ex10_40.htm


    
      
        

      
Exhibit 10.40


       

      ROSETTA
RESOURCES, INC. EXECUTIVE CHANGE-IN-CONTROL PLAN

       

      This Rosetta Resources, Inc. Executive
Change-in-Control Plan (the “Plan”), is effective as of
July 1, 2008 (the “Effective
Date”).

       

      WHEREAS, Rosetta Resources, Inc. (the
“Employer”), wishes to
employ certain individuals in executive level positions;

       

      WHEREAS, it is the intent
of the Employer that the Plan shall constitute an unfunded severance
plan, and to the extent applicable, an unfunded nonqualified deferred
compensation arrangement; and

       

      WHEREAS, in order to retain the
services of such individuals, the Employer desires to provide certain severance
benefits as provided herein;

       

      NOW, THEREFORE, the Employer hereby
establishes the Plan as follows:

       

      ARTICLE
I


       

      DEFINITIONS.

       

      As used
in this Plan, the following terms have the following meanings:

       

      (a)           “Affiliate” means, with
respect to any entity, any other corporation, organization, association,
partnership, sole proprietorship or other type of entity, whether incorporated
or unincorporated, directly or indirectly controlling or controlled by or under
direct or indirect common control with such entity.

       

      (b)           “Base Salary” means the amount
of Executive’s regular annual salary, paid periodically and not based on
performance, as reflected in the Employer’s payroll records.

       

      (c)           “Board” means the Board of
Directors of the Employer.

       

      (d)           “Cause” means a finding by the
Committee of acts or omissions while employed by the Employer, constituting, in
the Committee’s sole discretion, (i) a breach of duty by Executive in the course
of Executive’s employment involving fraud, acts of dishonesty (other than
inadvertent acts or omissions), disloyalty to Employer or its Affiliates, or
moral turpitude constituting criminal felony; (ii) conduct by Executive that is
materially detrimental to Employer, monetarily or otherwise, or reflects
unfavorably on Employer or Executive to such an extent that Employer’s best
interests reasonably require the termination of Executive’s employment;
(iii)  Executive’s failure to comply with or enforce Employer’s
policies concerning equal employment opportunity, including engaging in sexually
or otherwise harassing conduct; (iv) Executive’s repeated insubordination; (v)
Executive’s failure to comply with or enforce, in any material respect, all
other personnel policies of Employer or its Affiliates; (vi) Executive’s failure
to devote Executive’s full working time and best efforts to the performance of
Executive’s responsibilities
to Employer or its Affiliates; (vii) Executive’s conviction of, or entry of a
plea agreement or consent decree or similar arrangement with respect to a felony
or any violation of federal or state securities laws; or (viii) Executive’s
failure to cooperate with any investigation or inquiry authorized by the
Committee or conducted by a governmental authority related to the business or
Executive’s conduct.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (e)           “Change in Control” means a
Corporate Change in which (i) individuals who were directors of Employer
immediately prior to a Control Transaction shall cease, within two years of such
Control Transaction to constitute a majority of the Board of Directors of
Employer (or of the Board of Directors of any successor to Employer or to a
company which has acquired all or substantially all its assets) other than by
reason of an increase in the size of the membership of the applicable Board that
is approved by at least a majority of the individuals who were directors of
Employer immediately prior to such Control Transaction or (ii) any entity,
person or Group acquires shares of Employer in a transaction or series of
transactions that result in such entity, person or Group directly or indirectly
owning beneficially 50% or more of the outstanding shares of Common
Stock.

       

      (f)           “Code” means the Internal
Revenue Code of 1986, as amended.

       

      (g)           “Committee” means the
Compensation Committee of the Board of Directors.

       

      (h)           “Corporate Change” means (i)
the dissolution or liquidation of Employer; (ii) a reorganization, merger or
consolidation of Employer with one or more corporations (other than a merger or
consolidation effecting a reincorporation of Employer in another state or any
other merger or consolidation in which the shareholders of the surviving
corporation and their proportionate interests therein immediately after the
merger or consolidation are substantially identical to the shareholders of
Employer and their proportionate interests therein immediately prior to the
merger or consolidation) (collectively, a “Corporate Change Merger”); (iii) the
sale of all or substantially all of the assets of Employer or an affiliate as
defined in the Rosetta Resources Inc. 2005  Long-Term Incentive Plan;
or (iv) the occurrence of a Change in Control.

