EXHIBIT 10.26
PIONEER NATURAL RESOURCES COMPANY
PIONEER NATURAL RESOURCES USA, INC.
SEVERANCE AGREEMENT
This Severance Agreement ("Agreement") is entered into, effective January
1, 2005, among Pioneer Natural Resources Company, a Delaware corporation
("Parent"), Pioneer International Resources Company, a Delaware corporation that
is a wholly-owned subsidiary of Parent, and Pioneer Natural Resources Canada
Inc., a British Columbia, Canada corporation that is a wholly-owned subsidiary
of Pioneer International Resources Company (together herein, "Company"), and
Todd A. Dillabough ("Officer"). As used in this Agreement, the term "Company"
shall be deemed to include Company and its direct or indirect wholly-owned
subsidiaries.
Recitals
A. Company acknowledges that Officer is a significant employee of the
Company, possessing skills and knowledge instrumental to the successful conduct
of the Company's business. Company is willing to enter into a severance
arrangement with Officer in order to better ensure itself of the continued
management services of Officer for itself and its subsidiaries and, in part, to
induce Officer to continue to provide those services and subject himself to
certain restrictions regarding the use of Company information.
B. Officer is willing to subject himself to the restrictions mentioned
above in part to induce Company to enter into a compensation arrangement that
provides for, among other things, the payment of certain benefits upon the
termination of Officer's employment under certain circumstances.
Now, therefore, for and in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:
1. Position and Duties. Officer shall initially serve Company as President,
and, in so doing, shall report to Company's Board of Directors (the "Board"),
Company's President and chief executive officer (the "Chief Executive Officer")
or such officers of Company as is prescribed by Company's bylaws, by resolutions
of the Board or by direction of the Chief Executive Officer. Officer shall have
supervision and control over, and responsibility for, such management and
operational functions of the Company currently assigned to such position, and
shall have such other or different functions, powers and duties (including
holding officer positions with one or more subsidiaries of Company), as may from
time to time be prescribed by the Board, the Chief Executive Officer, or any
other Company officer to whom Officer reports, so long as such functions, powers
and duties are reasonable and customary for a serving an enterprise comparable
to Company. Officer's failure to accept and perform any such other or different
functions, powers or duties shall be deemed to be a Termination of Employment by
voluntary action of Officer, and shall not constitute a Termination for Good
Reason.
2. Devotion of Efforts. So long as Officer is serving Company in the
capacities described in Section 1, he shall devote his full time, skill and
attention and his best efforts during normal business hours to the business and
affairs of the Company to the extent necessary to discharge faithfully and
efficiently his duties and responsibilities, except for usual, ordinary and
customary periods of vacation and absence due to illness or other disability, or
such periods of leave as are approved in writing by the Board or the Chief
Executive Officer. The provisions of this Section shall not be construed to
prevent Officer from making investments in other businesses or enterprises, so
long as such investments do not violate the Company's conflict of interest
policies or require the provision of services by Officer to such businesses or
enterprises to an extent that would interfere in any material respect with the
performance of Officer's duties and responsibilities to the Company.
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3. Compensation.
(a) Base Salary. As compensation for Officer's services, the
Company shall pay Officer an annualized base salary of a specified amount per
annum (the "Base Salary"). The Base Salary shall be payable in substantially
equal semi-monthly installments. The Compensation Committee of the Board of
Directors of Parent (the "Compensation Committee") or Chief Executive Officer
may review the Base Salary periodically and may grant such increases, or effect
such reductions, in the Base Salary as the Compensation Committee or Chief
Executive Officer consider appropriate in accordance with such compensation
guidelines and policies as they may establish from time to time. The Base Salary
applicable from time to time for any period of Officer's employment with the
Company, commencing on the effective date of this Agreement, shall be that as
reflected in the records of the Human Resources Department.
(b) Bonuses. Officer shall be entitled to receive (in
addition to the Base Salary) such annual or other periodic bonus as the
Compensation Committee or Chief Executive Officer may award in accordance with
such compensation guidelines and policies as they may establish from time to
time.
