Severance Plan

 

 

 

EX-10.1 2 d862786dex101.htm EX-10.1

Exhibit 10.1

AMENDED AND RESTATED

CHANGE IN CONTROL SEVERANCE PROTECTION AGREEMENT

BILL BARRETT CORPORATION

This AMENDED AND RESTATED CHANGE IN CONTROL SEVERANCE PROTECTION AGREEMENT (the “Agreement”) is entered into as of January 1, 2015 (the “Effective Date”), between Bill Barrett Corporation (“Parent”), a Delaware corporation, and                      (the “Employee”).

RECITALS

WHEREAS, the Employee is a key employee of Parent and serves as Parent’s [title]; and

WHEREAS, the Employee and Parent desire to set forth the terms and conditions of the Employee’s compensation in the event of a termination of the Employee’s employment in connection with a Change in Control (as defined below); and

WHEREAS, in the event of a Change in Control, the Employee may be vulnerable to dismissal without regard to the quality of the Employee’s service, and Parent believes that it is in the best interests of Parent to enter into this Agreement in order to ensure fair treatment of the Employee and to reduce the distractions and other adverse effects upon the Employee’s performance which are inherent upon a Change in Control; and

WHEREAS, this Agreement is not intended to be and shall not constitute an employment contract between Parent and the Employee or to impose any obligation upon Parent to retain the Employee, and the Employee acknowledges that the Employee is an “at-will” employee of Parent and that Parent may terminate the Employee’s employment at any time with or without cause and with or without notice; and

WHEREAS, Parent and Employee are parties to an existing Change in Control Severance Protection Agreement in existence on the Effective Date (the “Prior Agreement”); and

WHEREAS, Parent and Employee desire to amend and restate the Prior Agreement as set forth herein.


NOW, THEREFORE, for and in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

1. Definitions. For purposes hereof, the following terms shall have the following meanings:

(a) “Affiliate” shall mean, with respect to any Person (as defined herein), any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such Person. A Person shall be deemed to control another Person for purposes of this definition if such Person possesses, directly or indirectly, the power (i) to vote the securities or other ownership interests having ordinary voting power to elect a majority of the Board of Directors of a corporation or other Persons performing similar functions for any other type of Person, or (ii) to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, as general partner, as trustee or otherwise.

(b) “Annual Compensation Amount” shall mean the Employee’s annualized base salary in effect immediately preceding the Employee’s termination of employment (disregarding any reduction thereto which constitutes grounds for Good Reason), including all amounts of the Employee’s base salary that are deferred under any qualified and non-qualified employee benefit plans of Parent or any other agreement or arrangement, plus the greater of (i) the Employee’s target annual bonus opportunity in effect immediately preceding the Employee’s termination (disregarding any reduction thereto which constitutes grounds for Good Reason) or (ii) the average of the actual annual bonuses earned by the Employee over the three-year period immediately preceding the calendar year in which the Employee’s employment terminated.

(c) “Annual Incentive Plan” shall mean any annual incentive plan maintained by the Parent or an Affiliate covering the Employee as of the date of the Employee’s Qualifying Termination.

(d) “Board” shall mean the Board of Directors of Parent.

(e) “Cause” shall mean (i) if the Employee is party to an employment agreement or similar agreement with Parent and such agreement includes a definition of Cause, the definition contained therein or (ii) if no such employment or similar agreement exists, it shall mean (A) the Employee’s failure to perform the duties reasonably assigned to him or her by Parent, (B) a good faith finding by Parent of the Employee’s dishonesty, gross negligence or misconduct, (C) a material breach by the Employee of any written Parent employment policies or rules or (D) the Employee’s conviction for, or his or her plea of guilty or nolo contendere to, a felony or any other crime which involves fraud, dishonesty or moral turpitude. Notwithstanding the foregoing, in order for the Employee’s termination to be for Cause pursuant to clauses (A) or (C) above, the Employee must be given written notice of the condition(s) giving rise to Cause and must be given a period of at least 30 days to cure such condition(s), to the extent capable of cure (as determined by the Committee).

 

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(f) “Change in Control” of Parent shall mean the occurrence of one of the following events:

(i) An acquisition (other than directly from Parent) of any voting securities of Parent (the “Voting Securities”) by any Person (as defined herein) immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of the combined voting power of Parent’s then outstanding Voting Securities; provided, however, that in determining whether a Change in Control has occurred, Voting Securities which are acquired in a Non-Control Acquisition (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. A “Non-Control Acquisition” shall mean an acquisition by (1) an employee benefit plan (or a trust forming a part thereof) maintained by (x) Parent or (y) any corporation or other Person of which a majority of its voting power or its equity securities or equity interest is owned directly or indirectly by Parent (a “Subsidiary”), (2) Parent or any Subsidiary, or (3) any Person in connection with a Non-Control Transaction (as defined in paragraph (iii)(c) below).

(ii) The individuals who are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that if the election, or nomination for election by Parent’s stockholders, of any new director was approved by a vote of at least a majority of the then Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board; provided, further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (defined as any solicitation subject to Rules 14a-1 to 14a-10 promulgated under the Exchange Act by any Person or group of Persons for the purpose of opposing a solicitation subject to Rules 14a-1 to 14a-10 by any other Person or group of Persons with respect to the election or removal of directors at any annual or special meeting of stockholders of Parent) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or

(iii) Consummation of:

(1) A merger, consolidation or reorganization involving Parent, unless

(a) the stockholders of Parent, immediately before such merger, consolidation or reorganization, own, directly or indirectly, immediately following such merger, consolidation or reorganization, a majority of the combined voting power of the outstanding Voting Securities of the corporation resulting from such merger or consolidation or reorganization (the “Surviving Corporation”) or a corporation beneficially owning, directly or indirectly, a majority of the Voting Securities of the Surviving Corporation (a “Parent Corporation”) in substantially the same proportion as their ownership of the Voting Securities immediately before such merger, consolidation or reorganization, and

 

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(b) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute a majority of the members of the board of directors of either the Surviving Corporation or a Parent Corporation, and

(c) no Person (other than Parent, any Subsidiary, any employee benefit plan (or any trust forming a part thereof) maintained by Parent, the Surviving Corporation or any Subsidiary, or any Person who, immediately prior to such merger, consolidation or reorganization had Beneficial Ownership of 30% or more of the then outstanding Voting Securities) owns, directly or indirectly, 30% or more of the combined voting power of the Surviving Corporation’s then outstanding voting securities (unless there is a Parent Corporation, in which event of the Parent Corporation’s then outstanding voting securities).

