Exhibit 10.1
AMENDED & RESTATED
PATINA OIL & GAS CORPORATION
DEFERRED COMPENSATION PLAN
FOR SELECT EMPLOYEES
As originally adopted May 1, 1996, amended as of September 30, 1997
and further amended as of August 1, 2001
ARTICLE 1 - INTRODUCTION
1.1 Purpose of the Plan
The Employer has adopted the Plan set forth herein to provide a means by which
certain employees may elect to defer receipt of designated percentages or
amounts of their Compensation and to provide a means for certain other deferrals
of compensation.
1.2 Status of Plan
The Plan is intended to be a "plan which is unfunded and is maintained by an
employer primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees" within the meaning
of Sections 201(2) and 301(a)(3) of the Employee Retirement Income Security Act
of 1974 ("ERISA"), and shall be interpreted and administered to the extent
possible in a manner consistent with that intent.
ARTICLE 2 - DEFINITIONS
Whenever used herein, the following terms have the meanings set forth below,
unless a different meaning is clearly required by the context:
2.1 Account means, for each Participant, the account established for his or her
benefit under Section 5.1.
2.2 Change of Control has the meaning set forth in the Patina Oil & Gas
Corporation Change in Control Plan, effective as of June 17, 1997.
2.3 Claimant means a participant or beneficiary who has had a claim for
benefits denied and who may appeal the denial in accordance with Section 8.4 and
8.5.
2.4 Code means the Internal Revenue Code of 1986, as amended, from time to
time. Reference to any section or subsection of the Code includes reference to
any comparable or succeeding provisions of any legislation with amends,
supplements or replaces such section or subsection.
2.5 Compensation means the regular or base salary and bonuses payable by the
Employer or an Affiliate to an individual. For purposes of the Plan,
Compensation will be determined before giving effect to Elective Deferrals and
other salary reduction amounts which are not included in the Participant's gross
income under Section 125, 401(k), 402(h) or 403(b) of the Code.
For purposes of the Plan, bonuses shall be deemed to have been earned during the
Plan Year in which the Employer accrues such bonuses for federal income tax
reporting purposes. Under the Employer's present method of Federal income tax
reporting, regular bonuses paid in March of a given year are accrued ratably
during the prior year. Regular salary and special bonuses, as designated by the
Board of Directors or the Compensation Committee of the Board of Directors of
Employer, are included in Compensation at the time paid to the employee. Thus,
for example, Compensation for the Plan Year ending December 31, 1995 includes
regular salary paid during 1995 and any regular bonus paid during March 1996.
As a result an Elective Deferral to defer, say, 10% of a Participant's 1995
Compensation will result in the deferral hereunder of 10% of the Participant's
1995 salary and 10% of any regular bonus paid to the Participant in March 1996
(any regular bonus payable in March 1995 would not be affected by an election to
defer a portion of 1995 Compensation, since such bonus would be included in 1994
Compensation).
2.6 Deemed Asset means an asset, other than the Funds, that a portion of a
Participant's account is deemed to be invested in.
2.7 Disability means a Participant's total and permanent mental or physical
disability resulting in termination of employment as evidenced by presentation
of medical evidence satisfactory to the Administrator.
2.8 Effective Date means, as to this amendment and restatement, August 1, 2001.
The original Effective Date of the Plan is July 1, 1996.
2.9 Election Form means the participation election form as approved and
prescribed by the Plan Administrator.
2.10 Elective Deferral means the portion of Compensation during a Plan Year
which is deferred by a
Participant under Section 4.1.
2.11 Eligible Employee means, on the Effective Date or on any Entry Date
thereafter, those employees of the Employer selected by the Compensation
Committee of the Board of Directors of Employer or by such persons as the
Compensation Committee may authorize to select employees entitled to participate
in the Plan.
2.12 Entry Date means, for each Participant, the date deferrals commence in
accordance with Section 4.1.
2.13 Employer means Patina Oil & Gas Corporation, any successor to all or a
major portion of its assets or business which assumes the obligation of
Employer, and each other entity that is affiliated with the Employer that adopts
the Plan with the Consent of the Employer, provided that Patina Oil & Gas
Corporation shall have the sole power to amend this Plan and shall be the Plan
Administrator if no other person or entity is so serving at any time.
2.14 ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to any section or subsection of ERISA
includes reference to any comparable or succeeding provisions of any legislation
which amends, supplements or replaces such section or subsection.
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2.15 Funds means, for purposes of Sections 5.2 and 7.7, investment funds
designated from time to time by the Plan Administrator for the deemed investment
of Accounts pursuant to Section 5.2.
2.16 Incentive Contribution means a discretionary additional contribution made
by Employer as described in Section 4.3.
2.17 Insolvent means either (1) the Employer is unable to pay its debts as they
become due or (2) Employer is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
2.18 Matching Deferral means a deferral for the benefit of a Participant as
described in Section 4.2. A Matching Deferral may be made in cash, securities
of the Employer or a combination thereof in ratios to be established from time
to time by the Board of Directors of the Employer or the Compensation Committee
of the Employer.