       

      (i)         
  “Control Transaction” means (i)
any tender offer for or acquisition of capital stock of Employer pursuant to
which any person, entity, or Group directly or indirectly acquires beneficial
ownership of 20% or more of the outstanding shares of Common Stock; (ii) any
Corporate Change Merger of Employer; (iii) any contested election of directors
of Employer; or (iv) any combination of the foregoing, any one of which results
in a change in voting power sufficient to elect a majority of the Board of
Directors of Employer.

       

      (j)     
      “Covered Termination” means:
(1) the termination of an Executive’s employment with the Employer for any
reason other than death, Inability to Perform, or for Cause; or (2) the
resignation of the Executive from such employment with Good Reason.

       

      (k)           “Eligible Executive” means an
Executive who has experienced a Covered Termination.

       

      (l)     
      “Employment Termination Date”
means the effective date of termination of Executive’s employment
pursuant to Employer policies and applicable law.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      (m)           “Executive” means an
individual employed by the Employer in the position of Vice President or higher,
who has been designated by the Committee to be eligible to participate in the
Plan, or who
has accepted a written offer of employment which includes eligibility for
participation in this Plan, and who commences employment in such position and
capacity as a full-time employee of the Employer.   A list of all
individuals designated as Executives at any given time shall be appended as
Appendix A to the Plan.  Once designated on Appendix A as an Executive
under the Plan, such Executive shall remain so designated and shall continue to
be an Executive hereunder until the earliest to occur of (i) the date on which
such Executive is removed from Appendix A by action of the Committee or by the
Board, (ii) such Executive’s termination of employment for any reason, or (iii)
the death of the Executive.

       

      (n)           “Good Reason” means any of the
following actions if taken without Executive’s prior written consent: (i)
following the designation of an Executive by the Compensation Committee on
Appendix A to the Plan, any reduction of the multiple or percentage applicable
to an Executive, or removal of Executive, through a subsequent amendment to
Appendix A to the Plan, (ii) a material diminution in Executive’s base
compensation; or (iii) any permanent relocation of Executive’s place of business
to a location 50 miles or more from the then-current location, provided such
relocation is a material change in geographic location at which Executive must
provide substantial services for purposes of Section 409A.  Neither a
transfer of employment among Employer and any of its Affiliates, a change in the
co-employment relationship, nor a mere change in job title constitutes “Good
Reason.”  To exercise the right
hereunder to terminate for Good Reason, Executive must provide Notice of
Termination to Employer of his belief that Good Reason exists within 60 days of
the initial existence of the Good Reason condition, and that notice shall
describe the condition(s) believed to constitute Good
Reason.  Employer shall have 30 days to remedy the Good Reason
condition(s).  If not remedied within that 30-day period, Executive may submit a
Notice of Termination; provided, however, that the Notice of Termination
invoking Executive’s right to terminate his employment for Good Reason must be
given no later than 100 days after the date the Good Reason condition first
arose; otherwise, Executive is deemed to have accepted the condition(s), or the
Employer’s correction of such condition(s), that may have given rise to the
existence of Good Reason.

       

      (o)           “Group” means persons who act
“in concert” as described in Sections 13(d)(3) and/or 14(d)(2) of the Securities
Exchange Act of 1934, as amended.

       

      (p)           “Inability to Perform” means
and shall be deemed to have occurred if Executive has been determined under
Employer’s long-term disability plan to be eligible for long-term disability
benefits.  In the absence of Executive’s participation in, application
for benefits under, or existence of such a plan, “Inability to Perform” means a
finding by the Committee in its sole discretion that Executive is, despite any
reasonable accommodation required by law, unable to perform the essential
functions of Executive’s position because of an illness or injury for
(i) 60% or more of the normal working days during six consecutive calendar
months or (ii) 40% or more of the normal working days during twelve consecutive
calendar months.

       

      (q)           “Notice of Termination” means
a written notice that shall (i) indicate the specific termination provision in
this Plan relied upon; (ii) in the case of a termination for Inability to
Perform, Cause, or Good Reason, set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive’s
employment under the provision invoked;
and (iii) if the termination is by Executive for Good Reason, or by Employer for
any reason, specify the Employment Termination Date.  The failure by
Employer or Executive to set forth in the Notice of Termination any fact or
circumstance that contributes to a showing of Cause or Good Reason shall not
waive any right of Employer or Executive or preclude either of them from
asserting such fact or circumstance in connection with a claim or appeal for
benefits under this Plan.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (r)      
     “Section 409A” means Section
409A of the Code and the regulations promulgated thereunder, and any other
applicable Treasury guidance, as in effect at the time any payment or other
action is to be taken under this Plan.