(c) Other Benefits. Officer shall be entitled to participate
in, or receive benefits under, any employee benefit plan or other arrangement
made available now or in the future by the Company to the officers of Company (a
"Benefit Plan"), subject to the terms, conditions and overall administration of
such Benefit Plan. Officer's participation in, or receipt of benefits under, any
Benefit Plan shall be in addition to (and not in lieu of) the Base Salary.
(d) Vacations and Holidays. Officer shall be entitled to the
number of paid vacation days in each calendar year determined by Company from
time to time for its officers and shall be entitled to all paid holidays given
by the Company to its employees in general.
4. Relocation. Officer shall initially be required to perform his duties
and responsibilities hereunder at Company's offices located in Calgary, Alberta,
Canada. If the Company requires Officer to perform his duties and
responsibilities at any location that is more than 50 miles from the nearest
border of Calgary, Alberta, Canada, (a "New Location") and, within 30 days after
receiving notice thereof, Officer accepts such relocation rather than
terminating his employment with the Company pursuant to Section 5(a), the
Company shall pay to Officer, or shall reimburse Officer for (upon submission of
reasonably detailed evidence thereof), such sums as are provided for under the
Relocation Policy for Exempt Employees as established by Company. Officer's
failure to accept such relocation within 30 days after receiving notice thereof,
shall be deemed to be a Termination of Employment by voluntary action of
Officer, and shall not constitute a Termination for Good Reason.
5. Termination of Employment.
(a) Right to Terminate. Officer's employment with the Company
(including his officer position with Company) shall be terminated upon the
death, Disability (as defined in subsection (g)(3) of this Section) or Normal
Retirement (as defined in subsection (g)(6) of this Section) of Officer. In
addition, Officer's employment with the Company (including his officer position
with Company) may be terminated at any time and for any reason as a result of a
dismissal by the Company or as a result of a voluntary action by Officer. Any
such termination of employment is referred to herein as a "Termination of
Employment."
(b) Notice of Termination.
(1) Any Termination of Employment that is the result
of Officer's Disability shall be communicated by the Company to Officer
in a written notice thereof. Such notice shall state that, in the
opinion of the Board, Officer is suffering from a Disability and such
Disability is the reason for the Termination of Employment.
(2) Any Termination of Employment that is the result
of Officer's Normal Retirement shall be communicated by Officer to
Company by a written notice thereof. Such notice shall state that
Officer is retiring and shall specify the date of such Termination of
Employment, which shall be not less than 30 days following the date
such notice is received by Company.
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(3) Any Termination of Employment that is the result
of a dismissal by the Company (but is not the result of Officer's
Disability) shall be communicated by the Company to Officer by a
written notice thereof. Such notice shall state whether or not (in the
Company's opinion) the Termination of Employment constitutes a
Termination for Cause (as defined in subsection (g)(7) of this Section)
and, if so, shall set forth in reasonable detail facts and
circumstances constituting a basis for such Termination for Cause.
(4) Any Termination of Employment that is the result
of a voluntary action by Officer (but is not the result of Officer's
Normal Retirement) shall be communicated by Officer to Company by
written notice thereof. Such notice shall state whether or not (in
Officer's opinion) the Termination of Employment constitutes a
Termination for Good Reason (as defined in subsection (g)(8) of this
Section) and, if so, shall set forth in reasonable detail the facts and
circumstances claimed as the basis for such Termination for Good
Reason. Such notice shall also specify the date of such Termination of
Employment, which (if the Termination of Employment does not constitute
a Termination for Good Reason) shall be not less than 30 days following
the date such notice is received by Company.
(c) Date of Termination of Employment. For purposes of this
Agreement, the date of a Termination of Employment shall be (1) if the
Termination of Employment is the result of Officer's death, the date of such
death, (2) if the Termination of Employment is the result of Officer's
Disability, the date on which the notice described in subsection (b)(1) of this
Section is received by Officer, (3) if the Termination of Employment is the
result of Officer's Normal Retirement, the date specified in the notice
described in subsection (b)(2) of this Section, (4) if the Termination of
Employment is the result of a dismissal by the Company (but is not the result of
Officer's Disability), the date on which the notice described in subsection
(b)(3) of this Section is received by the Officer, or such later date as may be
specified by the Company in such notice, and (5) if the Termination of
Employment is the result of a voluntary action by Officer (but is not the result
of Officer's Normal Retirement), the date specified in the notice described in
subsection (b)(4) of this Section, or such earlier date as the Company may
specify, provided that if such date specified by Company is less than 30 days
following the date Company received notice from Employee, then Company agrees to
pay Officer an amount equal to one-twelfth (1/12) of the Officer's Base Salary,
which amount shall be paid in cash on the date of such Termination of
Employment.
