exv10wxny






Exhibit 10(n)




DENBURY RESOURCES

SEVERANCE PROTECTION PLAN

(As amended and restated effective December 30, 2008)




ARTICLE I

ESTABLISHMENT OF PLAN




     As of the Effective Date, Denbury Resources Inc. (the “Company”) hereby establishes a
severance compensation plan known as the Denbury Resources Severance Protection Plan (the “Plan”),
as set forth in this document. For purposes of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), the Company intends the Plan to be a “Severance Plan” within the
meaning of the applicable ERISA regulations.



ARTICLE II

DEFINITIONS




     As used herein, the following words and phrases shall have the following respective meanings
unless the context clearly indicates otherwise.



     Section 2.1 Administrator. The Board or any committee thereof as may be appointed
from time to time by the Board to supervise the administration of the Plan.



     Section 2.2 Affiliate. With respect to a specified person, a person that directly
or indirectly through one or more intermediaries, controls, is controlled by, or is under common
control with the specified person.



     Section 2.3 Base Salary. The amount a Participant is entitled to receive as wages
or salary on an annualized basis, calculated on the basis of their salary rate on either the date
immediately prior to a Change in Control or their Termination Date, whichever amount is higher.



     Section 2.4 Board. The Board of Directors of the Company.



     Section 2.5 Bonus Amount. An amount equal to fifty percent (50%) of the total
amount of bonuses awarded to the Participant during the twenty-four months prior to the date of the
Change in Control.



     Section 2.6 Cause. An Employer shall have “Cause” to terminate a Participant if the Participant
(i) willfully and continually fails to substantially perform his duties with the Employer (other
than a failure resulting from the Participant’s incapacity due to physical or mental illness) which
failure continues for a period of at least thirty (30) days after a written notice of demand for
substantial performance has been delivered to the Participant specifying the manner in which the
Participant has failed to substantially perform, or (ii) willfully engages in conduct which is
demonstrably and materially
injurious to the Employer, monetarily or

















 







otherwise; provided, however, that no termination of the Participant’s employment shall be for
Cause until there shall have been delivered to the Participant a copy of a written notice
specifying in detail the particulars of the Participant’s conduct which violates either (i) or (ii)
above. No act, nor failure to act, on the Participant’s part, shall be considered “willful” unless
he has acted or failed to act with an absence of good faith and without a reasonable belief that
his action or failure to act was in the best interest of the Employer. Notwithstanding anything
contained in this Plan to the contrary, no failure to perform by the Participant after Notice of
Termination is given by or to the Participant shall constitute Cause.



     Section 2.7 Change in Control. A “Change in Control” shall mean any one of the following:




     (a) “Continuing Directors” no longer constitute a majority of the Board; the term
“Continuing Director” means any individual who has served in such capacity for one year or
more, together with any new directors whose election by such Board or whose nomination for
election by the stockholders of the Company was approved by a vote of a majority of the
Directors of the Company then still in office who were either directors at the beginning of
such one-year period or whose election or nomination for election was previously so
approved;




     (b) after the date of adoption of the severance plan, any person or group of persons
acting together as an entity (other than the Texas Pacific Group and its Affiliates) become
(i) the beneficial owners (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended) directly or indirectly, of shares of common stock representing thirty
percent (30%) or more of the voting power of the Company’s then outstanding securities
entitled generally to vote for the election of the Company’s directors, and (ii) the largest
beneficial owner directly or indirectly of the Company’s then outstanding securities
entitled generally to vote for the election of the Company’s directors;




     (c) the merger or consolidation to which the Company is a party if (i) the stockholders
of the Company immediately prior to the effective date of such merger or consolidation have
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of less than forty
percent (40%) of the combined voting power to vote for the election of directors of the
surviving corporation or other entity following the effective date of such merger or
consolidation; or (ii) fifty percent (50%) or more of the individuals constituting the
members the Investment Committee are terminated due to the Change in Control; or




     (d) the sale of all or substantially all, of the assets of the Company or the
liquidation or dissolution of the Company.