2.19 Matching Deferral Limitation means, with respect to Elective Deferrals of
Compensation for any Plan Year made by any Participant, 10% of such
Participant's base salary during such Plan Year. The Compensation Committee may
change the Matching Deferral Limitation for any Participant or all Participants
at any time, provided that the Matching Deferral Limitation applicable to
Elective Deferrals of Compensation for any Plan Year made by any Participant may
not be reduced unless the Plan Administrator has given written notice of such
reduction to the Participant not less than 10 days prior to the commencement of
such Plan Year. The foregoing shall not limit the Employer's rights to decrease
the salary or Compensation of, or terminate the employment of, any participant
at any time, with or without cause and with or without prior notice, without
regard to the effect such discharge would have on the Participant's interest in
the Plan.
2.20 Matching Deferral Rate means, with respect to Elective Deferrals of
Compensation for any Plan Year made by any Participant, the rate established by
the Compensation Committee. Such rate shall stay in place for subsequent Plan
Years until changed by the Compensation Committee. The Compensation Committee
may change the Matching Deferral Rate for any Participant or all Participants at
any time, provided that the Matching Deferral Rate applicable to Elective
Deferrals of Compensation for any Plan Year made by any Participant may not be
reduced unless the Plan Administrator has given written notice of such reduction
to the participant not less than 10 days prior to the commencement of such Plan
Year.
2.21 Participant means any individual who participates in the Plan in
accordance with Article 3.
2.22 Plan means the Amended and Restated Patina Oil & Gas Corporation Deferred
Compensation Plan for Select Employees as amended from time to time.
2.23 Plan Administrator means the person, persons, or entity designated by the
Employer to administer the Plan and to serve as agent for the Employer with
respect to the Trust. If no such person or entity is serving as Plan
Administrator at any time, the Employer shall be Plan Administrator.
2.24 Plan Year means, in the case of the first Plan Year, the period from the
Effective Date through December 31, 1996 and, for each Plan Year thereafter, the
12-month period ending December 31.
2.25 Patina Stock means Patina Oil & Gas Corporation common stock, par value
$.01 per share.
2.26 Patina Stock Deferral means the portion of a Participant's Compensation
which is Patina Stock during a Plan Year which is Deferred by a Participant
under Section 4.4.
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2.27 Patina Stock Election Form means the participation election form for
Patina Stock as approved and prescribed by the Plan Administrator.
2.28 Patina Stock Subaccount has the meaning described in Section 5.1.
2.29 Retirement Age means the age of 65. No determination to increase the
Retirement Age shall be effective with respect to amounts credited to the
Account of a Participant with respect to Plan Years commencing prior to the time
of such determination.
2.30 Tax Gross-Up Payment means an additional payment to a Participant or his
beneficiary paid in the circumstances described in Section 7.10 to compensate
for taxes imposed by payment; the payment is determined by multiplying the
amount of the payment by the fraction 1/1-MR, where MR is the sum of (1) the
Participant's (or the beneficiary's) maximum income tax rate under section 1(a)
of the Code as of the date of payment and (2) the rates of any other taxes,
including without limitation any excise taxes under Section 4999 of the Code,
imposed on the Participant (or the beneficiary) with respect to the payment.
2.31 Trust means the rabbi trust or trusts established by the Employer that
identifies the Plan as a plan with respect to which assets are to be held by the
Trustee.
2.32 Trustee means the trustee or trustees under the Trust.
2.33 Unforeseen Emergency means an immediate and heavy financial need resulting
from either of the following:
a. expenses which are not covered by insurance and which the
Participant or his or her spouse or dependent has incurred as a result of,
or is required to incur in order to receive, medical care; or
b. any circumstance that is determined by the Plan Administrator in
its sole discretion to constitute an unforeseen emergency which is not
covered by insurance and which cannot reasonably be relieved by the
liquidation of the Participant's assets.
ARTICLE 3 - PARTICIPATION
3.1 Commencement of Participation
Any Eligible Employee who elects to defer part of his or her Compensation in
accordance with Section 4.1 or 4.4 shall become a participant in the Plan as of
the date such deferrals commence in accordance with Section 4.1 or 4.4. Any
individual who is not already a Participant and whose account is credited with
an Incentive Contribution shall become a Participant as of the date such amount
is credited.
3.2 Continued Participation
A Participant in the Plan shall continue to be a Participant so long as any
amount remains credited to his or her account.
ARTICLE 4 - DEFERRALS AND INCENTIVE CONTRIBUTIONS
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4.1 Elective Deferrals
Any Eligible Employee may elect to defer a percentage or dollar amount of one or
more payments of Compensation for the next succeeding Plan Year, on such terms
as the Plan Administrator may permit, by completing an Election Form and filing
it with the Plan Administrator prior to the first day of such succeeding Plan
Year (or any such earlier date as the Plan Administrator may prescribe),
provided that an Eligible Employee who is a new employee of Employer may, by
completing an Election Form and filing it with the Plan Administrator within 30
days of becoming an Eligible Employee, elect to defer a percentage or dollar
amount of one or more payments of Compensation for the Plan Year in which such
employment commences, on such terms as the Plan Administrator may permit, which
are payable to the Participant after the date on which the Eligible Employee
files the Election Form.
An election to defer a percentage or dollar amount of Compensation for any Plan
Year shall apply only to that Plan Year, unless the Participant elects otherwise
on the Election Form.