(d) Payments Due Upon Termination of Employment. The
provisions of subsections (d)(1) and (d)(3) of this Section shall apply to any
applicable Termination of Employment, whether occurring prior to, at the time of
or at any time following a Change in Control (as defined in subsection (g)(2) of
this Section); and the provisions of subsection (d)(2) of this Section shall
apply only if such Termination of Employment is prior to a Change in Control.
(1) Death, Disability or Normal Retirement. If the
Termination of Employment is the result of Officer's death, Disability
or Normal Retirement, the Company shall pay the following amounts to
Officer (or his estate or personal representative):
(A) The Base Salary (at the rate in effect
on the date of such Termination of Employment, as reflected in
the records of the Human Resources Department) pro-rated
through and including the date of such Termination of
Employment, to the extent not already paid, which amount shall
be paid in cash on the first normal semi-monthly Base Salary
payment date immediately succeeding the date of such
Termination of Employment;
(B) Any amounts arising from Officer's
participation in, or benefits under, any Benefit Plan through
and including the date of such Termination of Employment,
which amounts shall be payable in accordance with the terms
and conditions of such Benefit Plan; and
(C) An amount equal to one full year's Base
Salary (at the rate in effect on the date of such Termination
of Employment, as reflected in the records of the Human
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Resources Department), which amount shall be paid in cash
within 30 days following the date of such Termination of
Employment.
(2) Termination for Good Reason or Not for Cause. If
the Termination of Employment (i) is the result of a dismissal by the
Company (but is not the result of Officer's Disability) and does not
constitute a Termination for Cause or (ii) is the result of a voluntary
action by Officer (but is not the result of Officer's Normal
Retirement) and constitutes a Termination for Good Reason, the Company
shall pay the following amounts, and provide the following benefits to
Officer:
(A) The Base Salary (at the rate in effect
on the date of such Termination of Employment, as reflected in
the records of the Human Resources Department) pro-rated
through and including the date of such Termination of
Employment, to the extent not already paid, which amount shall
be paid in cash on the date of such Termination of Employment;
(B) Any amount arising from Officer's
participation in, or benefits under, any Benefit Plan through
and including the date of such Termination of Employment,
which amounts shall be payable in accordance with the terms
and conditions of such Benefit Plan;
(C) An amount equal to one full year's Base
Salary (at the rate in effect on the date of such Termination
of Employment, as reflected in the records of the Human
Resources Department), which amount shall be paid in cash on
the date of such Termination of Employment;
(D) For a period of one year following the
date of such Termination of Employment, a continuation of all
health insurance coverage applicable at the time of such
Termination of Employment to Officer and his immediate family
under any Benefit Plan; and
(E) With respect to a Termination of
Employment described in subsection (d)(2)(i) of this Section,
if the date of Termination of Employment is less than thirty
(30) days after the date of notice thereof, an amount equal to
one-twelfth (1/12) of the Officer's Base Salary, which amount
shall be paid in cash on the date of such Termination of
Employment.
(3) Termination for Cause or Not for Good Reason. If
the Termination of Employment (i) is the result of a dismissal by the
Company (but is not the result of Officer's Disability) and constitutes
a Termination for Cause or (ii) is the result of a voluntary action by
Officer (but is not the result of Officer's Normal Retirement) and does
not constitute a Termination for Good Reason, the Company shall pay the
following amounts to Officer:
(A) The Base Salary (at the rate in effect
on the date of such Termination of Employment, as reflected in
the records of the Human Resources Department) pro-rated
through and including the date of such Termination of
Employment, to the extent not already paid, which amount shall
be paid in cash on the first normal semi-monthly Base Salary
payment date immediately succeeding the date of such
Termination of Employment; and
(B) Any amounts arising from Officer's
participation in, or benefits under, any Benefit Plan through
and including the date of such Termination of Employment,
which amounts shall be payable in accordance with the terms
and conditions of such Benefit Plan.