A transaction described in the immediately preceding clauses (a) through (c) shall herein be referred to as a “Non-Control Transaction”;

(2) A complete liquidation or dissolution of Parent; or

(3) The sale or other disposition of all or substantially all of the assets of Parent to any Person (other than a transfer to a Subsidiary).

Notwithstanding paragraphs (i), (ii) or (iii) above, a Change in Control shall not be deemed to occur solely because any Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of the outstanding Voting Securities as a result of the acquisition of Voting Securities by Parent which, by reducing the number of Voting Securities outstanding, increases the proportionate number of shares Beneficially Owned by the Subject Person, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Voting Securities by Parent, and after such share acquisition by Parent, the Subject Person becomes the Beneficial Owner of any additional Voting Securities which increases the percentage of the then outstanding Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur.

Notwithstanding paragraphs (i), (ii) or (iii) above, to the extent that any amounts payable under this Agreement to the Employee constitutes a deferral of compensation subject to Section 409A, and if this Agreement provides for a payment event or a change in the time or form of payment of such amounts upon a Change in Control, then no Change in Control shall be deemed to have occurred upon an event described in paragraphs (i), (ii) or (iii) above unless the event would also constitute a change in ownership or effective control of, or a change in the ownership of a substantial portion of the assets of, the Company under Section 409A.

(g) “Code” shall mean the Internal Revenue Code of 1986, as amended.

 

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(h) “Compensation Committee” shall mean the compensation committee of the Board.

(i) “Current Year Actual Bonus” shall mean the bonus the Employee would earn under the Annual Incentive Plan based on actual performance (if measurable, as determined in the sole discretion of the Compensation Committee) through the date of the Employee’s Qualifying Termination against applicable performance goal(s) adjusted to reflect the shortened performance period as determined by the Compensation Committee, in its sole discretion.

(j) “Disability” shall mean a physical or mental infirmity which impairs the Employee’s ability to perform substantially his or her duties for a period of one hundred eighty (180) consecutive days.

(k) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

(l) “Good Reason” shall include any of the following:

(i) Parent’s assignment to the Employee of duties materially and adversely inconsistent with, or a substantial adverse alteration in the nature of, the Employee’s responsibilities in effect immediately prior to the Change in Control;

(ii) a material reduction in either the Employee’s salary or target annual bonus opportunity (if a target annual bonus opportunity has been established for the Employee) as each is in effect on the date of a Change in Control;

(iii) Parent’s relocation of the Employee’s primary place of employment to any place in excess of 50 miles from the Employee’s place of employment immediately prior to the Change in Control without the Employee’s written consent, except for reasonably required travel by the Employee on Parent’s business;

(iv) any material breach by Parent of any provision of this Agreement; or

(v) any failure by Parent to obtain the assumption of this Agreement by any successor (by merger, consolidation or otherwise) or assign of Parent.

Notwithstanding the foregoing, or any other provision of this Agreement to the contrary, any assertion by the Employee of a termination for Good Reason shall not be effective unless all of the following conditions are satisfied: (x) the Employee must provide written notice to Parent of the existence of such condition(s) within 60 days of the Employee’s initial knowledge of the existence of such condition(s); (y) the condition(s) specified in such notice must remain uncorrected for 30 days following Parent’s receipt of such written notice; and (z) the date of the Employee’s termination of employment must occur within 90 days after the Employee’s initial knowledge of the existence of the condition(s) specified in such notice.

 

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(m) “Paid General Cash Severance” shall mean the aggregate amount of any cash severance paid to the Employee through the date of a Change in Control under any agreement between the Company and the Employee or under any Company policy that is payable due to the Employee’s termination of employment during the 180 day period preceding the date of such Change in Control.

(n) “Person” shall have the same meaning as used for purposes of the Section 13(d) or 14(d) of the Exchange Act.

(o) “Qualifying Termination” shall mean, during the Term of the Agreement, (i) a termination by the Employee of the Employee’s employment with Parent for Good Reason within two years after the occurrence of a Change in Control or (ii) a termination of the Employee’s employment without Cause by Parent within two years after the occurrence of a Change in Control, or (iii) a termination of the Employee’s employment without Cause by Parent prior to the occurrence of a Change in Control when the transaction that results in the Change in Control is initiated prior to such termination, as indicated by a Letter of Intent or as otherwise determined by the Compensation Committee, and is subsequently consummated within 180 days following such termination. Neither a termination of the Employee’s employment due to Disability nor a termination of the Employee’s employment due to death shall constitute a Qualifying Termination. Notwithstanding any provision to the contrary, with respect to any amounts payable under this Agreement upon a Qualifying Termination that are subject to Section 409A, such Qualifying Termination must also qualify as a “separation from service” within the meaning of Section 409A.

(p) “Section 409A” means Section 409A of the Code and the rules, regulations and other interpretive guidance promulgated thereunder.

(q) “Service” shall mean the provision of services by the Employee to Parent or any Affiliate in any Service Provider capacity. Employee’s Service shall be deemed to have terminated either upon an actual cessation of providing services or upon the entity for which the Service Provider provides services ceasing to be an Affiliate. Except as otherwise provided in this Agreement, Service shall not be deemed terminated in the case of (i) any approved leave of absence; (ii) transfers among Parent and any Affiliates in any Service Provider capacity; or (iii) any change in status so long as the individual remains in the service of Parent or any Affiliate in any Service Provider capacity.

(r) “Service Provider” shall mean an employee, a non-employee director, or any consultant or advisor who is a natural person and who provides services (other than in connection with (i) a capital-raising transaction or (ii)promoting or maintaining a market in Parent securities) to Parent or any Affiliate.

(s) “2012 Equity Plan” shall mean the Bill Barrett Corporation 2012 Equity Incentive Plan and any successor plan thereto.