A Participant's Compensation shall be reduced in accordance with the
Participant's election hereunder and amounts deferred hereunder shall be paid by
the Employer to the Trust as soon as administratively feasible and credited to
the Participant's Accounts as of the date the amounts are received by the
Trustee.
4.2 Matching Deferrals
After each payroll period, the Employer shall contribute to the Trust Matching
Deferrals equal to the Matching Deferral Rate multiplied by the amount of the
Elective Deferrals credited to the Participants' Accounts for such period under
Section 4.1. Each Matching Deferral will be credited as of the date it is
received by the Trustee pro rata in accordance with the amount of Elective
Deferrals of each Participant which are taken into account in calculating the
Matching Deferral. The amount of Matching Contributions credited to the Account
of any Participant with respect to Elective Deferrals of Compensation for any
Plan Year may not exceed the Matching Deferral Limitation applicable to that
Participant for such Plan Year.
Notwithstanding the foregoing or anything in Section 7.1, if the amount of
"Employee Deferral Contribution" (as defined in the Employer's 401(k) Plan) made
by a Participant during a Plan Year is less than the maximum amount of Employee
Elective Deferrals the Participant is permitted to make to the Employer's 401(k)
Plan (after taking into account the employer's contribution allocated to the
Participant's account and any limitations imposed by the 401(k) Plan or the
Code), all Matching Deferrals, and any income and gain thereon, credited to the
Account of the Participant with respect to Elective Deferrals of Compensation
for such Plan Year shall be forfeited and applied as provided in Section 7.7,
unless the Plan Administrator, in its sole discretion determines that the
failure to contribute such maximum amount to the Employer's 401(k) Plan is the
result of an administrative error by the Employer or other reasons beyond the
Control of the Participant.
4.3 Incentive Contributions
In addition to other contributions provided for under the Plan, the Employer
may, in its sole discretion, select one or more Eligible Employees to receive an
Incentive Contribution to his or her account on such terms as the Employer shall
specify at the time it makes the contribution. For example, the Employer may
contribute an amount to the Participant's Account and condition the payment of
such amount and accrued earnings thereon upon the Participant's remaining
employed by the Employer for an additional specified period of time. The terms
specified by the Employer shall supersede any other provision of this Plan as
regards Incentive Contributions and earnings with respect thereto, provided that
if the Employer does not specify (a) the terms on which such Incentive
Contribution will vest, the Incentive Contribution
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and earnings thereon will vest in the same manner as Matching Deferrals or (b) a
method of distribution, the Incentive Contribution and earnings thereon will be
distributed in a manner consistent with the election last made by the
Participant prior to the Plan Year in which the Incentive Contribution is made.
The Employer, in its discretion, may permit the Participant to designate a
distribution schedule for a particular Incentive Contribution provided the
designation is made before the Employer finally determines that the Participant
will receive the Incentive Contribution.
4.4 Patina Stock Deferral
At the discretion of the Compensation Committee, an Eligible Employee may elect
to defer a percentage or number of shares of a grant of Patina Stock, on such
terms as the Plan Administrator may permit, by completing a Patina Stock
Election Form and filing it with the Plan Administrator prior to any grant of
Patina Stock. Any election to defer a percentage or number of shares of Patina
Stock shall apply only to that grant of Patina Stock, unless the Participant
elects otherwise on the Patina Stock Election Form. Any such deferral shall be
entered by the Plan Administrator as credited to the Patina Stock Subaccount for
that Participant.
ARTICLE 5 - ACCOUNTS
5.1 Accounts
The Plan Administrator shall establish an Account for each Participant
reflecting Elective Deferrals, Matching Deferrals, Incentive Contributions, and
Patina Stock Deferrals made for the Participant's benefit together with any
adjustments in income, gain or loss and any payments from the Account. The Plan
Administrator may establish sub-accounts for each Participant that has more than
one election in effect under Section 7.1 and such other subaccounts as are
necessary for the proper administration of the Plan; provided, however, each
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Participant that has deferred Patina Stock shall be deferred into one or more
separate subaccounts (where each subaccount shall be a "Patina Stock
Subaccount"). As of the last business day of each calendar quarter, the Plan
Administrator shall provide the Participant with a statement of his or her
Account reflecting the income, gains and losses (realized and unrealized),
amounts of deferrals and distributions of such Account since the prior
statement.
5.2 Investments
a. Each Participant shall designate, in accordance with the
procedures established from time to time by the Plan Administrator, the
manner in which the amounts allocated to his or her Account shall be deemed
to be invested from among the Funds made available from time to time for
such purpose by the Plan Administrator. Such Participant may designate one
of such Funds for the deemed investment of all the amounts allocated to his
or her account or such Participant may split the deemed investment of the
amounts allocated to his or her Account between such Funds in such
increments as the Plan Administrator may prescribe. If a Participant fails
to make a proper designation, then his or her Account shall be deemed to be
invested in the Fund or Funds designated by the Plan Administrator from
time to time in a uniform and nondiscriminatory manner.
b. A Participant may change his or her deemed investment designation
for future amounts to be allocated to such Participant's Account. Any such
change shall be made in accordance with the procedures established by the
Plan Administrator, and the frequency of such changes may be limited by the
Plan Administrator.