(e) Additional Provisions Applicable Upon Termination of
Employment Concurrent with or Following Change in Control. The following
provisions shall apply to any such Termination of Employment occurring at the
time of, or at any time within one year following, a Change in Control.
(1) Termination for Good Reason or Not for Cause. If
the Termination of Employment (i) is the result of a dismissal by the
Company (but is not the result of Officer's Disability) and does not
constitute a Termination for Cause, or (ii) is the result of a
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voluntary action by Officer (but is not the result of Officer's Normal
Retirement) and constitutes a Termination for Good Reason, the Company
shall pay the following amounts, and provide the following benefits, to
Officer:
(A) The Base Salary (at the rate in effect
on the date of such Termination of Employment, as reflected in
the records of the Human Resources Department) pro-rated
through and including the date of such Termination of
Employment, to the extent not already paid, which amount shall
be paid in cash on the date of such Termination of Employment;
(B) A lump sum in cash equal to 2.00 times
Officer's Base Salary (at the rate in effect on the date of
such Termination of Employment, as reflected in the records of
the Human Resources Department), which amount shall be paid in
cash on the date of such Termination of Employment;
(C) Any amount arising from Officer's
participation in, or benefits under, any Benefit Plan through
and including the date of such Termination of Employment,
which amounts shall be payable in accordance with the terms
and conditions of such Benefit Plan;
(D) For a period of one year following the
date of such Termination of Employment, a continuation of all
health insurance coverage applicable at the time of such
Termination of Employment to Officer and his immediate family
under any Benefit Plan; and
(E) With respect to a Termination of
Employment described in subsection (e)(1)(i) of this Section,
if the date of Termination of Employment is less than thirty
(30) days after the date of notice thereof, an amount equal to
one-twelfth (1/12) of the Officer's Base Salary, which amount
shall be paid in cash on the date of such Termination of
Employment.
(2) Voluntary Termination Not for Good Reason or for
Failure to Relocate. Notwithstanding any other provision of this
subsection (e) to the contrary, if the Termination of Employment (i) is
the result of a voluntary action by Officer, does not constitute a
Termination for Good Reason, and occurs at least six months, but not
more than one year, following a Change in Control, or (ii) whether
voluntary or involuntary, occurs at the time of, or at any time within
one year following, a Change in Control and following the Company's
requiring the Officer to perform his duties and responsibilities
hereunder at a New Location, which relocation is not accepted by
Officer within 30 days after receiving notice thereof, then the Company
shall pay to Officer all amounts that would be payable pursuant to
subsection (d)(2) of this Section had such Termination of Employment
occurred prior to the Change in Control and constituted a Termination
for Good Reason.
(3) Retirement Benefits Funded. Upon a Change in Control, any
accrued but unfunded retirement benefit obligations to Officer under
any then existing retirement plan shall be fully funded to a Rabbi
Trust for the benefit of such Officer, which amount shall be paid in
cash on the date of such Change in Control.
(f) Payment Contingent on Release. If, upon termination,
Officer is entitled to a payment provided in subsection (d)(2) or (e) of this
Section 5, then such payment shall be subject to, and contingent upon, Officer's
execution of a General Release Agreement in favor of the Company in
substantially the form and substance as the one attached hereto as Schedule A.
(g) Certain Definitions. As used in this Section and elsewhere
in this Agreement, the following terms shall have the respective meanings
indicated:
(1) "Across-the-Board Salary Reduction" shall mean a
reduction in the Base Salary that is a part of, and is at a rate
consistent with, a reduction in the base salaries paid to substantially
all officers of Company.
(2) "Change in Control" shall mean the occurrence,
following the Effective Date hereof, of either of the following events:
(i) an event that would constitute a Change in control as that term is
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defined in the Company's Long-Term Incentive Plan, or any successor
plan thereto, or (ii) consummation of a Business Combination not
otherwise constituting a Change in Control but, pursuant to which the
Person serving as Chief Executive Officer at the time of the execution
of the initial agreement is removed from, or replaced in, such capacity
with respect to the corporation resulting from such Business
Combination.
(3) "Disability" shall mean Officer's physical or
mental impairment or incapacity of sufficient severity that, in the
opinion of the Board, either (A) Officer is unable to continue to
perform his duties and responsibilities hereunder or (B) Officer's
condition entitles him to disability benefits under any Benefit Plan
providing for the payment thereof.