     Notwithstanding the foregoing provisions of this Section 2.6, if a Participant’s employment
with the Employer is terminated by the Employer other than for “Cause” six months



 









 







prior to the date on which a Change in Control occurs, such termination shall be deemed to have
occurred immediately following a Change in Control.



     Notwithstanding anything herein to the contrary, under no circumstances will a change in the
constitution of the board of directors of any Subsidiary, a change in the beneficial ownership of
any Subsidiary, the merger or consolidation of a Subsidiary with any other entity, the sale of all
or substantially all of the assets of any Subsidiary or the liquidation or dissolution of any
Subsidiary constitute a “Change in Control” under this Plan.



     Section 2.8 Common Shares. “Common Shares” means shares of common stock, $.001 par value of
Denbury Resources Inc.



     Section 2.9 Company. Denbury Resources Inc., a Delaware corporation.



     Section 2.10 Effective Date. The date the Plan is approved by the Board of Directors of the
Company, or such other date as the Board shall designate in its resolution approving the Plan.



     Section 2.11 Employer. The Company and any Subsidiary of the Company which adopts this Plan
as a Participating Employer. With respect to a Participant who is not an employee of the Company,
any reference under this Plan to such Participant’s “Employer” shall refer only to the employer of
the Participant, and in no event shall be construed to refer to the Company as well.



     Section 2.12 Good Reason. “Good Reason” shall mean the occurrence of any of the following
events or conditions:




     (a) a material diminution in the Participant’s authority, duties or responsibilities;




     (b) a material diminution in the authority, duties, or responsibilities of the
supervisor to whom the Participant is required to report, including a requirement that a
Participant report to a corporate officer or employee instead of reporting directly to the
board of directors of a corporation of the Company;




     (c) a material diminution in the Participant’s base compensation;




     (d) a material change in the geographic location at which the Participant must perform
the services, or;




     (e) any material breach by the Employer of any provision of this Plan.



     The Participant is required to provide notice to the Employer of the existence of the
condition that would result in termination of employment for Good Reason within 90 days of the
initial existence of the condition. Upon notice, the Employer has 30 days to remedy the



 









 







condition. If the Employer does not remedy the condition within 30 days, the Participant will
meet the requirements for termination of employment for Good Reason.



     Section 2.13 Investment Committee. Each employee of the Employer who has been designated by
his Employer as a member of the Investment Committee, as the membership of such Committee may be
changed from time to time. Members of the Investment Committee as of the date of the Plan’s
execution are listed on Schedule B attached hereto.



     Section 2.14 Management Group Employee. Each employee of the Employer who has been designated
by his Employer as a “Management Group Employee”, as may be designated from time to time by the
Board. Management Group Employees as of the date of the Plan’s execution are listed on Schedule C
attached hereto.



     Section 2.15 Notice of Termination. A notice which indicates the specific provisions in this
Plan relied upon as the basis for any termination of employment which sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of the Participant’s
employment under the provision so indicated; no purported termination of employment shall be
effective without such Notice of Termination.



     Section 2.16 Officer. Each employee of the Employer that is a corporate officer and is so
designated from time to time pursuant to the Company’s Bylaws. Officers as of the date of the
Plan’s execution are listed on Schedule A attached hereto.



     Section 2.17 Participant. A Participant who meets the eligibility requirements of Article
III.



     Section 2.18 Participating Employer. A Subsidiary of the Company which adopts this Plan in
accordance with Section 8.4 below, and listed on Schedule D attached hereto, and as may be amended
from time to time pursuant to Article VIII of the Plan.



     Section 2.19 Payment Date. For a Participant, the fifteenth (15th) day after the
event triggering the right of that Participant to a Severance Benefit.



     Section 2.20 Severance Benefit. The benefits payable in accordance with Article IV of the
Plan.



     Section 2.21 Severance Units. A Participant who is neither a member of the Investment
Committee, nor a Management Group Employee nor Officer shall receive one (1) Severance Unit, to be
used in calculating his Severance Benefit, for (i) each ten thousand dollars ($10,000) of his Base
Salary plus Bonus Amount, and (ii) each twelve months of employment by the Company or an Employer;
the sum of any partial Severance Units under (i) and (ii) shall be rounded to the nearest higher
whole number of Severance Units. However, the maximum number of Severance Units that may be
granted to a Participant is eighteen (18), and each Participant shall be granted at least four (4)
Severance Units.



