AMENDMENT TO EMPLOYMENT AGREEMENTEmployee Retention Agreement |
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CIMAREX ENERGY CO | Key Production Company, Inc. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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AMENDMENT TO EMPLOYMENT AGREEMENT This Amendment to Employment Agreement between Cimarex Energy Co, the successor to Key Production Company, Inc. (the "Employer") and Thomas E. Jorden (the "Employee") is effective as of January 1, 2009. 1. Effective as of October 25, 1993, Key Production Company, Inc., the predecessor to the Employer, and the Employee entered into an Employment Agreement (the "Agreement"). 2. The Agreement expired by its terms in November 1996, provided, however, that Article VIII of the Agreement ("Article VIII") provides that if the Employee continues employment with the Company or its successor after the term of the Agreement (which Employee has done) and is terminated without cause following a change of control, Employee is entitled to certain payments upon the change of control of the Employer. 3. Article VIII provides for deferred compensation within the meaning of section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), which became effective January 1, 2005. 4. The Employee and the Employer wish to amend Article VIII in a manner consistent with Code § 409A. Article VIII shall be amended in its entirety to provide as follows: ARTICLE VIII Section 8.1. Change of Control. If the Employee continues as an employee of the Employer after the term of this Agreement, as provided in Section 1.2, and if during the period of such extended employment the Employee is terminated without cause following a "Change in Control" (as defined below), the Employee shall be entitled to payment (on a date selected by the Company) within 30 days after the closing of the transaction or transactions that constitute the "Change in Control" in a single lump sum of an amount equal to twice the Employee's annual salary at the rate in effect when the Change in Control occurs. The term "Change in Control" as used herein means the occurrence of any of the following events on or after the Effective Date of this Plan, provided that in the event Code section 409A applies to payments under this Plan, a Change of Control shall be deemed to have occurred only if the event is also a change of control within the meaning of Code section 409A and the regulations and other guidance promulgated thereunder or not inconsistent therewith. (i) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (x) the then outstanding shares of common stock (the "Common Stock") of the Company (the "Outstanding Company Common stock") or (y) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"); provided, however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control: (A) any acquisition directly from the Company, (B) any acquisition by the Company, (C) any acquisition by any employee benefit plan (or related trust) sponsored or 1 maintained by the Company or any corporation controlled by the Company, (D) any acquisition by any corporation pursuant to a transaction that complies with clauses (A) and (B) of paragraph (iii) below; or (ii) During any period of twelve months beginning after the Effective Date, individuals who, as of the Effective Date, constitute the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director at the beginning of such twelve-month period, whose election, appointment or nomination for election by the Company's stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an act |
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