 

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2. Term. This Agreement shall be in effect commencing on the Effective Date and for a term of five (5) years following the Effective Date (the “Term of the Agreement”). Notwithstanding any provision to the contrary, if a Change in Control occurs during the Term of the Agreement, then this Agreement shall remain in full force and effect until the two (2) year anniversary of the Change in Control (or, in the event the Employee experiences a Qualifying Termination during the Term of the Agreement, until the date upon which the Employee has received all amounts due in connection with such Qualifying Termination). Except as set forth in the preceding sentence, the Term of the Agreement may only be extended by the written agreement of Parent and the Employee.

3. Payment of Accrued Compensation upon a Qualifying Termination. If a Qualifying Termination occurs, the Employee shall immediately be paid all earned and accrued salary due and owing to the Employee, all earned bonus awards that may be due and owing to the Employee for prior years that may be due and owing to the Employee, vested deferred compensation (other than pension plan or profit sharing plan benefits, which shall be paid in accordance with the applicable plan), any benefits then due under any plans of Parent in which the Employee is a participant, any accrued and unpaid vacation pay and any appropriate business expenses incurred by the Employee in connection with his or her duties, all to the date of the Qualifying Termination (collectively, “Accrued Compensation”). The Employee shall also be entitled to the severance compensation described in the following Section 4.

4. Severance Compensation. Subject to the terms and conditions of this Agreement, including without limitation Sections 8, 9 and 4(e) hereof, the Employee shall be entitled to the following benefits upon a Qualifying Termination under the conditions set forth below:

(a) Cash Severance. Parent shall make a lump sum cash payment to the Employee equal to three (3) times the Employee’s Annual Compensation Amount (the “Severance Amount”); provided, however that such cash payment shall be reduced by the amount, if any, of the Employee’s Paid General Cash Severance. Subject to the requirements of Section 7 for “specified employees,” the payment under this paragraph (a) shall be paid on the first regular payroll date that is more than 60 days after the date of the Employee’s Qualifying Termination (or the Change in Control, if later) and in no event later than 74 days following such Qualifying Termination or the Change in Control, as applicable.

(b) Certain Welfare Benefits. Parent shall make a lump sum cash payment to Employee equal to thirty-six (36) times the aggregate monthly premium (paid by Parent and Employee) for each of the following plans as in effect at the time of the Employee’s Qualifying Termination: Life insurance, disability, medical, dental and hospitalization. Subject to the requirements of Section 7 for “specified employees,” the payment under this paragraph (b) shall be paid on the first regular payroll date that is more than 60 days after the date of the Employee’s Qualifying Termination (or the Change in Control, if later) and in no event later than 74 days following such Qualifying Termination or the Change in Control, as applicable.

 

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(c) Outplacement Assistance. Parent shall provide the Employee with outplacement assistance for a period of six (6) months from the date of the Employee’s Qualifying Termination at a cost to Parent of no more than $12,000.

(d) Current Year Bonus. Parent shall make a lump sum cash payment to Employee equal to the greater of (i) the Employee’s target annual bonus in effect under any Annual Incentive Plan covering Employee as of the date of the Employee’s Qualifying Termination, adjusted to reflect the period from the beginning of the year through the date of the Employee’s Qualifying Termination or (ii) Current Year Actual Bonus. Subject to the requirements of Section 7 for “specified employees,” the payment under this paragraph (d) shall be paid on the first regular payroll date that is more than 60 days after the date of the Employee’s Qualifying Termination (or the Change in Control, if later) and in no event later than 74 days following such Qualifying Termination or the Change in Control, as applicable.

(e) Release Requirement. Notwithstanding the foregoing, the payment or provision of any benefits described in this Section 4 and any accelerated vesting of outstanding equity and long-term cash incentive awards upon a Qualifying Termination pursuant to Section 5 shall be expressly conditioned upon Employee’s execution and non-revocation of and compliance with the Release and Confidentiality Agreement substantially in the form attached hereto as Exhibit A. In the event that the Release and Confidentiality Agreement has not become effective and irrevocable prior to the date that is 60 days after the date of the Employee’s Qualifying Termination (or the Change in Control, if later), the Employee shall not be entitled to receipt of any payments or benefits pursuant to this Agreement in connection with such Qualifying Termination.

5. Equity and Long-Term Cash Incentive Awards. The treatment of any outstanding equity and long-term cash incentive awards held by the Employee upon a Change in Control shall be determined in accordance with the 2012 Equity Plan and any applicable award agreements covering such awards, except in the following respects:

(a) As to any then outstanding nonvested equity awards and nonvested long-term cash incentive awards that are not continued, assumed or replaced in accordance with Section 12(b)(2) of the 2012 Equity Plan (or any successor provision thereto) and as to which vesting depends upon the completion of a service condition, such equity awards shall become fully vested and be treated in a manner provided for under the 2012 Equity Plan.

(b) As to any then outstanding nonvested equity awards and nonvested long-term cash incentive awards that are not continued, assumed or replaced in accordance with Section 12(b)(2) of the 2012 Equity Plan (or any successor provision thereto) and as to which vesting depends upon the attainment of pre-determined level(s) of financial or operational metrics, the number of shares of Parent common stock subject to such equity awards that become fully vested or the settlement amount of such cash incentive awards shall be calculated based upon the assumption of target performance.

 

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(c) As to any then outstanding nonvested equity awards and nonvested long-term cash incentive awards that are not continued, assumed or replaced in accordance with Section 12(b)(2) of the 2012 Equity Plan (or any successor provision thereto) and as to which vesting depends upon the attainment of pre-determined level(s) of Parent’s total shareholder return or upon performance conditions other than those described in Section 5(b), the number of shares of Parent common stock subject to such equity awards that become fully vested or the settlement amount of such cash incentive awards shall be calculated based on actual performance through the date of the Change in Control as determined by the Compensation Committee in its sole discretion. Any equity awards and long-term cash incentive awards that remain nonvested following such determinations shall be forfeited.

(d) The Employee acknowledges that the determinations made under paragraphs (b) and (c) may result in the vesting of fewer shares and the settlement of a smaller cash amount than would otherwise be determined under the terms of the 2012 Equity Plan and the Employee agrees that the potential payment of such fewer shares or smaller cash amount shall represent a complete discharge of Parent’s and any Affiliate’s obligations under such equity awards and long-term cash incentive awards subject to paragraphs (b) and (c).