 









 





     Section 2.22 Subsidiary. Any subsidiary of the Company, and any wholly or partially owned
partnership, joint venture, limited liability company, corporation and other form of investment by
the Company.



     Section 2.23 Termination Date. In the case of the Participant’s death, the Participant’s
Termination Date shall be his date of death. In all other cases, the Participant’s Termination
Date shall be the date specified in the Notice of Termination subject to the following:



		 	 
	 	 	     (a) If the Participant’s employment is terminated by the Employer for Cause, the date
specified in the Notice of Termination shall be at least thirty (30) days from the date the
Notice of Termination is given to the Participant; and
	 
	 	 	     (b) If the Participant terminates his employment for Good Reason, the date specified in
the Notice of Termination shall not be more than sixty (60) days from the date the Notice of
Termination is given to the Employer.






ARTICLE III

ELIGIBILITY AND PARTICIPATION




     Section 3.1 Participation. Once a person is employed by their Employer they shall
automatically become a Participant in the Plan.



     Section 3.2 Duration of Participation. A Participant shall cease to be a Participant in the
Plan upon the first to occur of: (i) the date he ceases to be an employee of the Employer at any
time six months prior to a Change in Control, (ii) the date his employment is terminated following
a Change in Control under circumstances where he is not entitled to a Severance Benefit under the
terms of this Plan, or (iii) the date on which he has received all of the benefits to which he is
entitled under this Plan.



ARTICLE IV

SEVERANCE BENEFITS




     Section 4.1 Right to Severance Benefit.




     (a) After a Change in Control has occurred, a Participant shall be entitled to receive
from the Employer a Severance Benefit in the amount provided in Sections 4.2 and 4.3 if his
employment is terminated during the period beginning six months prior to a Change of Control
and ending two years after a Change of Control, for any reason other than (i) termination by
the Employer for Cause or (ii) termination by the Participant for other than Good Reason.




     (b) A Participant shall be entitled to a Severance Benefit if that individual satisfies
all the conditions under the Plan required to qualify as a Participant



 









 







and he or she is not otherwise disqualified or excluded from eligibility under the
terms of the Plan.




     (c) Notwithstanding any other provision of the Plan, the sale, divestiture or other
disposition of a Subsidiary, shall not be deemed to be a termination of employment of
employees employed by such Subsidiary, and such employees shall not be entitled to benefits
from the Company or any Participating Employer under this Plan as a result of such sale,
divestiture, or other disposition, or as a result of any subsequent termination of
employment.



     Section 4.2 Amount of Severance Benefit. If a Participant is entitled to a Severance Benefit
under Section 4.1, the employer shall pay to the Participant, on or before the Payment Date, an
amount in cash equal to one of the following amounts:




     (a) for the Company’s Chief Executive Officer and for all other members of the
Investment Committee, three (3) times the sum of the Participant’s Base Salary and the
Bonus Amount;




     (b) for all other Officers that are not members of the Investment Committee, two and
one-half (2-1/2) times the sum of the Participant’s Base Salary and the Bonus Amount;




     (c) for all members of the Management Group, two (2) times the sum of the Participant’s
Base Salary and the Bonus Amount;




     (d) for all other employees, one-twelfth (1/12) of the sum of the Participant’s Base
Salary and Bonus Amount multiplied by the Participant’s Severance Units.