(4) "Excessive Salary Reduction" shall mean (A) a
reduction in the Base Salary that is not an Across-the-Board Salary
Reduction (as defined in paragraph (1) of this subsection) and that,
when combined with the net effect of all prior increases and reductions
in the Base Salary (other than prior reductions that were
Across-the-Board Salary Reductions), results in the Base Salary being
less than 80% of the highest Base Salary to which Officer has ever been
subject pursuant to this Agreement (as reflected in the records of the
Human Resources Department) or (B) a reduction in the Base Salary
(whether or not an Across-the-Board Salary Reduction) that, when
combined with the net effect of all prior increases and reductions in
the Base Salary (whether or not Across-the-Board Salary Reductions),
results in the Base Salary being less than 65% of the highest Base
Salary to which Officer has ever been subject pursuant to this
Agreement (as reflected in the records of the Human Resources
Department).
(5) "Incumbent Board" means the individuals who, as
of the date of this Agreement, constitute the board of directors of
Parent and any other individual who becomes a director of Parent after
that date and whose election or nomination for election by Parent's
shareholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs
as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Incumbent Board.
(6) "Normal Retirement" shall have the meaning given to such term
in Section 1.29 of the Long-Term Incentive Plan.
(7) "Termination for Cause" shall mean a Termination
of Employment as a result of a dismissal by the Company following (A)
Officer's continued failure to substantially perform his duties and
responsibilities (other than any such failure resulting from Officer's
physical or mental impairment or incapacity) after written demand for
substantial performance is delivered by the Company specifically
identifying the manner in which the Company believes Officer has not
substantially performed his duties and responsibilities, (B) Officer's
engaging in fraud or other misconduct that is injurious to the Company,
monetarily or otherwise, (C) Officer's engaging in insubordination, (D)
Officer's violation of, or failure to comply with, any written policy,
guideline, rule or regulation of the Company which specifically
provides that Officer may be dismissed (or his employment terminated)
as a consequence of any such violation or failure to comply, (E)
Officer's conviction of (or plea of guilty or nolo contendere to a
charge of) any felony, or any crime or misdemeanor involving moral
turpitude or financial misconduct, or (F) a material violation by
Officer of the provisions of Section 6. For purposes of subsection (B)
above, an act, or failure to act, on Officer's part shall be considered
"misconduct" if done, or omitted, by Officer not in good faith and
without reasonable belief that such act, or failure to act, was in the
best interest of the Company.
(8) "Termination for Good Reason" shall mean a
Termination of Employment as a result of voluntary action by Officer
within 30 days after receiving notice of (A) the demotion of the
Officer to an officer position junior to the officer position specified
in Section 1 or to a non-officer position, (B) an Excessive Salary
Reduction (as defined in paragraph (4) of this subsection), or (C) the
failure by Parent to obtain the assumption agreement described in
Section 7(g) on or prior to a succession described in Section 7(g).
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6. Nonpublic Information.
(a) Officer hereby acknowledges that, in connection with his
employment with the Company, he has received, and will continue to receive,
various information regarding the Company and its business, operations and
affairs. All such information, to the extent not publicly available other than
as a result of a disclosure by Officer in violation of this Agreement, is
referred to herein as the "Nonpublic Information."
(b) Officer hereby agrees that, from and after the date hereof
and continuing until three (3) years following a Termination of Employment, he
will keep all Nonpublic Information confidential and will not, without the prior
written consent of the Board or the Chief Executive Officer, disclose any
Nonpublic Information in any manner whatsoever or use any Nonpublic Information
other than in connection with the performance of his services to the Company
hereunder; provided, however, that the provisions of this subsection shall not
prevent Officer from (1) disclosing any Nonpublic Information to any other
employee of the Company or to any representative or agent of the Company (such
as an independent accountant, engineer, attorney or financial advisor) when such
disclosure is reasonably necessary or appropriate (in Officer's judgment) in
connection with the performance by Officer of his duties and responsibilities
hereunder or (2) disclosing any Nonpublic Information as required by applicable
law, rule, regulation or legal process (but only after compliance with the
provisions of subsection (c) of this Section).