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c. A Participant may elect to convert his or her deemed investment
designation with respect to the amounts already allocated to such
Participant's Account. Any such conversion shall be made in accordance
with the procedures established by the Plan Administrator, and the
frequency of such conversions may be limited by the Plan Administrator.
d. The preceding provisions of the Section 5.2 notwithstanding, the
Plan Administrator may, in its sole discretion, permit a Participant to
designate that all or a portion of his or her Account (with such portion to
be determined by the Plan Administrator) shall be deemed to be invested in
assets other than the Funds including, but not limited to, securities
issued by the Employer; provided, however, that in no event may a
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Participant designate to have any portion of the Patina Stock Subaccount
which has not yet become vested allocated to any other fund or assets. If
a portion of a Participant's Account is deemed to be invested in a Deemed
Asset, then such Participant may at any time request, in accordance with
the procedures prescribed by the Plan Administrator, that such deemed
investment in such Deemed Asset be converted into a deemed investment in
one or more of the Funds; provided, however, that if the Deemed Asset is an
asset actually held by the Trust at the time such conversion request is
made, then such conversion shall be permitted only at the times and to the
extent that such Deemed Asset may be sold or otherwise disposed of by the
Trustee in compliance with all applicable laws. The Accounts that are
deemed to be invested in a Deemed Asset shall be reduced by the aggregate
amount of the costs and expenses incurred by the Plan, the Employer, the
Plan Administrator, the Trust, and/or the Trustee in connection with such
Deemed Asset, including, without limitation, the costs and expenses
associated with the acquisition, maintenance, and sale or exchange of such
Deemed Asset.
e. The Plan Administrator shall forward to the Record Keeper all
designations and changes thereto made by any Participant with respect to
the manner in which the amounts allocated to his or her Account shall be
deemed to be invested from among the Funds or in a Deemed Asset. All
assets of the Trust shall be invested in the Funds or Deemed Assets as
directed by the Plan Administrator, on behalf of the Participant, in the
Plan Administrator's sole discretion.
f. All deemed investments under the Plan shall be valued at the times
and in the manner determined by the Trustee in its sole discretion. None
of the Plan, the Employer, the Plan Administrator, the Trust, or the
Trustee shall be responsible or liable for any loss resulting from (1) a
Participant's exercise of any control or discretion over the deemed
investment or his or her Account and/or (2) any actions taken by the Plan
Administrator and the Trustee pursuant to this Section 5.2.
ARTICLE 6 - VESTING
6.1 General
A Participant shall immediately vest in (i.e., shall have a nonforfeitable right
to) all Elective Deferrals, and to all income and gain attributable thereto,
credited to his or her Account. Subject to earlier vesting in accordance with
this Article 6, a Participant shall become vested in the portion of his or her
Account attributable to Matching Deferrals made with respect to Elective
Deferrals of Compensation for a given Plan Year as follows:
(a) 33-1/3% at the end of the Plan Year with respect to which the Matching
Deferrals are made;
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(b) 33-1/3% at the end of the first Plan Year following the Plan Year with
respect to which the Matching Deferrals are made; and
(c) 33-1/3% at the end of the second Plan Year with respect to which the
Matching Deferrals are made.
Any portion of a Participant's Account that has not vested on the date that a
Participant's employment with Employer terminates shall, except as provided in
this Article 6, shall be forfeited and applied as provided in Section 7.7.
6.2 Patina Stock Subaccounts
a. If the Plan Administrator, in its sole discretion, permits a
Participant to designate all or a portion of his or her Account to be
deemed to be invested in securities of the Employer pursuant to Section 5.2
of this Plan, such securities in the Patina Stock Subaccount will be
subject to the terms of this Plan that are applicable to the Funds and
Deemed Assets for the calendar year applicable thereto.
b. For any deferral of securities of the Employer made by a
Participant pursuant to Section 4.4 of this Plan, such securities will vest
on such terms as the Plan Administrator may permit.
c. If all or any portion of the Matching Deferrals made pursuant to
Section 4.2 consists of securities of the Employer, that Patina Stock
Subaccount will become vested pursuant to the terms of Section 6.1.
6.3 Change of Control
A Participant shall become fully vested in his or her account, and the Patina
Stock Subaccount, if any, immediately prior to a Change of Control of the
Employer.
6.4 Death, Retirement or Disability
A Participant shall become fully vested in his or her Account (including the
Patina Stock Subaccount) immediately prior to termination of the Participant's
employment by reason of Participant's death, retirement at or after the
attainment of the Retirement Age or Disability. Whether a Participant's
termination of employment is by reason of Participant's Disability or retirement
shall be determined by the Plan Administrator in its sole discretion.
6.5 Discretionary Vesting
The Employer may, in its sole discretion, accelerate the vesting of all or any
portion of the Accounts, and/or the Patina Stock Subaccounts, of any Participant
or all Participants.
6.6 Insolvency
A Participant shall become fully vested in his or her Account immediately prior
to the Employer's becoming Insolvent, in which case the Participant will have
the same rights as a general creditor of the Employer with respect to his or her
Account Balance.