       

      (s)           “Separation Agreement” means a
general release agreement in a form acceptable to Employer which is not revoked
by Eligible Executive prior to the date it becomes effective.

       

      ARTICLE
II


       

      EMPLOYMENT.

       

      Executives
under this Plan shall be employed on an at-will basis, to the maximum extent
permitted by applicable law.  This Plan shall not, and shall not be
construed or interpreted as, creating a contract of employment with any
person.

       

      ARTICLE
III


       

      COMPENSATION
UPON TERMINATION OF EMPLOYMENT

       

      (a)           Termination of Employment
for Any Reason.  If Executive’s employment is terminated,
Employer shall pay to Executive (or in the case of death of Executive, to such
person as Executive shall designate in a written notice to Employer or, if no
such person is designated, to Executive’s estate) any unpaid portion of
Executive’s Base Salary through the Employment Termination Date, any earned but
unused vacation according to Employer’s policies then in effect, and any
unreimbursed business expenses, at the time and in the manner required by
applicable law, but in no event later than March 15 of the year following the
year of the Executive’s death or termination of employment.

       

      (b)           Termination Following
Corporate Change.

       

      (1)           If,
within the two-year period following a Corporate Change, Executive’s employment
with Employer or an Affiliate or successor of Employer is terminated due to a
Covered Termination, Executive will be paid the payments described in Section
(a) of Article III of this Plan.  In addition, if, within 21 or 45
days after the Employment Termination Date, as applicable, Executive has signed
a Separation Agreement and Executive does not revoke such Separation Agreement,
in lieu of any payments under Section (b) of Article III of the Rosetta
Resources Inc. Executive Severance Plan, Eligible Executive shall be entitled to
receive the following amounts:

       

      (A)           The
designated percentage or multiple, as set forth in Appendix A to the Plan as of
the Employment Termination Date of such Executive, multiplied
times the Eligible Executive’s Base Salary in effect on the Employment
Termination Date;


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (B)           The
designated percentage or multiple, as set forth in Appendix A to the Plan as of
the Employment Termination Date of such Executive, multiplied times the
Executive’s target performance bonus percentage for one year, utilizing the
greater of (i) the target performance bonus percentage for the performance
period in effect on the Employment Termination Date, or (ii) the target
performance bonus percentage for the performance period in effect on the day
preceding the date of the Corporate Change;

       

      (C)           Full
and immediate vesting of all Employer stock options and restricted stock awards
held by Eligible Executive as of the Employment Termination Date;

       

      (D)           With
respect to Employer stock options that are vested as of the Employment
Termination Date, Executive may exercise those options according to the terms of
the Rosetta Resources Inc. 2005 Long-Term Incentive Plan.

       

      (2)           The
additional payments provided for in Sections (a) and (b) of this Article III
shall be paid in a single lump-sum payment no later than 60 days after the
Employment Termination Date, but in no event shall such single lump sum payment
be paid later than the March 15 of the year following the year in which the
Executive’s Termination of Employment occurs.

       