(e) To the extent that an equity award or long-term cash incentive award is continued, assumed or replaced (collectively referred to as a “Replacement Award”) under the circumstances described in Section 12(b)(2)(A) of the 2012 Equity Plan (or any successor provision thereto), then the terms of such Replacement Award shall meet the requirements of subparagraph (i) and (ii) below at all times and shall not be modified in a way that materially and adversely impacts the Employees rights thereunder without the prior written consent of the Employee:

(i) The requirements of Section 12(b)(2) of the 2012 Equity Plan (or any successor provision thereto); and

(ii) The Replacement Award provides that upon the Employee’s Qualifying Termination occurring during the two-year period immediately following a Change in Control, the Replacement Award shall become fully vested and free of restrictions of any kind (including but not limited to service-based and performance-based restrictions) and, in the case of a Replacement Award in the form of (i) a stock option or SAR award, such awards shall be fully exercisable for their remaining terms (without giving effect to any provision that may result in the shortening of the term due to the Employee’s Qualifying Termination), (ii) an equity or long-term cash incentive award subject to the satisfaction of one or more performance conditions shall be deemed to be satisfied at target performance and paid upon such Qualifying Termination but in no event later than 74 days thereafter, (ii) an equity or long-term cash incentive award (other than a stock option or SAR award) subject to the satisfaction of a service condition shall be paid upon such Qualifying Termination but in no event later than 74 days thereafter.

 

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(f) Notwithstanding anything to the contrary in this Section 5, with respect to any equity award or long-term cash incentive award which is outstanding as of the Effective Date and which constitutes “deferred compensation” subject to Section 409A of the Code, to the limited extent necessary to avoid the imposition of additional taxes pursuant to Section 409A, such awards shall remain payable upon a Change in Control as provided for pursuant to the Prior Agreement.

6. Tax Payments.

(a) Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by Parent or its affiliates to the Employee or for the Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments (“Parachute Payments”) within the meaning of Section 280G of the Code and would, but for this Section 6 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Covered Payments shall be payable either (i) in full or (ii) reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax, whichever of the foregoing clauses (i) or (ii) results in the Employee’s receipt on an after-tax basis of the greatest amount of benefits after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax) (the “Better After Tax Position”). In the event that such a reduction described in foregoing clause (ii) results in a Better After Tax Position, the Covered Payments shall be reduced in a manner that maximizes the Employee’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. Notwithstanding the foregoing, the Committee shall retain discretion to adjust the procedure for implementing the reduction described in clause (ii) above to the extent such adjustment does not result in the imposition of additional taxes pursuant to Section 409A.

(b) If, notwithstanding the initial application of this Section 6, the Internal Revenue Service determines that any Covered Payment constitutes an excess parachute payment (as defined by Section 280G(b) of the Code), this Section 6 will be reapplied based on the Internal Revenue Service’s determination, and the Employee will be required to promptly repay the portion of the Covered Payments required to minimize imposition of the Excise Tax.

(c) Any determination required under this Section 6 shall be made in writing in good faith by an independent accounting firm selected and paid for by Parent (the “Accounting Firm”), which shall provide detailed supporting calculations to Parent and the Employee as requested by Parent or the Employee. Parent and the Employee shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section 6.

 

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7. Compliance with Section 409A.

(a) The payments and benefits provided pursuant to this Agreement are intended to be exempt from the limitations and requirements set forth in Section 409A and shall be construed and interpreted in accordance with such intent. Notwithstanding the foregoing, Parent makes no representations that the payments and benefits contemplated under this Agreement are exempt from Section 409A and in no event shall Parent be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Employee on account of non-compliance with the requirements of Section 409A. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. To the extent required by Section 409A, payments or reimbursements of any expenses provided for under this Agreement shall be made in accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv).

(b) Notwithstanding any provision of the Agreement to the contrary and except as provided by this Section 7(b), if the Employee is a “specified employee” as defined under Section 409A or any regulations or Treasury guidance promulgated thereunder, the Employee shall not be entitled to any payments or benefits in the nature of non-qualified deferred compensation within the meaning of Section 409A (“Deferred Compensation”) and Parent shall not pay or provide such Deferred Compensation, upon a separation of Employee’s service until the earlier of: (i) the date which is six (6) months after the Employee’s separation from service for any reason other than death or (ii) the date of Employee’s death. The provisions of this Section 7(b) shall apply only if necessary to avoid the imposition of taxes and penalties under Section 409A relating to the payment of non-qualified deferred compensation to specified employees upon their separation from service. The determination of whether Section 409A is deemed to apply to the payment of any amounts hereunder shall be made in good faith by Parent after consultation with and advice from its legal or accounting advisors and after consulting with the Employee.

(c) If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Employee to incur any additional tax or interest under Section 409A, Parent shall, to the extent practicable, after consulting with and receiving the approval of the Employee (which shall not be unreasonably withheld or delayed), reform such provision.

(d) Any revisions made pursuant to Section 7(b) or 7(c) shall be made to maintain, to the maximum extent practicable, the original intent and economic benefit to the Employee of the applicable provision without violating the provisions of Section 409A.

8. Non-Solicitation. As partial consideration for entering into this Agreement, during the Term of the Agreement through two (2) years after the date of termination of

 

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the Employee’s Service for any reason, the Employee will not induce any employee of Parent or its Affiliates to leave the employ of Parent or its Affiliates. If any restriction set forth in this Section 8 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.

9. Clawback Rights. Parent’s clawback policy, as it may exist and be modified from time to time, is incorporated by reference and is made a part hereof. The Employee acknowledges and agrees that any payments to the Employee hereunder are subject to such policy and to applicable law. Without limiting the generality of the foregoing sentence, the Employee also expressly acknowledges that any payments or benefits shall be subject to any clawback or similar requirements of applicable law including, without limitation, pursuant to the Dodd Frank Wall Street Reform and Consumer Protection Act and any current or future rules or regulations promulgated thereunder.