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ARTICLE 7 - PAYMENTS
7.1 Election as to Time and Form of Payment
A Participant shall elect the date at which the Elective Deferrals and vested
Matching Deferrals (including any earnings attributable thereto) will commence
to be paid to the Participant. If a Participant does not indicate a time of
payment, the Participant shall be deemed to have elected to have payment
commence as of the month following the Participant's attainment of Retirement
Age. The Participant shall also elect thereon for payments to be paid in
either:
a. a single lump-sum payment; or
b. annual or monthly installments over a period elected by the
Participant up to 10 years, the amount of each installment to equal the
balance of his or her Account immediately prior to the installment
divided by the number of installments remaining to be paid.
Each such election will be effective for the Plan Year for which it is made and
succeeding Plan Years, unless changed by the Participant. Except as provided
below, any change will be effective for Elective Deferrals and Matching
Deferrals made after August 1, 2001 and will also be effective for Elective
Deferrals and Matching Deferrals made prior to August 1, 2001 unless the
Participant elects to have his original payment date elections remain in effect
for such Elective Deferrals and Matching Deferrals. A Participant may change
the date and form of payment by filing with the Plan Administrator, at least one
year before payments are otherwise scheduled to commence, a new form specifying
a new date of commencement and/or form of benefit payment. Additionally, a
Participant may request a special distribution on a form provided by the Plan
Administrator to receive a specified amount from the Participant's vested
Account, provided that the request is made at least 12 months prior to the
requested distribution. Such special distribution will not change the
Participant's prior distribution election for the remaining balance in the
Participant's Account. Except as provided in Sections 7.2 or 7.3, payment of a
Participant's Account shall be made in accordance with the Participant's
elections under this Section 7.1.
7.2 Termination of Employment
Unless the Plan Administrator, in its sole discretion, determines otherwise,
upon termination of a Participant's employment for any reason other than death,
Disability and retirement after attainment of the Retirement Age, the vested
portion of the Participant's Account shall be paid to the Participant in a
single lump sum as soon as practicable following the date of such termination.
If the Plan Administrator does determine not to make a lump sum payment to a
Participant under this Section, the Plan Administrator may, in its sole
discretion, determine to pay the vested portion of such Participant's Account in
a single lump sum at any time thereafter.
7.3 Disability
If the Participant's employment terminates by the reason of the Participant's
Disability, the amounts credited to a Participant's Account with respect to any
Plan Year shall be paid out in accordance with the election made in accordance
with Section 7.1 unless the Plan Administrator, in its sole discretion,
determines to pay such amounts in one lump sum or the Participant shall have
elected in such Election Form to receive payment of the remaining balance of
such amounts in one lump sum if his or her employment terminates by reason of
Disability.
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7.4 Death
If a Participant dies prior to the complete distribution of his or her Account,
the balance of the Account shall be paid as soon as practicable to the
Participant's designated beneficiary or beneficiaries, in the form elected by
the Participant under either of the following options:
a. a single lump-sum payment; or
b. annual or monthly installments over a period elected by the
Participant up to 10 years, the amount of each installment to equal the
balance of the Account immediately prior to the installment divided by
the number of installments remaining to be paid.
Any designation of beneficiary and form of payment to such beneficiary shall be
made by the Participant on an Election Form filed with the Plan Administrator
and may be changed by the Participant at any time by filing another Election
Form containing the revised instructions. If no beneficiary is designated or no
designated beneficiary survives the Participant, payment shall be made to the
Participant's surviving spouse or, if none, to his or her issue per stirpes, in
a single payment. If no spouse or issue survives the Participant, payment shall
be made in a single lump sum to the Participant's estate.
7.5 Unforeseen Emergency
If a Participant suffers an Unforeseen Emergency, the Plan Administrator, in its
sole discretion, may pay to the Participant only that portion, if any, of the
vested portion of his or her Account which the Plan Administrator determines is
necessary to satisfy the emergency need, including any amounts necessary to pay
any federal, state or local income taxes reasonably anticipated to result from
the distribution. A Participant requesting an emergency payment shall apply for
the payment in writing in a form approved by the Plan Administrator and shall
provide such additional information as the Plan Administrator may require.
7.6 In-Service Withdrawals
At any time prior to the date that a Participant is otherwise entitled to a
distribution from the Plan, the Participant may request a single-sum
distribution of his or her entire vested Account balance from the Plan
Administrator. If approved by the Plan Administrator, such amount will be
distributed as soon as administratively feasible, but shall be reduced by
applicable taxes and a ten percent (10%) forfeiture amount. Such forfeiture
shall be forfeited from the Participant's Account and shall be returned to the
Employer or used to reduce future contributions payable by the Employer.
7.7 Forfeiture of Non-vested Amounts
To the extent that any amounts credited to a Participant's Account are not
vested at the time such amounts are otherwise payable under Section 7.1, such
amounts shall be forfeited and shall, at the option of the Employer, either be
paid to the Employer or used to satisfy the Employer's obligation to make
contributions to the Trust under the Plan.