     Section 4.3 Further Benefits. If a Participant is entitled to a Severance Benefit under
Section 4.1, such Participant shall also be entitled to:




     (a) Continuation at Employer’s expense, on behalf of the Participant and his dependents
and beneficiaries, all medical, dental, vision, and health benefits and insurance coverage
which were being provided to the Participant at the time of termination of employment for a
period of time subsequent to the Participant’s termination of employment. This period of
time shall be equal to fifty percent (50%) of the number of months of compensation
represented by the Participants’ Severance Benefit, with the number of months of
compensation to be based upon the Participant’s monthly Base Salary immediately prior to the
Termination Date. The benefits provided in this Section 4.3(a) shall be no less favorable
to the Participant, in terms of amounts and deductibles and costs to him, than the coverage
provided the Participant under the plans providing such benefits at the time of termination
of Participant’s employment. An Employer may pay the employee’s cost of benefits provided
pursuant to Consolidated Omnibus Budget Reconciliation Act of 1986 and allowed under the
Employer’s benefit



 









 







plans for the applicable period of time in order to satisfy its obligation under this
provision.




     (b) The Employer’s obligation hereunder to provide a benefit shall terminate if the
Participant obtains comparable coverage under a subsequent employer’s benefit plan. For
purposes of the preceding sentence, benefits will not be comparable during any waiting
period for eligibility for such benefits or during any period during which there is a
preexisting condition limitation on such benefits. The Employer also shall pay a lump sum
equal to the amount of any additional income tax payable by the Participant and attributable
to the benefits provided under subparagraph (a) of this Section at the time such tax is
imposed upon the Participant. At the end of the period of coverage set forth above, the
Participant shall have the option to have assigned to him at no cost to the Participant and
with no apportionment of prepaid premiums, any assignable insurance owned by the Employer
and relating specifically to the Participant, and the Participant shall be entitled to all
health and similar benefits that are or would have been made available to the Participant
under law.



     Section 4.4 Mitigation or Set-off of Amounts Payable Hereunder. The Participant shall not be
required to mitigate the amount of any payment provided for in this Article IV by seeking other
employment or otherwise, nor shall the amount of any payment provided for in this Article IV be
reduced by any compensation earned by the Participant as the result of employment by the Company or
any successor after the Payment Date or by another employer after the Termination Date, or
otherwise. The Employer’s obligations hereunder also shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the Employer may have
against the Participant.



     Section 4.5 Company Guarantee of Severance Benefit. In the event a Participant becomes
entitled to receive from the Employer a Severance Benefit under this Article IV above and such
Employer fails to pay such Severance Benefit, the Company shall assume the obligation of such
Employer to pay such Severance Benefit. In consideration of the Company’s assumption of the
obligation to pay such Severance Benefit provided under this Plan, the Company (as the source of
payment of benefits under the Plan) shall be subrogated to any recovery (irrespective of whether
there is recovery from the third party of the full amount of all claims against the third party) or
right to recovery of either a Participant or his legal representative against the Employer or any
person or entity. The Participant or his legal representative shall cooperate in doing what is
reasonably necessary to assist the Company in exercising such rights, including but not limited to
notifying the Company of the institution of any claim against a third party and notifying the third
party and the third party’s insurer, if any, of the Company’s subrogation rights. Neither the
Participant nor his legal representative shall do anything after a loss to prejudice such rights.
In its sole discretion, the Company reserves the right to prosecute an action in the name of the
Participant or his legal representative against any third parties potentially liable to the
Participant. The Company shall have the absolute discretion to settle subrogation claims on any
basis it deems warranted and appropriate under the circumstances. If a Participant or his legal
representative initiates a lawsuit against any third



 









 







parties potentially liable to the Participant, the Company shall not be responsible for any
attorney’s fees or court costs that may be incurred in such liability claim. The Company shall be
entitled, to the extent of any payments made to or on behalf of a Participant or a dependent of the
Participant, to be paid first from the proceeds of any settlement or judgment that may result from
the exercise of any rights of recovery asserted by or on behalf of a Participant or his legal
representative against any person or entity legally responsible for the injury for which such
payment was made. The right is also hereby given the Company to receive directly from the Employer
or any third party(ies), attorney(s) or insurance company(ies) an amount equal to the amount paid
to or on behalf of the Participant.



     Section 4.6 Forfeiture of Severance Benefits. A Participant shall forfeit any and all
entitlement to any Severance Benefit if the Administrator determines that the Participant has
failed to fulfill any requirement of the Plan.