10. Employment Status. This Agreement does not constitute a contract of employment or impose on the Employee or Parent any obligation to retain the Employee, or to change the status of the Employee’s employment. The Employee acknowledges that the Employee is an “at-will” employee of Parent, and that Parent may terminate the Employee’s employment at any time, with or without cause and with or without notice.

11. Nature of Rights. The Employee shall have the status of a mere unsecured creditor of Parent with respect to his or her right to receive any payment under this Agreement. This Agreement shall constitute a mere promise by Parent to make payments in the future of the benefits provided for herein. It is the intention of the parties hereto that the arrangements reflected in this Agreement shall be treated as unfunded for tax purposes and, if it should be determined that Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) is applicable to this Agreement, for purposes of Title I of ERISA. Nothing in this Agreement shall prevent or limit the Employee’s continuing or future participation in any benefit, bonus, incentive or other plan or program provided by Parent and for which the Employee may qualify, nor shall anything herein limit or reduce such rights as the Employee may have under any other agreements with Parent. Amounts which are vested benefits or which the Employee is otherwise entitled to receive under any plan or program of Parent shall be payable in accordance with such plan or program, except as explicitly modified by this Agreement.

12. Full Settlement. Parent’s obligation to provide the payments and benefits provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which Parent may have against the Employee or others. In no event shall the Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Employee under any of the provisions of this

 

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Agreement and such amounts shall not be reduced whether or not the Employee obtains other employment. In the event that the Employee obtains a favorable final, nonappealable adjudication with respect to any contest (including as a result of any contest by the Employee about the amount of any payment pursuant to this Agreement) by Parent, the Employee or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof Parent agrees to reimburse the Employee, to the full extent permitted by law, all reasonable legal fees and expenses incurred as a result of such contest.

13. Miscellaneous.

(a) Administration by Compensation Committee. The Compensation Committee shall have the exclusive power and authority to administer this Agreement, including, without limitation, the right and power to interpret the provisions of this Agreement and to make all determinations deemed necessary or advisable for the administration of this Agreement.

(b) Severability. Should a court or other body of competent jurisdiction determine that any provision of this Agreement is excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible.

(c) Withholding. All compensation and benefits to the Employee hereunder shall be reduced by all federal, state, local and other withholdings and similar taxes and payments required by applicable law.

(d) Impact of Agreement on Other Benefits. Except as otherwise provided herein, no provision of this Agreement shall be interpreted so as to reduce any amounts otherwise payable, or in any way diminish Employee’s rights as an employee of Parent, whether existing now or hereafter, under any benefit, incentive, retirement, stock option, stock bonus, stock purchase plan, or any employment agreement or other plan or arrangement. Notwithstanding the foregoing, the Employee acknowledges and agrees that, except as set forth above in respect of Paid General Severance Amounts, in the event the Employee becomes eligible to receive the payments and benefits described in Sections 4 and 5, the Employee shall not be eligible to receive any additional severance or similar benefits in connection with such Qualifying Termination.

(e) Entire Agreement; Modification. This Agreement represents the entire agreement between the parties and supersedes and replaces any prior agreements between the parties, written or oral, with respect to the subject matter covered hereby, including but not limited to the Prior Agreement. This Agreement may be amended, modified, superseded or canceled, and any of the terms hereof may be waived, only by a written instrument executed by each party hereto or, in the case of a waiver, by the party waiving compliance; provided, however, that Parent may unilaterally amend the terms of this Agreement without the Employee’s consent (i) if such amendment does not materially impair the rights of the Employee under this Agreement, or (ii) if such amendment is necessary to comply with applicable federal or

 

Page 13


state laws, rules or regulations (including stock exchange rules) or any clawback or other compensation recovery policy as provided in Section 9. The failure of any party at any time or times to require performance of any provision hereof shall not affect such party’s right at a later time to enforce the same. No waiver by any party of the breach of any provision contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such breach or of any other provision of this Agreement.

(f) Applicable Law. This Agreement shall be construed under and governed by the laws of the State of Delaware.

(g) Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, Parent’s successors and assigns and the Employee’s heirs and assigns.

(h) Nontransferability by the Employee. Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by the Employee, the Employee’s beneficiaries or legal representatives, except by will or by the laws of descent and distribution.

(i) Survival. The provisions of Sections 6 through 13 of this Agreement, and those sections necessary to interpret and apply them, shall survive the termination of this Agreement, regardless of the reason for such termination.

- SIGNATURE PAGE FOLLOWS -

 

Page 14


IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

 

BILL BARRETT CORPORATION

By:

 

 

 

 

EMPLOYEE

 

 

Page 15

 

 

 

 

 

 

 

 

 

<DOCUMENT>

<TYPE>EX-10.23

<SEQUENCE>12

<FILENAME>d14347a4exv10w23.txt

<DESCRIPTION>SEVERANCE PLAN

<TEXT>

<PAGE>

 

                                                                   EXHIBIT 10.23

 

                            BILL BARRETT CORPORATION

                                 SEVERANCE PLAN

 

Article I. PURPOSE AND DEFINITIONS

 

      Section 1.01 Purpose. The purpose of the Bill Barrett Corporation

Severance Plan (the "Plan") is to provide incentives to employees of Bill

Barrett Corporation ("Parent") and its affiliates (collectively, the "Company")

to remain in the employ of the Company or its Subsidiaries during periods when

the future of the Company is uncertain due to a potential or actual Change in

Control (as defined below). All full-time employees who meet the eligibility

criteria will participate in the Plan.

 

      Section 1.02 Definitions.

 

(a)   "Annual Base Salary" shall mean twelve (12) times the highest monthly base

      salary paid or payable, including any base salary which has been earned

      but deferred, to the Participant by the Company in respect of the twelve

      (12) month period immediately preceding the month in which the Effective

      Date occurs.

 

(b)   "Board" shall mean the Board of Directors of Parent.

 

(c)   "Cause" shall mean the Participant's

 

      (1)   neglect, refusal or failure (other than by reason of illness,

            accident or other physical or mental incapacity or disability) to

            properly or substantially attend to duties as assigned by the

            Company, including without limitation insubordination or excessive

            absence or tardiness;

 

      (2)   failure to substantially comply with any of terms of employment;

 

      (3)   failure to follow the established policies, standards, and

            regulations of the Company;

 

      (4)   willful engagement in gross misconduct injurious to the Company or

            to any of its subsidiaries or affiliates or any of its or their

            employees; or conviction in a court of law of, or pleading of guilty

            or nolo contendere to, any crime that constitutes a felony in the

            jurisdiction involved, or any crime including moral turpitude.