7.8 Taxes
All federal or state taxes that the Plan Administrator determines are required
to be withheld from any payments made pursuant to this Article 7 shall be
withheld. If a Participant is assessed federal, state or local income taxes by
reason of, and computed on the basis of, his or her undistributed deferred
Compensation or undistributed interest accrued on his or her Account, the
Participant shall notify the Plan
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Administrator in writing of such assessment and there shall be distributed from
the Participant's Account deferred Compensation or accrued interest in an amount
equal to such tax assessment, together with any interest due and penalties
assessed thereupon within 30 days following such notice; provided however, that
if the Plan Administrator determines that such assessment is improper, it may
request that the Participant contest the assessment, at the expense of the
Employer (which expense shall include all costs of appeal and litigation,
including legal and accounting fees, and any additional interest and penalties
assessed on the deficiency from and after the date of the Participant's notice
to the Plan Administrator); and during the period such contest is pending, the
sums otherwise distributable pursuant to this Article 7 shall not be
distributed.
7.9 Form of Distributions
The Plan Administrator shall determine in its sole discretion the extent to
which any distribution under the Plan (whether payable in a single lump sum or
installments) shall be paid in cash, in kind, or both in cash and in kind.
Without limiting the scope of the Plan Administrator's discretion pursuant to
the preceding sentence, the Plan Administrator may in its sole discretion direct
that all or any portion of a Participant's Account be distributed in kind to
such Participant's designated beneficiaries based upon the Funds and/or assets
in which such Account is deemed to be invested pursuant to Section 5.2
immediately prior to the date of such distribution. No Participant or
beneficiary of a Participant shall have the right to demand a distribution in
cash, in kind, or any combination thereof.
7.10 Tax Gross-Up Payments
If, as a result of (a) a Participant's termination of employment other than for
cause in connection with a Change of Control, (b) the Employer's amendment of
the Plan in connection with a Change of Control or (c) the Employer's
termination of the Plan pursuant to Section 9.2 in connection with a Change of
Control, all or a portion of a Participant's Account is paid prior to the date
the Participant had otherwise elected for such payment under the Plan without
the consent of such Participant (or his beneficiary), the Employer shall pay an
additional payment a Tax Gross-up Payment to the Participant (or his
beneficiary) to compensate such Participant (or his beneficiary) for the taxes
imposed with respect to the payment. As used in this Section, the term 'cause'
shall mean the Participant's gross negligence or willful misconduct in
performance of the duties of the Participant's employment, or the Participant's
final conviction of a felony or of a misdemeanor involving moral turpitude.
ARTICLE 8 - ADMINISTRATIVE PROCEDURES AND DISPUTE RESOLUTION
8.1 Administrative Authority
The Plan Administrator shall have discretionary authority to perform all
functions necessary or appropriate to the operation of the Plan, including
without limitation authority to (a) construe and interpret the provisions of the
Plan document and any related instrument and determine any question arising
under the Plan document or related instrument, or in connection with the
administration or operation thereof; (b) determine in its sole discretion all
facts and relevant considerations affecting the eligibility of any Employee or
Director to be or become a Participant; (c) decide eligibility for, and the
amount of, benefits for any Participant or beneficiary; (d) authorize and direct
all disbursements under the Plan; and (e) employ and engage such persons,
counsel and agents to obtain such administrative, clerical, medical, legal,
audit and actuarial services as it may deem necessary in carrying out the
provisions of the Plan. The Employer shall be the "administrator" as defined in
Section 3(16)(A) of ERISA for purposes of the reporting and disclosure
requirements of ERISA and the Code.
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8.2 Expenses
All reasonable expenses that are necessary to operate and administer the Plan
shall be paid directly by the Employer. Such costs shall include fees or
expenses arising from the retention of any attorneys, accountants, actuaries,
consultants or recordkeepers required by the Plan Administrator to discharge its
duties under the Plan. Nothing herein shall require the Employer to pay or
reimburse any person for any cost, liability, loss, fee or expense incurred by
such person in any dispute with the Employer; nor may any person reimburse
himself, herself or itself from any Plan contributions or from the principal or
income of investment or funding vehicle for the Plan for any such cost,
liability, loss, fee or expense.
8.3 Insurance
The Employer may, but need not, obtain liability insurance to protect its
directors, officers, employees or representatives against loss in the discharge
of their responsibility in the operation of the Plan.
8.4 Claims Procedure
(a) A claim for benefits shall be considered filed only when actually
received by the Plan Administrator.
(b) Any time a claim for benefits is wholly or partially denied, the Claimant
shall be given written notice of such denial within 30 days after the claim is
filed, unless special circumstances require an extension of time for processing
the claim. If there is an extension, the Claimant shall be notified of the
extension and the reason for the extension within the initial 30 day period. The
extension shall expire within 60 days after the claim is filed. Such notice will
indicate the reason for denial, the pertinent provisions of the Plan on which
the denial is based, an explanation of the claims appeal procedure set forth
herein, and a description of any additional material or information necessary to
perfect the claim and an explanation of why such material or information is
necessary.
8.5 Appeal Procedures
(a) Any person who has had a claim for benefits denied by the Plan
Administrator, or is otherwise adversely affected by the action or inaction of
the Plan Administrator, shall have the right to request review by the Plan
Administrator. Such request must be in writing, and must be received by the Plan
Administrator within 60 days after such person receives notice of the Plan
Administrator's action. If written request for review is not made within such
60-day period, the Claimant shall forfeit his or her right to review. The
Claimant or a duly authorized representative of the Claimant may review all
pertinent documents and submit issues and comments in writing.