(c) If Officer is requested pursuant to, or required by,
applicable law, rule, regulation or legal process to disclose any Nonpublic
Information, Officer will notify Parent promptly so that the Company may seek a
protective order or other appropriate remedy or, in the Company's sole
discretion, waive compliance with the terms of this Section, and Officer will
fully cooperate in any attempt by the Company to obtain any such protective
order or other remedy. If no such protective order or other remedy is obtained,
or the Company waives compliance with the terms of this Section, Officer will
furnish or disclose only that portion of the Nonpublic Information as is legally
required and will exercise all reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded the Nonpublic Information that is
so disclosed.
7. Miscellaneous Provisions.
(a) Mitigation. Officer shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise, and the amount of any payment provided for in this Agreement shall
not be reduced by any compensation earned by Officer as the result of employment
by another employer after the date of any Termination of Employment or
otherwise.
(b) Interest. Until paid, all past due amounts required to be
paid by the Company to Officer under any provision of this Agreement shall bear
interest at the per annum rate equal to the higher of (1) twelve percent (12%),
or (2) the prime rate announced from time to time by the Company's primary bank
lender, plus three percent (3%), both subject to the maximum rate allowed by
law.
(c) Equitable Relief Available. Officer acknowledges that
remedies at law may be inadequate to protect the Company against any actual or
threatened breach of the provisions of Section 6 by Officer. Accordingly,
without prejudice to any other rights or remedies otherwise available to the
Company, Officer agrees that the Company shall have the right to equitable and
injunctive relief to prevent any breach of the provisions of Section 6, as well
as to such damages or other relief as may be available to the Company by reason
of any such breach as does occur.
(d) At-Will Employment. Officer acknowledges that his
employment with the Company is strictly "at-will", and that nothing contained in
this Agreement shall confer upon Officer the right to continue in the employ of
the Company, or interfere in any way with the rights of the Company to terminate
his employment at any time for any reason. Officer further acknowledges that
this Agreement is not an "employment agreement" or "employment contract"
(written or otherwise), as either term is used or defined in, or contemplated by
or under, (i) the Company's Long-Term Incentive Plan, (ii) any other plan or
agreement to which the Company is a party, or (iii) applicable statutory, common
or case law.
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(e) Breach Not a Defense. The representations and covenants on
the part of Officer contained in Section 6 shall be construed as ancillary to
and independent of any other provision of this Agreement, and the existence of
any claim or cause of action of Officer against the Company or any officer,
director, stockholder or representative of the Company, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of the covenants on the part of Officer contained in Section 6.
(f) Notices. Any notice or other communication called for by
the terms of this Agreement shall be in writing and either delivered personally
or by registered or certified mail (postage prepaid and return receipt
requested) and shall be deemed given when received at the following addresses
(or at such other address for a party as shall be specified by like notice):
(1) If to Parent or the Company, 5205 North O'Connor Boulevard,
Suite 900, Irving, Texas 75039, Attention: General Counsel.
(2) If to Officer, the address of Officer set forth below Officer's
signature on the signature page of this Agreement.
(g) Assumption by Successor of Parent. Parent shall require
any successor (whether direct or indirect) to all or substantially all of the
business or assets of Parent (whether by purchase of securities, merger,
consolidation, sale of assets or otherwise), to expressly assume and agree to
perform the obligations to be performed by Parent or the Company under this
Agreement in the same manner and to the same extent that Parent or the Company
would be required to perform if no such succession had taken place.
(h) Assignment.
(1) Except pursuant to an assumption by a successor
described in subsection (g) of this Section, the rights and obligations
of the Company pursuant to this Agreement may not be assigned, in whole
or in part, by the Company to any other person or entity without the
express written consent of Officer.
(2) The rights and obligations of Officer pursuant to
this Agreement may not be assigned, in whole or in part, by Officer to
any other person or entity without the express written consent of the
Board.
(i) Successors. This Agreement shall be binding on, and shall
inure to the benefit of, the Company, Officer and their respective successors,
permitted assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees and legatees, as applicable.