 

(d)   "Change in Control" of the Company means the occurrence of one of the

      following events:

 

      (1)   An acquisition (other than directly from the Company) of any voting

            securities of the Company (the "Voting Securities") by any "Person"

            (as

 

                                       1

<PAGE>

 

            the term person is used for purposes of Section 13(d) or 14(d) of

            the Securities Exchange Act of 1934, as amended (the "Exchange

            Act")) immediately after which such Person has "Beneficial

            Ownership" (within the meaning of Rule 13d-3 promulgated under the

            Exchange Act) of 30% or more of the combined voting power of the

            Company's then outstanding Voting Securities; provided, however,

            that in determining whether a Change in Control has occurred, Voting

            Securities which are acquired in a "Non-Control Acquisition" (as

            hereinafter defined) shall not constitute an acquisition which would

            cause a Change in Control. A "Non-Control Acquisition" shall mean an

            acquisition by (A) an employee benefit plan (or a trust forming a

            part thereof) maintained by (x) the Company or (y) any corporation

            or other Person of which a majority of its voting power or its

            equity securities or equity interest is owned directly or indirectly

            by the Company (a "Subsidiary"), (B) the Company or any Subsidiary,

            or (C) any Person in connection with a "Non-Control Transaction" as

            defined in paragraph (3) below;

 

      (2)   The individuals who are members of the Board (the "Incumbent Board")

            cease for any reason to constitute at least two-thirds of the Board;

            provided, however, that if the election, or nomination for election

            by the Company's stockholders, of any new director was approved by a

            vote of at least two-thirds of the then Incumbent Board, such new

            director shall, for purposes of this Plan, be considered as a member

            of the Incumbent Board; provided, further, however, that no

            individual shall be considered a member of the Incumbent Board if

            such individual initially assumed office as a result of either an

            actual or threatened "Election Contest" (defined as any solicitation

            subject to Rules 14a-1 to 14a-10 promulgated under the Exchange Act

            by any person or group of persons for the purpose of opposing a

            solicitation subject to Rules 14a-1 to 14a-10 by any other person or

            group of persons with respect to the election or removal of

            directors at any annual or special meeting of stockholders of the

            Company) or other actual or threatened solicitation of proxies or

            consents by or on behalf of a Person other than the Board (a "Proxy

            Contest") including by reason of any agreement intended to avoid or

            settle any Election Contest or Proxy Contest; or

 

      (3)   Consummation of:

 

            (i)   A merger, consolidation or reorganization involving the

                  Company, unless

 

                  (a)   the stockholders of the Company, immediately before such

                        merger, consolidation or reorganization, own, directly

                        or indirectly, immediately following such merger,

                        consolidation or reorganization, a majority of the

                        combined voting power of the outstanding Voting

                        Securities of the corporation resulting from such merger

                        or consolidation or reorganization (the

 

                                        2

<PAGE>

 

                        "Surviving Corporation") or a corporation beneficially

                        owning, directly or indirectly, a majority of the Voting

                        Securities of the Surviving Corporation (a "Parent

                        Corporation") in substantially the same proportion as

                        their ownership of the Voting Securities immediately

                        before such merger, consolidation or reorganization, and

 

                  (b)   the individuals who were members of the Incumbent Board

                        immediately prior to the execution of the agreement

                        providing for such merger, consolidation or

                        reorganization constitute a majority of the members of

                        the board of directors of either the Surviving

                        Corporation or a Parent Corporation, and

 

                  (c)   no Person (other than the Company, any Subsidiary, any

                        employee benefit plan (or any trust forming a part

                        thereof) maintained by the Company, the Surviving

                        Corporation or any Subsidiary, or any Person who,

                        immediately prior to such merger, consolidation or

                        reorganization had Beneficial Ownership of 30% or more

                        of the then outstanding Voting Securities) owns,

                        directly or indirectly, 30% or more of the combined

                        voting power of the Surviving Corporation's then

                        outstanding voting securities (unless there is a Parent

                        Corporation, in which event of the Parent Corporation's

                        then outstanding voting securities), and

 

                  (d)   a transaction described in the immediately preceding

                        clauses (a) through (c) shall herein be referred to as a

                        "Non-Control Transaction";

 

            (ii)  A complete liquidation or dissolution of the Company; or

 

            (iii) The sale or other disposition of all or substantially all of

                  the assets of the Company to any Person (other than a transfer

                  to a Subsidiary).

 

      (4)   Notwithstanding subclauses (1), (2) or (3) above, a Change in

            Control shall not be deemed to occur solely because any Person (the

            "Subject Person") acquired Beneficial Ownership of more than the

            permitted amount of the outstanding Voting Securities as a result of

            the acquisition of Voting Securities by the Company which, by

            reducing the number of Voting Securities outstanding, increases the

            proportionate number of shares Beneficially Owned by the Subject

            Person, provided that if a Change in Control would occur (but for

            the operation of this sentence) as a result of the acquisition of

            Voting Securities by the Company, and after such share acquisition

            by the Company, the Subject Person becomes the

 

                                       3

<PAGE>

 

            Beneficial Owner of any additional Voting Securities which increases

            the percentage of the then outstanding Voting Securities

            Beneficially Owned by the Subject Person, then a Change in Control

            shall occur.

 

      In all cases, if the Participant is an employee of the Company and the

      Participant's employment is terminated within 30 days prior to a Change in

      Control and the Participant reasonably demonstrates that such termination

      (A) was at the request of a third party who has indicated an intention or

      taken steps reasonably calculated to effect a Change in Control and who

      effectuates a Change in Control (a "Third Party"), or (B) otherwise

      occurred in connection with, or in anticipation of, a Change in Control

      which actually occurs, then the date of a Change in Control with respect

      to such Participant shall mean the date immediately prior to the date of

      such termination of such Participant's employment.