(b) The Plan Administrator shall then review the claim. The Plan
Administrator may issue a written decision reaffirming, modifying or setting
aside its former action within 30 days after receipt of the written request for
review, or 60 days if special circumstances require an extension. The Claimant
shall be notified in writing of any such extension within 30 days following the
request for review. An original or copy of the decision shall be furnished to
the Claimant. The decision shall set forth the reasons and pertinent plan
provisions or relevant laws on which the decision rests. The decision shall be
final and binding upon the Claimant and the Plan Administrator and all other
persons having or claiming to have an interest in the Plan or in any Account
established under the Plan.
8.6 Arbitration
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(a) Any Participant's or beneficiary's claim remaining unresolved after
exhaustion of the procedures in Section 8.4 and 8.5 (and to the extent permitted
by law any dispute concerning any breach or claimed breach of duty regarding the
Plan) shall be settled solely by binding arbitration at the Employer's principal
place of business at the time of the arbitration, in accordance with the
Employment Claims Rules of the American Arbitration Association. Judgment on any
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Each party to any dispute regarding the Plan shall pay the fees and
costs of presenting his, her or its case in arbitration. All other costs of
arbitration, including the costs of any transcript of the proceedings,
administrative fees, and the arbitrator's fees shall be borne equally by the
parties.
(b) Except as otherwise specifically provided in this Plan, the provisions of
this Section 8.6 shall be absolutely exclusive for any and all purposes and
fully applicable to each and every dispute regarding the Plan including any
claim which, if pursued through any state or federal court or administrative
proceeding, would arise at law, in equity or pursuant to statutory, regulatory
or common law rules, regardless of whether such claim would arise in contract,
tort or under any other legal or equitable theory or basis. The arbitrator who
hears or decides any claim under the Plan shall have jurisdiction and authority
to award only Plan benefits and prejudgment interest; and apart from such
benefits and interest, the arbitrator shall not have any authority or
jurisdiction to make any award of any kind including, without limitation,
compensatory damages, punitive damages, foreseeable or unforeseeable economic
damages, damages for pain and suffering or emotional distress, adverse tax
consequences or any other kind or form of damages. The remedy, if any, awarded
by such arbitrator shall be the sole and exclusive remedy for each and every
claim that is subject to arbitration pursuant to this Section 8.6. Any
limitations on the relief that can be awarded by the arbitrator are in no way
intended (i) to create rights or claims that can be asserted outside arbitration
or (ii) in any other way to reduce the exclusivity of arbitration as the sole
dispute resolution mechanism with respect to this Plan.
(c) The Plan and the Employer will be the necessary parties to any action or
proceeding involving the Plan. No person employed by the Employer, no
Participant or beneficiary or any other person having or claiming to have an
interest in the Plan will be entitled to any notice or process, unless such
person is a named party to the action or proceeding. In any arbitration
proceeding all relevant statutes of limitation shall apply. Any final judgment
or decision that may be entered in any such action or proceeding will be binding
and conclusive on all persons having or claiming to have any interest in the
Plan.
8.7 Notices
Any notice from the Plan Administrator to an Employee, Participant or
beneficiary regarding this Plan may be addressed to the last known residence of
said person as indicated in the records of the Employer. Any notice to, or any
service of process upon, the Employer or the Plan Administrator with respect to
this Plan may be addressed as follows:
PLAN ADMINISTRATOR
Patina Oil & Gas Corporation
1625 Broadway Suite 2000
Denver, Colorado 80202
8.8 Indemnification
To the extent permitted by law, the Employer shall, and hereby does, indemnify
and hold harmless any director, officer or employee of the Employer who is or
may be deemed to be responsible for the operation of the Plan, from and against
any and all losses, claims, damages, or liabilities (including attorneys' fees
and amounts paid, with the approval of the Board, in settlement of any claim)
arising out
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of or resulting from a duty, act, omission or decision with respect to the Plan,
so long as such duty, act, omission, or decision does not involve gross
negligence or willful misconduct on the part of such director, officer or
employee. Any individual so indemnified shall, within 30 days after receipt of
notice of any action, suit or proceeding, notify the Employer and offer in
writing to the Employer the opportunity, at the Employer's expense, to handle
and defend such action, suit or proceeding, and the Employer shall have the
right, but not the obligation, to conduct the defense in any such action, suit
or proceeding. Any individual's failure to give the Employer such notice and
opportunity shall relieve the Employer of any liability to said individual under
this Section 8.8. The Employer may satisfy its obligations under this provision
(in whole or in part) by the purchase of insurance. Any payment by an insurance
carrier to or on behalf of such individual shall, to the extent of such payment,
discharge any obligation of the Employer to the individual under this
indemnification.
ARTICLE 9 - AMENDMENT AND TERMINATION
9.1 Amendments
The Employer, upon action of its Board of Directors or an authorized committee
thereof, shall have the right to amend the Plan from time to time, subject to
Section 9.3, by an instrument in writing which has been executed on the
Employer's behalf by its duly authorized officer.