      (3)           In
the event that it is determined that any payment (other than the Gross-Up
Payment provided for in this Section (b)(3) of this Article III) or distribution
by Employer or any of its Affiliates to or for the benefit of Executive, whether
paid or payable or distributed or distributable pursuant to the terms of this
Plan or otherwise pursuant to or by reason of any other agreement, policy, plan,
program or arrangement, including without limitation any stock option or similar
right, or the lapse or termination of any restriction on or the vesting or
exercisability of any of the foregoing (a “Payment”), would be subject to
the excise tax imposed by Section 4999 of the Code (or any successor
provision thereto) by reason of being considered “contingent on a change in
ownership or control” of Employer, within the meaning of Section 280G of
the Code or any successor provision thereto (such tax being hereafter referred
to as the “Excise Tax”),
then Executive will be entitled to receive an additional payment or payments (a
“Gross-Up
Payment”).  The Gross-Up Payment will be in an amount such
that, after payment by Executive of all taxes, including any Excise Tax imposed
upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payment.  For purposes of
determining the amount of the Gross-Up Payment, Executive will be considered to
pay (x) federal income taxes at the highest rate in effect in the year in
which the Gross-Up Payment will be made and (y) state and local income
taxes at the highest rate in effect in the state or locality in which the
Gross-Up Payment would be subject to state or local tax, net of the maximum
reduction in federal income tax that could be obtained from deduction of such
state and local taxes.  The determination of whether an Excise Tax
would be imposed, the amount of such Excise Tax, and
the calculation of the amounts referred to in this Section (a)(3) of this
Article III will be made at the expense of Employer by Employer’s regular
independent accounting firm (the “Accounting Firm”), which shall
provide detailed supporting calculations.  Any determination by the
Accounting Firm will be binding upon Employer and Executive.  The
Gross-Up Payment will be paid to Executive as soon as administratively
practicable following, but no later than the end of the calendar year in which
falls the date on which Executive remits the related taxes, but in no event
later than December 31 of the second year following the year in which the
Executive’s termination of employment occurs.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (c)           COBRA
Reimbursement.  In addition, if Executive’s employment with
Employer or an Affiliate or successor of Employer is terminated or ends under
the circumstances set forth in Section (b) of this Article III, and if Executive
has signed a Separation Agreement and does not revoke such Separation Agreement
as provided therein, Executive will receive, in addition to any other payments
due under this Plan, the following benefit: if, at the time of the Employment
Termination Date, Executive participates in one or more group health plans
offered or made available by Employer and Executive is eligible for and elects
to receive continued coverage under such plans in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or any successor law,
Employer will reimburse Executive during the 12-month period following the
Employment Termination Date, for the difference between the total amount of the
monthly COBRA premiums for the same coverage as in effect on the Employment
Termination Date, that are actually paid by Executive for such continued health
plan benefits and the total monthly amount of the same premiums charged to
active senior executives of Employer for health insurance
coverage.  Such reimbursement shall be made within the 90-day period
following Executive’s payment of each monthly COBRA
premium.  Provided, however, that Employer’s reimbursement obligation
under this Section (c) shall terminate upon the earlier of (i) the expiration of
the time period described above or (ii) the date Executive becomes eligible for
health insurance coverage under a subsequent employer’s group health plan
without being subject to any preexisting-condition exclusion under that plan,
which occurrence Executive shall promptly report to Employer.

       

      (d)           Exclusive Compensation and
Benefits.  The compensation and benefits described in this
Article, along with the associated terms for payment, constitute all of
Employer’s obligations to Executive with respect to the termination of
Executive’s employment with Employer and/or its Affiliates. However, nothing in
this Plan is intended to limit any earned, vested benefits that Executive may
have under the applicable provisions of any benefit plan of Employer in which
Executive is participating at the time of the termination of
employment.

       

      (e)           Compliance
with Section 409A.  It is
the intent of this Plan to comply with the requirements of Section 409A so
that none of the payments and benefits to be provided hereunder will be subject
to the income recognition, additional tax and interest imposed under
Section 409A, and any ambiguities herein will be interpreted to so comply.
Employer shall not be liable to Executive for any adverse tax consequences
imposed upon Executive as a result of Section 409A.  Payments under
the Plan shall be made only on the date or dates provided herein, and no
acceleration or deferral of any such payments shall be made either by the
Employer or at the request of the Executive.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      (f)        
   Specified Employee
Determination and Payment.  If Employer determines that Section
409A applies to payments to an Executive under this Plan, and such Executive is
a “specified employee” on the date of Executive’s “separation from service,” as
those terms are defined in and pursuant to Section 409A, then, notwithstanding
any provision of this Plan to the contrary, no payment of compensation under
this Plan which has been determined to be a payment of “deferred compensation”
within the meaning of Section 409A shall be made to Executive during the period
lasting six months from the date of Executive’s separation from service unless
Employer determines that there is no reasonable basis for believing that making
such payment would cause Executive to suffer adverse tax consequences pursuant
to Section 409A.  If any payment to Executive is delayed pursuant to
the foregoing sentence, such payment instead shall be paid, without interest, on
the first business day following the expiration of the six-month period referred
to in the prior sentence.