     Section 4.7 Payment after Death. If a Participant dies before his or her Severance Benefits
have been paid in full, the remaining Severance Benefits will be paid to the beneficiaries named in
such Participant’s last will and testament, or if no will or beneficiary exist then to such
Participant’s heirs at law. The Plan shall be discharged fully and completely to the extent of any
payment made to any such beneficiaries or heirs at law.



ARTICLE V

TERMINATION OF EMPLOYMENT




     Section 5.1 Written Notice Required. Any purported termination of employment, either by the
Employer or by the Participant, shall be communicated by written Notice of Termination to the
other.



ARTICLE VI

ADDITIONAL PAYMENTS BY THE COMPANY




     Section 6.1 Gross-Up Payment. In the event it shall be determined that any payment or
distribution of any type by the Employer to or for the benefit of an Officer, whether paid or
payable or distributed or distributable pursuant to the terms of this Plan or otherwise (the “Total
Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the “Code”) or any interest or penalties with respect to such excise tax
(such excise tax, together with any such interest and penalties, are collectively referred to as
the “Excise Tax”, then the Officer shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that at the time of payment by the Officer of all taxes (including
additional excise taxes under said Section 4999 and any interest, and penalties imposed with
respect to any taxes) imposed upon the Gross-Up Payment, the Officer shall have an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. The Company shall pay
the Gross-Up Payment to the Officer within twenty (20) business days after the Payment Date or the
Termination Date, whichever is applicable.



 









 





     Section 6.2 Determination By Accountant. All determinations required to be made under this
Article VI, including whether a Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall be made by the independent accounting firm retained by the Company on the date of
Change in Control (the “Accounting Firm”), which shall provide detailed supporting calculations
both to the Company and the Officer within fifteen (15) business days of the Payment Date or
Termination Date, whichever is applicable, or such earlier time as is requested by the Company. If
the Accounting Firm determines that no Excise Tax is payable by the Officer, it shall furnish the
Officer with an opinion that he has substantial authority not to report any Excise Tax on his
federal income tax return. Any determination by the Accounting Firm shall be binding upon the
Company and the Officer. As a result of the uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that
a Gross-Up Payment which will not have been made by the Company should have been made
(“Underpayment”), consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 6.3 and the Officer thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to
or for the benefit of the Officer.



     Section 6.3 Notification Required. The Officer shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the payment by the Company
of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than
ten (10) business days after the Officer knows of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is requested to be paid. The Officer shall
not pay such claim prior to the expiration of the thirty (30) day period following the date on
which it gives such notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies the Officer in
writing prior to the expiration of such period that it desires to contest such claim, the Officer
shall:




     (a) give the Company any information reasonably requested by the Company relating to
such claim,




     (b) take such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably selected by the
Company,




     (c) cooperate with the Company in good faith in order to effectively contest such
claim,




     (d) permit the Company to participate in any proceedings relating to such claim,
provided, however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such contest and
shall indemnify and hold the Officer harmless, on an after-tax basis, for any



 









 







Excise Tax or income tax, including interest and penalties with respect thereto,
imposed as a result of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 6.3, the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either direct the
Officer to pay the tax claimed and sue for a refund, or contest the claim in any
permissible manner, and the Officer agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the Company
directs the Officer to pay such claim and sue for a refund, the Company shall advance the
amount of such payment to the Officer, on an interest-free basis and shall indemnify and
hold the Officer harmless, on an after-tax basis, from any Excise Tax or income tax,
including interest or penalties with respect thereto, imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes for the
taxable year of the Officer with respect to which such contested amount is claimed to be
due is limited solely to such contested amount. Furthermore, the Company’s control of the
contest shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Officer shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue Service or any other taxing authority.



     Section 6.4 Repayment. If, after the receipt by the Officer of an amount advanced by the
Company pursuant to Section 6.3, the Officer becomes entitled to receive any refund with respect to
such claim, the Officer shall (subject to the Company’s complying with the requirements of Section
6.3) promptly pay to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the Officer of an
amount advanced by the Company pursuant to Section 6.3, a determination is made that the Officer
shall not be entitled to any refund with respect to such claim and the Company does not notify the
Officer in writing of its intent to contest such denial of refund prior to the expiration of thirty
days after such determination, then such advance shall be forgiven and shall not be required to be
repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.