9.2 Termination of Plan
This Plan is strictly a voluntary undertaking on the part of the Employer and
shall not be deemed to constitute a contract between the Employer and any
Eligible Employee (or any other employee) or a consideration for, or an
inducement or condition of employment for, the performance of the services by
any Eligible Employee (or other employee). The Employer reserves the right to
terminate the plan at any time, subject to the approval of the Board of
Directors and Section 9.3, by an instrument in writing which has been executed
on the Employer's behalf by its duly authorized officer. Upon termination, the
Employer may (a) elect to continue to maintain the Trust to pay benefits
hereunder as they become due as if the Plan had not terminated or (b) direct the
Trustee to pay promptly to Participants (or their beneficiaries) the vested
balance of their Accounts. For purposes of the preceding sentence, in the event
the Employer chooses to implement clause (b), the Account balances of all
Participants who are in the employ of the Employer at the time the Trustee is
directed to pay such balances shall become fully vested and nonforfeitable.
After Participants and their beneficiaries are paid all Plan benefits to which
they are entitled, all remaining assets of the Trust attributable to
Participants who terminated employment with the Employer prior to termination of
the Plan who were not fully vested in their Accounts under Article 6 at this
time, shall be returned to their Employer.
9.3 Existing Rights
No amendment or termination of the Plan shall adversely affect the rights of any
Participant with respect to amounts that have been credited to his or her
Account prior to the date of such amendment or termination. In addition, no
amendment, modification or termination of the Plan made subsequent to a Change
in Control will, without consent of the Participant or beneficiary, affect the
right of a Participant or beneficiary with respect to his or her Account as of
the day prior to the date of the amendment, modification or termination. Such
Account will continue to be subject to and governed by the terms of the Plan as
set forth in the Plan document on the day prior to the date of the amendment,
modification or termination. In addition, subsequent to a Change in Control, no
change may be made to the investment options that were available to Participants
and beneficiaries under Section 5.2 of the Plan on the day prior to the Change
in Control, unless consent of the Participants and beneficiaries has been
obtained.
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Notwithstanding the foregoing, subsequent to a Change in Control, the
Employer may distribute the entire value of all Accounts in lump sum payments to
all Participants and beneficiaries, in accordance with Section 7.10.
ARTICLE 10 - MISCELLANEOUS
10.1 No Funding
The Plan constitutes a mere promise by the Employer to make payments in
accordance with the terms of the Plan and Participants and beneficiaries shall
have the status of general unsecured creditors of the Employer. Nothing in the
Plan will be construed to give any employee or any other person rights to any
specific assets of the Employer or of any other person. In all events, it is
the intent of the Employer that the Plan be treated as unfunded for tax purposes
and for purposes of Title 1 of ERISA.
10.2 Non-assignability
None of the benefits, payments, proceeds or claims of any Participant or
beneficiary shall be subject to any claim of any creditor of any Participant or
beneficiary and, in particular, the same shall not be subject to attachment or
garnishment or other legal process by any creditor of such Participant or
beneficiary, nor shall any Participant or beneficiary have any right to
alienate, anticipate, commute, pledge, encumber or assign any of the benefits or
payments or proceeds which he or she may expect to receive, contingently or
otherwise, under the plan.
10.3 Limitation of Participants' Rights
Nothing contained in the Plan shall confer upon any person a right to be
employed or to continue in the employ of the Employer, or interfere in any way
with the right of the Employer to terminate the employment of a participant in
the Plan any time, with or without cause.
10.4 Participants Bound
Any action with respect to the Plan taken by the Plan Administrator or the
Employer or the Trustee or any action authorized by or taken at the direction of
the Plan Administrator, the Employer or the Trustee shall be conclusive upon all
Participants and beneficiaries entitled to benefits under the plan.
10.5 Receipt and Release
Any payment to any Participant or beneficiary in accordance with the provisions
of the Plan shall, to the extent thereof, be in full satisfaction of all claims
against the Employer, the Plan Administrator and the Trustee under the Plan, and
the Plan Administrator may require such Participant or beneficiary, as a
condition precedent to such payment, to execute a receipt and release to such
effect. If any Participant or beneficiary is determined by the Plan
Administrator to be incompetent by reason or physical or mental disability
(including minority) to give a valid receipt and release, the Plan Administrator
may cause the payment or payments becoming due to such person to be made to
another person for his or her benefit without responsibility on the part of the
Plan Administrator, the Employer or the Trustee to follow the application of
such funds.
10.6 Plan Does Not Affect Employment Rights
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The Plan does not provide any employment rights to any Eligible Employee or
Participant. The Employer expressly reserves the right to discharge an Employee
or to increase or decrease the salary or Compensation of an Employee at any
time, with or without cause and with or without prior notice, without regard to
the effect such discharge would have on the Employee's interest in the Plan.
10.7 Governing Law
The Plan shall be construed, administered, and governed in all respects under
and by the laws of the state of Colorado.
10.8 Severability
If any provision shall be held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions hereof shall continue to be
fully effective.
10.9 Headings and Subheadings
Headings and subheadings in this Plan are inserted for convenience only and are
not to be considered in the construction of the provisions hereof.
PATINA OIL & GAS CORPORATION,
a Delaware Corporation
By: /s/ David J. Kornder
----------------------------
David J. Kornder
Executive Vice President and
Chief Financial Officer
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