       

      (g)           Payment after Executive’s
Death.  In the event of Executive’s death after Executive
becomes entitled to a payment or payments pursuant to this Article III, any
remaining unpaid amounts shall be paid, at the time and in
the manner such payments otherwise would have been paid to Executive, to such person as Executive
shall designate in a written notice to Employer (or, if no such person is
designated, to Executive’s estate).  Notwithstanding anything
herein to the contrary, an Executive who has been determined to be a “specified
employee” who dies following such Executive’s “separation from service”, as
provided in Section 409A, but prior to the six (6) month anniversary of the
date of Executive’s “separation from service,” then any amounts payable under
this Plan which are determined by the Employer to be subject to Section 409A,
payment of which is delayed in accordance with this Article III, will be payable
in a lump sum as soon as administratively practicable after the date of
Executive’s death and all other amounts payable under this Plan will be payable
in accordance with the payment schedule applicable to each payment or
benefit.

       

      (h)           Offset.  To
the maximum extent permitted by applicable law, Employer may set off against,
and Executive authorizes Employer to deduct from, any payments due to the
Executive, or to Executive’s heirs, legal representatives, or successors, as a
result of the termination of the Executive’s employment any amounts which may be
due and owing to Employer or any of its Affiliates by the Executive, whether
arising under this Plan or otherwise; provided, however, that any such set off
and deduction shall be made in a manner that complies with Section 409A and
other laws, to the extent applicable.

       

      ARTICLE
IV


       

      NO
OBLIGATION TO PAY.

       

      With
regard to any payment due to Executive under this Plan, to the maximum extent
permitted by applicable law, it shall not be a breach of any provision of this
Plan for Employer to fail to make such payment to Executive if (i) Employer is
legally prohibited from making the payment; (ii) Employer would be legally
obligated to recover the payment if it was made; or (iii) Executive would be
legally obligated to repay the payment if it was made.

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      ARTICLE
V

       

      DEDUCTIONS
AND WITHHOLDINGS

       

      With
respect to any payment to be made to the Executive, Employer shall deduct, where
applicable, any amounts authorized by Employee, and shall withhold and report
all amounts required to be withheld and reported by applicable law.

       

      ARTICLE
VI


       

      NOTICES.

       

      (a)           All
notices, requests, demands, and other communications required or permitted to be
given or made by either party shall be in writing and shall be deemed to have
been duly given or made (1) when delivered personally, or (2) when deposited in
the United States mail, first class registered or certified mail, postage
prepaid, return receipt requested, to the party for which intended at the
following addresses (or at such other addresses as shall be specified by the
parties by like notice, except that notices of change of address shall be
effective only upon receipt):

       

      (b)            If
to Employer, at:

       

      Rosetta Resources Inc.

      Attn: General Counsel

      717
Texas, Suite 2800

      Houston,
Texas 77002

       

      (c)     
      If to Executive, at Executive’s then-current
home address on file with Employer.

       

      ARTICLE
VII


       

      MITIGATION.

       

      Executive
shall not be required to mitigate the amount of any payment provided for in this
Plan by seeking other employment or otherwise, nor shall the amount of any
payment provided for in this Plan be reduced by any compensation earned by
Executive as the result of employment by another employer after the date of
termination of Executive’s employment with Employer, or otherwise.

       

      ARTICLE
VIII


       

      BENEFITS
UNASSIGNABLE.

       

      Executive
shall not have any right to pledge, hypothecate, anticipate, or in any way
create a lien upon any payments or other benefits provided under this Plan; and
no benefits payable under this Plan shall be assignable in anticipation of
payment either by voluntary or involuntary acts, or by operation of law, except
by will or pursuant to the laws of descent and distribution.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      ARTICLE
IX

       

      AMENDMENT
AND TERMINATION.

       

      The
Employer may amend or terminate this Plan at any time by action of the Board,
subject to the rights of any Eligible Executive who has incurred a Covered
Termination as of the date of such amendment or termination.

       

      ARTICLE
X


       

      GOVERNING
LAW; VENUE.

       

      This Plan
shall be governed by the laws of the State of Texas except for its laws with
respect to conflict of laws, and except to the extent preempted by any federal
law.  The exclusive forum for any lawsuit arising from or related to
Executive’s employment or this Plan shall be a state or federal court in Harris
County, Texas.  To the extent this Plan is governed by federal law,
nothing herein shall prevent or prohibit Employer from removing to an
appropriate federal court any action brought in state court.

       

      ARTICLE
XI


       

      ADMINISTRATION,
CLAIMS, APPEALS, EXHAUSTION REQUIREMENT.

       

      (a)           Plan
Administrator.  The overall responsibility for the
administration and control of this Plan resides with the Committee.

