control shall not apply in
determining the definition of such term under this Agreement unless
such amendment is favorable to Employee; and provided further that
any change to the definition of a
change in control in Parent’s LTIP adopted in 2008 to comply
with the requirements of Section 409A of the Code shall be deemed
to be favorable to Employee.
“ Code ”
shall mean the Internal Revenue Code of 1986, as amended, or any
successor provision thereto.
“ Date of
Termination ” shall mean
(1) In the case of a
termination for which a Notice of Termination is required, the date
of receipt of such Notice of Termination or, if later, the date
specified therein; and
(2) In all other cases,
the actual date on which Employee’s employment
terminates;
provided, however, that if Employee
continues to provide or, in the 12 month period following such
termination of employment, Employee is expected to provide,
sufficient services that, under the Parent’s written and
generally applicable policies regarding what constitutes a
“separation from service” for purpose of Section 409A
of the Code, Employee does not incur a separation of service for
purposes of such Section 409A on the date of termination,
Employee’s Date of Termination for purposes of this Agreement
shall be the date on which such Employee incurs a separation from
service under such policies.
“ Parent’s
LTIP ” shall mean the Parent’s 2006 Long-Term
Incentive Plan, as the same may be amended from time to time, or
any successor plan thereto.
2. References
throughout the Agreement to the term “LTIP” shall be
changed to “Parent’s LTIP” and the phrase
“the Internal Revenue Code of 1986, as amended (the
“Code” and such payments, collectively, the
“Covered Payments”)” in paragraph 5(e) shall be
changed to “the Code (such payments, collectively, the
“Covered Payments”).”
3. Paragraph
5 is amended to delete subparagraph (a)(3) thereof, and to insert a
new subparagraph (a)(3) to read as follows:
(3) A Separation
Payment in an amount equal to Employee’s Base Salary, which
shall be paid 10 days following Employee’s Date of
Termination, provided
that , if, at the Date of
Termination, Employee is a “specified employee” within
the meaning of Section 409A of the Code, as determined in
accordance with the procedures specified or established by the
Parent in accordance with such Section 409A and the regulations
thereunder (a “
Specified Employee ” ), and the Separation Payment is payable due to
Disability or a voluntary retirement on or after Normal Retirement
Date, the Separation Payment shall be made six months and one day
after Employee’s Date of Termination. In the event that the
Separation Payment is made six months and one day after the Date of
Termination, it shall be paid with interest from the Date of
Termination at a rate equal
to Employer’s cost of borrowing under its
principal credit facility as in eff