ARTICLE VII

SUCCESSORS TO COMPANY




     Section 7.1 Successors. This Plan shall bind any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, in the same manner and to the same extent that the Company would be
obligated under this Plan if no succession had taken place. In the case of any transaction in
which a successor would not, by the foregoing provision or by operation of law, be bound by this
Plan, the Company shall require such successor expressly and unconditionally to



 









 







assume and agree to perform the Company’s obligations under this Plan, in the same manner and
to the same extent that the Company would be required to perform if no such succession had taken
place. Failure of the Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach hereof and shall entitle the Participant to compensation from the
Company in the same amount and on the same terms as the Participant would be entitled hereunder if
the Participant terminated his employment for Good Reason, except that for purposes of implementing
the foregoing, the date on which any such succession becomes effective shall be deemed the
Termination Date. As used herein, “the Company” shall mean the Company as hereinbefore defined and
any successor to its business and/or assets as aforesaid which executes and delivers the agreement
provided for in this Section 7.1 or which otherwise becomes bound by all the terms and provisions
hereof by operation of law.



ARTICLE VIII

DURATION, AMENDMENT, PLAN TERMINATION

AND ADOPTION BY SUBSIDIARIES




     Section 8.1 Duration. This Plan shall continue in effect until terminated in accordance with
Section 8.2. If a Change in Control occurs, this Plan shall continue in full force and effect,
and shall not terminate or expire, until after all Participants who have become entitled to a
Severance Benefit hereunder shall have received all of such benefits in full.



     Section 8.2 Amendment and Termination. The Plan and its attached Schedules may be terminated
or amended in any respect by resolution adopted by two-thirds of the Board; provided, however,
that no such amendment or termination of the Plan may be made if such amendment or termination
would adversely affect any right of a Participant who became a Participant prior to the later of
(i) the date of adoption of any such amendment or termination, or (ii) the effective date of any
such amendment or termination; and, provided further, that the Plan no longer shall be subject to
amendment, change, substitution, deletion, revocation or termination in any respect whatsoever
following a Change in Control.



     Section 8.3 Form of Amendment. The form of any amendment or termination of the Plan shall be
a written instrument signed by a duly authorized officer or officers of the Company, certifying
that the amendment or termination has been approved by the Board.



     Section 8.4 Adoption by Subsidiaries. Any Subsidiary of the Company may, with the approval of
the Board of Directors of the Company, adopt and become an Employer under this Plan by executing
and delivering to the Company an appropriate instrument agreeing to be bound as an Employer by all
of the terms of the Plan with respect to its eligible employees. The adoptive instrument may
contain such changes and amendments in the terms and provisions of the Plan as adopted by such
Subsidiary as may be desired by such Subsidiary and acceptable to the Company. The adoptive
instrument shall specify the effective date of such adoption of the Plan and shall become as to
such adopting Subsidiary a part of this Plan.



 









 





ARTICLE IX

CLAIMS AND APPEAL PROCEDURES




     Section 9.1 Claims Procedure. With respect to any claim for Severance Benefits under the
Plan, the Administrator will issue a decision on whether the claim is denied or granted within
fifteen (15) days after receipt of the claim by the Administrator, unless special circumstances
require an extension of time for processing the claim, in which case a decision will be rendered
not later than twenty (20) days after receipt of the claim. Written notice of the extension will
be furnished to the Participant prior to the expiration of the initial fifteen (15) day period and
will indicate the special circumstances requiring an extension of time for processing the claim and
will indicate the date the Administrator expects to render its decision. If the claim is denied in
whole or in part, the decision in writing by the Administrator shall include the specific reasons
for the denial and reference to the Plan provisions on which the denial is based. The decision
also shall include a description of any additional information which the Participant needs to
submit in order to refile the claim, along with an explanation of why such additional information
is necessary and how the procedure for reviewing claims works. If the notice of denial is not
furnished in accordance with the above procedure, the claim shall be deemed denied and the
Participant is permitted to proceed with the review procedure.