       

      (b)           Powers.  The
Committee has the following authority with respect to the Plan:

       

      (1)           The
responsibility for the day to day administration and operation of the
Plan;

       

      (2)           The
authority to issue and implement such rules as the Committee deems appropriate
to administer the Plan;

       

      (3)           The
authority to interpret the Plan’s provisions, and to make factual determinations
under the Plan, including but not limited to, the power to determine eligibility
for payments hereunder, and the right to resolve and determine ambiguities,
inconsistencies, and omissions in the provisions hereof;

       

      (4)           The
authority to appoint or designate such person or persons as the Committee deems
necessary or advisable to carry out the administrative duties
hereunder.

       

      (c)           Claims.   The
Committee shall have the power and authority to determine claims for payments
under the Plan, and shall make all factual determinations under the Plan in
relation to any claim, or as otherwise required in this Plan.  Except
as otherwise provided herein, the Executive (“claimant”) may make a claim
for payment hereunder, or a claim contesting a factual determination hereunder,
within 30 days of receipt of notice of such factual determination, or of any
event giving rise to the existence of a right of payment under this
Plan.  The Committee shall make a determination on a claim hereunder
within 30 days of the receipt of a claim for payments under this Plan, and the
claimant shall have the right to submit documentation or other evidence to the
Committee in support of such claim.  The Committee may, by written
notice to the claimant within the original 30 day claim period, have an
additional 30 days in which to make a decision on the initial
claim.  If the Committee does not provide a notice of extension or a
decision on the initial claim within the time limits provided in this Article,
the claim will be deemed denied for purposes of this Article.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      (d)           Appeal of Denied
Claim.  If a claim under Section (c) of this Article is denied
or deemed denied, the claimant may file a written appeal with the full
Board.  The claimant shall have the right to submit any additional
documentation or other evidence to the Board in support of such
appeal.  The Board shall make its decision and provide notice thereof
in writing to the claimant within 30 days of the receipt of the
appeal.  Provided, however, the Board may, by written notice to the
claimant within the original 30 day appeal  period, have an additional
30 days  in which to make a decision on the initial
appeal.  If the Board does not provide a notice of extension or a
decision on the initial appeal within the time limits provided in this Article,
the claim will be deemed denied for purposes of this Article.

       

      (e)           Contents of Notice of Denied
Claim or Appeal.   Notice of any denied claim or appeal
provided by the Committee or the Board, as appropriate, shall be in writing, and
shall contain the following, at a minimum:

       

      (1)           The
facts determined, claim determination made or decision on appeal (herein, the
“determination”);

       

      (2)           A
summary of the facts on which the determination was based;

       

      (3)           The
relevant provisions of this Plan on which the determination was
based;

       

      (4)           If
appropriate, a description of any information or documentation required to
complete the claimant’s claim; and

       

      (5)           A
description of the claimant’s appeal rights, if any.

       

      (f)       
    Exhaustion of Administrative
Remedy Required.  Executive may not bring a proceeding in any
court under this Plan, or intended to enforce any provision of this Plan,
without first having exhausted the administrative remedies provided
herein.

       

      (g)           Limitation of
Actions.   No action may be brought to enforce any
provision of this Plan after twelve (12) months following the denial of the
later of: (i) the claimant’s claim under Section (c) of this Article XI, or (ii)
the denial of the appeal provided for in Section (d) of this Article
XI.

       

      ARTICLE
XII


       

      TREATMENT
OF PLAN UNDER ERISA.

       

      Is the
intent of the Employer, and this Plan shall be interpreted, construed and
operated such that, this Plan shall be a “top-hat” plan exempt from certain
provisions of ERISA, as provided in and within the meaning of Sections 201(2),
301(a)(3), and 401(a)(1) of ERISA, as appropriate.  Benefits under
this Plan shall be paid solely out of the general assets of the Employer and
shall constitute an unsecured obligation of the Employer.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      IN
WITNESS WHEREOF, Employer has caused this Plan to be executed on its behalf by
its duly authorized officer, and such duly authorized officer has executed this
Plan, effective as of the Effective Date first set forth above.

       

      
        
          
            
              
                
                  
                    
                      
                        	EMPLOYER	 
	 	 
      	 
	ROSETTA
      RESOURCES INC.	 
	 	 
      	 
	 	
                                 
      

                              	 
	By:	 	
                                 

                              	 
	 	 
      	 
	RANDY
      L. LIMBACHER	 
	PRESIDENT
      & CHIEF EXECUTIVE OFFICER