 

(e)   "Change in Control Agreement" shall mean a letter of intent or a binding

      agreement between Parent and another party providing for a Change in

      Control to occur.

 

(f)   The "Change in Control Date" shall mean the date on which a Change in

      Control occurs.

 

(g)   The "Change in Control Period" shall begin on the Effective Date and shall

      extend until six months after the Change in Control Date.

 

(h)   The "Effective Date" shall mean date of execution of a Change in Control

      Agreement or the date of the initiation of a tender offer or other

      solicitation directed at the stockholders of Parent intended to cause a

      Change in Control.

 

(i)   "Good Reason" shall mean the occurrence of any of the following events:

 

      (1)   assignment to the Participant of duties inconsistent with, or a

            substantial alteration in the nature of, the Participant's

            responsibilities in effect immediately prior to the Change in

            Control;

 

      (2)   a reduction by the Company or its successor in the Participant's

            Annual Base Salary or a reduction in any increased base salary which

            may be in effect after the Change in Control Date or a reduction in

            or modification of a Participant's entitlement to receive benefits

            pursuant to an approved plan of the Company existing at the

            Effective Date; or

 

      (3)   the Company's (or a successor's) requiring the Participant to be

            based anywhere other than within twenty five (25) miles of the

            Company's principal office location in the city of Participant's

            employment immediately prior to the Change in Control, except for

            reasonably required travel on the Company's or its successor's

            business to an extent substantially consistent with the

            Participant's business travel obligations immediately preceding the

            Change in Control Date.

 

                                       4

<PAGE>

 

(j)   "Participant" is an employee of the Company who is eligible to participate

      in the Plan under Section 3.1.

 

(k)   The "Plan Administrator" is Parent or an individual or a committee it may

      designate by action of its Board.

 

(l)   "Qualified Termination" shall mean a termination of the Participant's

      employment with the Company or its successor:

 

      (1)   by the Company or its successor for any reason other than for Cause;

            or

 

      (2)   by the Participant for Good Reason.

 

(m)   "Severance Benefit" is the payment to a Participant whose employment is

      terminated as a Qualified Termination during the Change in Control Period

      or the Severance Period, as described in paragraph 4(b).

 

(n)   "Severance Period" shall mean the period beginning on the date of the

      Change in Control and shall continue for a period of 12 months thereafter.

 

(o)   "Weekly Salary" shall mean the amount equal to the Annual Base Salary

      divided by 52.

 

(p)   "Years of Service" shall mean the quotient of the sum of the number of

      months that a Participant is and has been an employee of the Company or

      its predecessors prior to the Change in Control according to the payroll

      records of the Company divided by twelve (12).

 

Article II. ADMINISTRATION.

 

      The Plan shall be administered by the Plan Administrator. The Plan

Administrator shall be responsible for the management and control of the

operation and the administration of the Plan, including without limitation,

interpretation of the Plan, decisions pertaining to eligibility to participate

in the Plan, selection of participants in the Retention Program, computation of

Plan benefits. The Plan Administrator has absolute discretion in the exercise of

its powers and responsibilities. To the extent the Board has delegated its

responsibilities and powers as Plan Administrator, Parent shall, without

limiting any rights that the delegate may have under Parent's charter or bylaws,

applicable law or otherwise, indemnify and hold harmless each such delegate (and

any other individual acting on such delegate's behalf) against any and all

expenses and liabilities arising out of such person's administrative functions

or fiduciary responsibilities, excepting only expenses and liabilities arising

out of the person's own gross negligence or willful misconduct (but specifically

including such person's ordinary negligence); expenses against which such person

shall be indemnified hereunder include without limitation the amounts of any

settlement, judgment, attorneys' fees, costs of court, and any other related

charges reasonably incurred in connection with a claim, proceeding, settlement,

or other action under the Plan.

 

                                        5

<PAGE>

 

Article III. PARTICIPATION.

 

      Section 3.01 Eligibility Criteria; Severance Program. All full-time

Company employees who have been employed with the Company for at least six

months prior to the Change in Control Date shall participate in the Severance

Program pursuant to the Plan.

 

      Section 3.02 No Change in Participation Status. After the commencement of

the Change in Control Period, no change which would reduce the benefits to which

an employee is entitled and no termination of an employee's status as a

Participant, other than a termination for Cause, can be made at any time;

provided, however, that termination of the Change in Control Agreement prior to

the Change in Control, or termination of the tender offer or other solicitation

of Parent's stockholders for a Change in Control which initiated the Change in

Control Period, or the failure to consummate the Change in Control transactions

approved by the stockholders, shall terminate the right of Participants to

receive any benefits to which they would otherwise have been entitled if a

Change in Control had occurred and shall be deemed a termination of the Change

in Control Period and the Severance Protection Period.

 

      Section 3.03 Exclusion from Participation.

 

(a)   Employees classified by Parent as part-time or temporary employees and

      individuals who are classified by Parent as independent contractors are

      not eligible to be Participants under this Plan.

 

(b)   Notwithstanding any other provision of the Plan, no employee who is a

      party to an individual agreement covering Change in Control and severance

      benefits shall be eligible to be a Participant under this Plan.

 

Article IV. BENEFITS.

 

      Section 4.01 Severance Program. Subject to satisfaction of the conditions

set forth in Article VII, Participants whose employment is terminated in a

Qualified Termination during the Severance Period shall receive the following

Severance Benefit.

 

(a)   Form and Timing of Payment. A lump sum cash payment in the amount set

      forth below (the "Severance Benefit") will be made as soon as practicable

      after the date of a Qualified Termination.

 

(b)   Severance Benefit Formula: The Severance Benefit for a Participant shall

      be equal to the greater of three (3) times the Weekly Salary multiplied by

      a Participant's Years of Service, or three (3) times the Weekly Salary for

      each $10,000 of a Participant's Annual Base Salary; provided, however,

      that the minimum Severance Benefit will be 12 times a Participant's Weekly

      Salary, and the maximum Severance Benefit will be 26 times a Participant's

      Weekly Salary.