(j) Amendments and Waivers. Except as hereinafter provided, no
provision of this Agreement may be amended or otherwise modified, and no right
of any party to this Agreement may be waived, unless such amendment,
modification or waiver is agreed to in a written instrument signed by Officer,
Parent and Company. Unless a Change of Control shall have occurred or be pending
or contemplated, Parent and Company may amend, modify, or waive any provision
of, or terminate, this Agreement upon sixty (60) days notice without the consent
of Officer; provided that any such amendment, modification, waiver or
termination shall be made to all severance agreements of the Company covering
all officers of the Company similarly situated to Officer. No waiver by either
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by the other party hereto shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
(k) Complete Agreement. This Agreement replaces and supersedes
all prior agreements, if any, among the parties with respect to the subject
matter hereof, and the provisions of this Agreement constitute the complete
understanding and agreement among the parties with respect to the subject matter
hereof, and no agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
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(l) Governing Law. THIS AGREEMENT IS BEING MADE AND EXECUTED
IN, AND IS INTENDED TO BE PERFORMED IN, THE STATE OF TEXAS AND SHALL BE
GOVERNED, CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE
LAWS OF THE STATE OF TEXAS.
(m) Attorney Fees. All legal fees and other costs incurred by
Officer in connection with the resolution of any dispute or controversy under or
in connection with this Agreement shall be reimbursed by the Company to Officer,
if such dispute or controversy is resolved in favor of Officer. The Company
shall be responsible for, and shall pay, all legal fees and other costs incurred
by the Company in connection with the resolution of any dispute or controversy
under or in connection with this Agreement, regardless of whether such dispute
or controversy is resolved in favor of the Company or Officer.
(n) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same agreement.
(o) Construction. The captions of the Sections, subsections
and paragraphs of this Agreement have been inserted as a matter of convenience
of reference only and shall not affect the meaning or construction of any of the
terms or provisions of this Agreement. Unless otherwise specified, references in
this Agreement to a "Section," "subsection," "paragraph," "subparagraph" or
"Schedule" shall be considered to be references to the appropriate Section,
subsection, paragraph, subparagraph or Schedule, respectively, of this
Agreement. Unless the context otherwise requires, all words used in this
Agreement in any gender shall include the masculine, feminine and neuter gender,
all singular words shall include the plural and all plural words shall include
the singular. As used in this Agreement, the term "including" shall mean
"including, but not limited to."
(p) Validity and Severability. If any term or provision of
this Agreement is held to be illegal, invalid or unenforceable under the present
or future laws effective during the term of this Agreement, (1) such term or
provision shall be fully severable, (2) this Agreement shall be construed and
enforced as if such term or provision had never comprised a part of this
Agreement and (3) the remaining terms and provisions of this Agreement shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable term or provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable term
or provision, there shall be added automatically as a part of this Agreement, a
term or provision as similar to such illegal, invalid or unenforceable term or
provision as may be possible and be legal, valid and enforceable.
(q) Execution by Parent and Company. The execution of this
Agreement by Parent and Company shall constitute an acceptance of, and an
agreement to be bound by, the terms and provisions of this Agreement by Company
and each of its direct and indirect wholly-owned subsidiaries, and Parent and
Company hereby agree to cause each of its direct and indirect wholly-owned
subsidiaries, now and in the future, to fully comply with all obligations
applicable to the Company pursuant to the terms of this Agreement.
(SIGNATURE PAGE ATTACHED)
/s/ TAD
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initials
-9-
In witness whereof, the parties have executed this Agreement effective as
of the date first written above.
PIONEER NATURAL RESOURCES COMPANY
By: /s/ Timothy L. Dove
--------------------------------
Name: Timothy L. Dove
Title: President and Chief Operating Officer
PIONEER INTERNATIONAL RESOURCES COMPANY
By: /s/ Timothy L. Dove
---------------------------------
Name: Timothy L. Dove
Title: President
PIONEER INTERNATIONAL RESOURCES COMPANY
/s/ Timothy L. Dove
By:----------------------------------
Name: Timothy L. Dove
Title: Executive Vice President
OFFICER:
/s/ Todd A. Dillabough
------------------------------------
Todd A. Dillabough
Address:
------------------------------------
------------------------------------
/s/ TAD
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initials
-10-
SCHEDULE A
GENERAL RELEASE AGREEMENT
NOTICE: Various state and federal laws and regulations prohibit employment
discrimination based on age, race, color, religion, sex, national origin,
disability, citizenship, and membership or application for membership in a
uniformed service. These laws are enforced through the Equal Employment
Opportunity Commission, U.S. Department of Labor, Texas Commission on Human
Rights, and other federal and state agencies. You are advised to discuss this
release with your attorney. In any event, you should thoroughly review and
understand the effect of this document before signing it. Therefore, please take
this General Release Agreement home and carefully consider it for at least five
days before signing it. In accordance with the requirements of the Older Workers
Benefit Protection Act, if applicable, you are allowed at least 45 days from the
date of your receipt of this document and the accompanying explanatory letter to
consider the offer made to you and to return an executed copy of this form to
the Vice President Administration. Additionally, after you have executed this
form, you have seven days to reconsider and revoke your agreement.