     Section 9.2 Appeals Procedure. If his claim is denied in whole or in part, an Participant may
appeal in writing a denial of the claim, in part or in whole, and request a review by the
Administrator. The appeal must be submitted within sixty (60) days after notice of the denial of
the claim. The Participant may request in writing to review copies of pertinent Plan documents in
connection with the appeal. The Administrator will review the appeal and notify the Participant of
the final decision within fifteen (15) days after receiving the request for review unless the
Administrator requires an extension due to special circumstances, in which case the final decision
will be made within twenty (20) days after the Administrator receives the request for review. The
notice of the final decision must include the specific reasons for the decision and specific
references to the pertinent Plan provisions on which the Administrator’s decision is based.



     Section 9.3 Exclusive Initial Remedy. No action may be brought for benefits provided by this
Plan or to enforce any right hereunder until after a claim has been submitted to and determined by
the Administrator and all appeal rights under the Plan have been exhausted. Thereafter, the
Participant may bring an action for benefits provided by this Plan or to enforce any right
hereunder. The Participant’s beneficiary should follow the same claims procedure in the event of
the Participant’s death.



ARTICLE X

PLAN ADMINISTRATION




     Section 10.1 In General. The general administration of the Plan and the duty to carry out its
provisions shall be vested in the Administrator, which shall be the “Plan Administrator” as that
term is defined in section 3(16)(A) of ERISA. The Plan and Severance Benefits under the



 









 







Plan shall be administered by the Administrator appointed from time to time by the Company.
The Administrator may, in its discretion, secure the services of other parties, including agents
and/or employees to carry out the day-to-day functions necessary to an efficient operation of the
Plan. The Administrator’s interpretations, decisions, requests and exercises of power and
responsibilities shall not be subject to review by anyone and shall be final, binding, and
conclusive upon all persons. The Administrator shall, in its sole and absolute discretion, have
the exclusive right to interpret all of the terms of the Plan, to determine eligibility for
coverage and benefits, to resolve disputes as to eligibility, type, or amount of benefits, to
correct any errors or omissions in the form or operation of the Plan, to make such other
determinations with respect to the Plan, and to exercise such other powers and responsibilities as
shall be provided for in the Plan or as shall be necessary or helpful with respect thereto. The
Administrator under and pursuant to this Plan shall be the named fiduciary for purposes of section
402(a) of ERISA with respect to all powers and duties expressly or implicitly assigned to it
hereunder. Any determination or decision by the Company made under or with respect to any
provision of the Plan shall be in the Company’s sole and absolute discretion, shall not be subject
to review by anyone and shall be final, binding and conclusive upon all persons.



     Section 10.2 Reimbursement and Compensation. The Administrator shall receive no compensation
for its services as Administrator, but it shall be entitled to reimbursement for all sums
reasonably and necessarily expended by it in the performance of such duties.



     Section 10.3 Rulemaking Powers. The Administrator shall have the power to make reasonable and
uniform rules and regulations required in the administration of the Plan, to make all
determinations necessary for the Plan’s administration, except those determinations which the Plan
requires others to make, and to construe and interpret the Plan wherever necessary to carry out its
intent and purpose and to facilitate its administration.



ARTICLE XI

SOURCE OF SEVERANCE PAYMENT




     Section 11.1 No Separate Fund Established All Severance Benefits shall be paid in cash from
the general funds of the Company or an Employer, and no special or separate fund shall be
established. Nothing contained in the Plan shall create or be construed to create a trust of any
kind, and nothing contained in the Plan nor any action taken pursuant to the provisions of the Plan
shall create or be construed to create a fiduciary relationship between the Company or an employer
and a Participant, beneficiary, employee or other person. To the extent that any person acquires a
right to receive Severance Benefits from the Company or an Employer under the Plan, such right
shall be no greater than the right of any unsecured general creditor of the Company or Employer.
For purposes of the Code, the Company intends this Plan to be an unfunded, unsecured promise to pay
on the part of the Company. For purposes of ERISA, the Company intends the Plan to be a “severance
plan” within the meaning of the applicable ERISA regulations.