 

(c)   COBRA. Participants whose employment is terminated in a Qualified

      Termination during the Severance Period (and who elect to receive

      continuation coverage

 

                                        6

<PAGE>

 

      under the Consolidated Omnibus Budget Reconciliation Act ("COBRA

      coverage") will be reimbursed by the Company for the current COBRA premium

      for the period that begins on the first day after any such Participant is

      no longer covered by the Company's health benefit plan and will end upon

      the earlier of: six months after date of a Qualified Termination, or the

      day such Participant is no longer eligible for COBRA for any reason,

      including, but not limited to such Participant ceasing to make his or her

      COBRA premium payment. If the Participant remains eligible for COBRA after

      the end of such period, he or she may continue receiving COBRA benefits

      provided that he or she makes all premium payments in a timely fashion

      until such eligibility terminates. The COBRA premium is subject to change

      according to the terms of the Company's health benefit plan.

 

(d)   Ineligibility for Payment. No Severance Benefit will be paid to a

      Participant whose employment is by the Company for Cause during the

      Severance Period or who voluntarily terminates employment without Good

      Reason during the Severance Period. The Severance Benefit payment shall

      not be eligible to be deferred for purposes of the Company's 401(k) plan.

 

Article V. TERMINATION OF EMPLOYMENT.

 

      Section 5.01 Terminations that are not Qualified Terminations. Any

termination of employment other than a Qualified Termination will not entitle a

Participant to Severance Benefits hereunder including, without limitation,

termination due to death, disability, retirement, or termination by the

Participant for other than Good Reason.

 

      Section 5.02 Determination of Cause and Good Reason. The Plan

Administrator, in its sole discretion, shall determine whether a Participant has

been terminated for Cause. The effect of this definition of Cause shall be

limited to determining the consequences of a termination under this Plan and

shall not restrict or otherwise interfere with the Company's or its successor's

discretion with respect to the termination of any Participant's employment.

 

Article VI. LIMITATIONS OF PAYMENTS TO PARTICIPANTS

 

      Section 6.01 No Parachute Payments. Notwithstanding any other provision of

this Plan, in the event that any payment (or portion thereof) to be made

hereunder to a Participant would constitute a "parachute payment" for purposes

of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, such

payment (or portion thereof) shall be reduced so that the remaining portion of

such payment (if any) does not constitute a parachute payment. In the event that

more than one payment (or portion thereof) would constitute a parachute payment,

the preceding sentence shall apply first to the payment (or portion thereof)

which is payable last in time, and then to the payment payable next to last in

time, and so forth until none of the remaining payments (or portions thereof)

constitute parachute payments.

 

      Section 6.02 Taxes. All payment of Severance Benefits under this Plan

shall be made net of all applicable withholding taxes.

 

                                        7

<PAGE>

 

Article VII. PARTICIPANT RELEASES.

 

      In the sole discretion of the Plan Administrator, no Participant shall be

entitled to receive a Severance Benefit unless such Participant shall have

executed a release, in a form acceptable to the Company and/or its successor, as

applicable, of all claims against the Company and/or its successor, as

applicable, provided that in no event shall the Participant be required to

release the Company or its successor from its obligations under the Plan. The

releases shall be executed and delivered in compliance with all applicable

requirements under employment-related laws, including without limitation, the

Age Discrimination in Employment Act, and any payment of any Severance Benefit

shall be deferred until the release is no longer revocable by the Participant.

 

Article VIII. AMENDMENT; TERMINATION.

 

      The Plan may not be amended or terminated to affect the rights of any

Participant after the Effective Date except as set forth in Section 3.2. Subject

to the foregoing, the Plan may be amended or terminated at any time by the

Board.

 

Article IX. BENEFIT OF PLAN.

 

      The Plan shall be binding upon and shall inure to the benefit of the

Participant, the Participant's heirs and legal representatives, and the Company

and its successors. The term "successor" shall mean any person, firm,

corporation or other business entity that, at any time whether by merger,

acquisition or otherwise, acquires all or substantially all of the stock, assets

or business of the Company.

 

Article X. EMPLOYMENT RELATIONSHIP.

 

      Nothing contained in this Plan or in any Participation Letter received by

a Participant shall restrict or otherwise interfere with the Company's

discretion with respect to the termination of any Participant's employment or in

the nature of a Participant's employment as an at-will employee.

 

Article XI. NON-ASSIGNABILITY.

 

      Each Participant's rights under this Plan shall be non-transferable except

by will or by the laws of descent and distribution and except insofar as

applicable law may otherwise require. Subject to the foregoing, no right,

benefit or interest hereunder shall be subject to anticipation, alienation,

sale, assignment, encumbrance, charge, pledge, hypothecation, or set-off in

respect of any claim, debt or obligation, or to execution, attachment, levy or

similar process, or assignment by operation of law, and any attempt, voluntary

or involuntary, to effect any such action shall, to the full extent permitted by

law, be null, void and of no effect

 

Article XII. OTHER BENEFITS.

 

      Except as otherwise specifically provided herein, nothing in the Plan

shall affect the level of benefits provided to or received by any Participant

(or the Participant's

 

                                        8

<PAGE>

 

estate or beneficiaries) as part of any employee benefit plan of the Company,

and the Plan shall not be construed to affect in any way a Participant's rights

and obligations under any other such plan, including, but not limited to,

accrued vacation and benefits payable under any bonus or other compensation

plans, stock option plans, disability plans, retirement plans, or similar

successor plans.

 

Article XIII. SEVERABILITY.

 

      In the event that any provision or portion of this Plan shall be

determined to be invalid or unenforceable for any reason, the remaining

provisions and portions of the Plan shall be unaffected thereby and shall remain

in full force and effect to the fullest extent permitted by law.

 

Article XIV. GOVERNING LAW.

 

      All questions pertaining to the construction, regulation, validity and

effect of the provisions of the Plan shall be determined in accordance with the

laws of the State of Colorado without regard to the conflict of law principles

thereof.

 

Article XV. EFFECT ON PRIOR PLANS.

 

      With respect to the Participants, the Plan supersedes all previous

retention and/or severance plans that may have been sponsored by the Company,

its predecessors or their affiliates.

 

IN WITNESS WHEREOF, this Retention and Severance Plan was adopted by Parent this

________ day of _______________________.

 

                                          Bill Barrett Corporation

 

                                          By:___________________________________

 

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</TEXT>

</DOCUMENT>