GENERAL RELEASE: In consideration of my acceptance of the payments and benefits
offered to me under Section 5(d)(2) of the Severance Agreement, I hereby release
and discharge Pioneer Natural Resources Company and its subsidiaries and
affiliates (the "Company"), and the officers, directors, employees, agents,
successors, and assigns of such entities (collectively the "Released Parties")
from any and all claims, liabilities, demands, and causes of action, known or
unknown, fixed or contingent, which I have or claim against them as a result of
the termination of my employment, including but not limited to claims arising
under federal, state, or local laws prohibiting employment discrimination,
including the Age Discrimination in Employment Act, or claims growing out of any
legal restrictions, contractual or otherwise, on the Company's right to
terminate the employment of its employees, and I do hereby agree not to file a
lawsuit to assert such claims. I further acknowledge and agree that by accepting
the Severance Agreement benefits, I have given up my right to file any
complaint, lawsuit, or other legal action against any of the Released Parties
growing out of, connected with, or relating in any way to the termination of my
employment with the Company. Further in consideration of the payments and
benefits offered to me under the Severance Agreement, I acknowledge and agree
that the Released Parties may recover from me any loss, including attorney's
fees and costs of defending against any claim brought by me, that they may
suffer arising out of my breach of this General Release Agreement.
I understand that this General Release Agreement is final and binding, and
I agree not to challenge its enforceability. If I do challenge the
enforceability of this General Release Agreement, I agree initially to tender to
the Company all money received pursuant to the Severance Agreement, and invite
the Company to retain such money and agree with me to cancel this General
Release Agreement. In the event the Company accepts this offer, the Company
shall retain such money and this General Release Agreement will be void. In the
event the Company does not accept such offer, the Company shall so notify me,
and shall place such money in an interest-bearing escrow account pending the
resolution of any dispute as to whether this General Release Agreement shall be
set aside and/or otherwise be rendered unenforceable.
I acknowledge and agree that the Company has no legal obligation to provide
the payment under Section 5(d)(2)(C) of the Severance Agreement offered to me,
and my acceptance of the obligations and attendant additional payment as
described therein constitutes my agreement to all terms and conditions set forth
in this General Release Agreement, and are in consideration of the promises and
undertakings of the Company pursuant to the Severance Agreement. I further
acknowledge and agree that for unemployment compensation purposes, the payments
I receive under the Severance Agreement shall be considered additional wages in
lieu of notice; and that, accordingly, I may be ineligible to receive
unemployment compensation benefits for an equivalent period of time.
This General Release Agreement does not have any effect on any claim I may
have against the Released Parties unrelated to the termination of my employment
or with respect to any rights or claims that may arise after the date this
General Release Agreement is executed.
I have carefully read and fully understand all of the provisions of this
General Release. I further acknowledge that entering into this General Release
Agreement is knowing and voluntary on my part, that I have had a reasonable time
to deliberate regarding its terms, and that I have had the right to consult with
an attorney if I so desired.
I acknowledge that I initially executed a General Release Agreement,
containing the same terms and conditions as this General Release Agreement, more
than seven days prior to the date appearing below and placed the General Release
Agreement in the mail addressed to the Company. I further acknowledge that I
have had at least seven days since the date of execution of the originally
executed General Release Agreement in which to reconsider and revoke my
agreement to the terms and conditions set forth in this General Release
Agreement.
Date signed:
-------------------- ------------------------------------
Signature of Officer
Date signed:
-------------------- -----------------------------------
Signature of Officer