 









 





ARTICLE XII

MISCELLANEOUS




     Section 12.1 Participant’s Legal Expenses. The Company agrees to pay, upon written demand
therefor by the Participant, fifty percent (50%) of all legal fees and expenses which the
Participant may reasonably incur in order to collect amounts to be paid or obtain benefits to be
provided to such Participant under the Plan, plus in each case interest at the “applicable Federal
rate” (as defined in Section 1274(d) of the Code). In any such action brought by a Participant for
damages or to enforce any provisions hereof, he shall be entitled to seek both legal and equitable
relief and remedies, including, without limitation, specific performance of the Company’s
obligations hereunder, in his sole discretion. However, in any instance where a Participant
receives, as the result of a final, nonappealable judgment of a court of competent jurisdiction or
a mutually agreed upon settlement with the Company, Severance Benefits greater than those first
offered by the Company or its successor to the Participant, then the Company shall pay one hundred
percent (100%) of all such legal fees and expenses incurred by the Participant.



     Section 12.2 Employment Status. This Plan does not constitute a contract of employment or
impose on the Employer any obligation to retain a Participant as an employee, to change the status
of a Participant’s employment as a Management Group Employee or in any other position, or to change
any employment policies of the Employer.



     Section 12.3 Validity and Severability. The invalidity or unenforceability of any provision
of the Plan shall not affect the validity or enforceability of any other provision of the Plan,
which shall remain in full force and effect, and any prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.



     Section 12.4 The Participant’s Heirs, etc. This Agreement shall inure to the benefit of and
be enforceable by the Participant’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Participant should die while any
amounts would still be payable to him hereunder as if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms hereof to his designee
or, if there be no such designee, to his estate.



     Section 12.5 Governing Law. The validity, interpretation, construction and performance of the
Plan shall in all respects be governed by the laws of the State of Texas.



     Section 12.6 Choice of Forum. A Participant shall be entitled to enforce the provisions of
this Plan in any state or federal court located in the Dallas County, Texas, in addition to any
other appropriate forum.



     Section 12.7 Notice. For the purposes hereof, notices and all other communications provided
for herein shall be in writing and shall be deemed to have been duly given when delivered or mailed
by United States registered or certified mail, return receipt requested, postage prepaid, addressed
to the Company at its principal place of business and to the Participant at his address as shown on
the records of the Employer, provided that all notices to



 









 







the Company shall be directed to the attention of the Chief Executive Officer of the Company
with a copy to the Secretary of the Company, or to such other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.



     Section 12.8 Alienation. No benefit, right or interest of any person under the Plan will be
subject to alienation, anticipation, sale, transfer, assignment, pledge, encumbrance or charge,
seizure, attachment or legal, equitable or other process or be liable for or subject to, the debts,
liabilities or other obligations of such persons, except as otherwise required by law. No
Participant, dependent or their beneficiary shall have any right or claim to benefits from the
Plan, except as specified in the Plan.



     Section 12.9 Pronouns. A pronoun or adjective in the masculine gender includes the feminine
gender, and the singular includes the plural, unless the context clearly indicates otherwise.



     Section 12.10 Section 409A. If it is determined that Section 409A of the Internal Revenue
Code applies to any payments made on account of termination of employment to specified employees
(as defined under Section 409A of the Internal Revenue Code) the payment shall occur no earlier
than the expiration of the six-month period following such termination of employment.



 









 





SCHEDULE A




“Officers”, as of December 30, 2008



Gareth Roberts

Mark Allen

Dan Cole

Robert Cornelius

Brad Cox

Ray Dubuisson

Tracy Evans

Charlie Gibson

Phil Rykhoek

Barry Schneider

Jerry Ballard




 









 








SCHEDULE B




“Investment Committee”, as of December 30, 2008



Gareth Roberts



Mark Allen



Robert Cornelius



Tracy Evans



Phil Rykhoek




 









 








SCHEDULE C




“Management Group”, as of December 30, 2008




None




 









 








SCHEDULE D




“Participating Employers”, as of December 30, 2008




None