ex10-22.htm


    Exhibit 10.22

    
      
        

      




    EXECUTIVE
SEVERANCE AGREEMENT

    (as
Amended and Restated)

    


     

    THIS EXECUTIVE SEVERANCE AGREEMENT
(as Amended and Restated) (“Agreement”), effective as of December 30,
2008 (the “Effective Date”), by and between Frontier Oil Corporation, a Wyoming
corporation (the “Company”), and Nancy J. Zupan (the “Executive”).

     

    WITNESSETH:

     

    WHEREAS, the Company and the
Executive have heretofore entered into that certain Executive Severance
Agreement effective as of May 30, 2006 (the “Prior Agreement”) to provide the
Executive with certain benefits upon a Qualified Termination of Employment, as
defined below;

     

    WHEREAS, the parties desire to
amend and restate the Prior Agreement;

     

    NOW, THEREFORE, in
consideration of the premises and covenants herein contained and other good,
valuable and binding consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:

     

    1. Term
of Agreement.

     

    1.01 This
Agreement is effective as of the Effective Date and, unless terminated earlier
as provided herein, shall terminate on the first anniversary of the Effective
Date; provided, however, on each anniversary of the Effective Date the term of
this Agreement (“Term”) shall be extended automatically for an additional
one-year period unless the Company shall have delivered to the Executive written
notice of non-renewal at least 90 days prior to the applicable
anniversary.

     

    1.02 Notwithstanding
any provision of this Agreement to the contrary, termination of this Agreement
shall not alter or impair any rights, benefits or obligations of the Executive
(or his estate or beneficiaries) that have arisen under this Agreement on or
prior to such termination.

     

    1.03 Nothing
in this Agreement shall operate or be construed to create any right or duty on
the part of the Company or the Executive to remain in the employment of the
Company for any period of time, each reserving all rights to terminate the “at
will” employment relationship of the Executive at any time.

     

    2. Qualified
Termination of Employment.

     

    2.01 In the
event of the Executive’s Qualified Termination of Employment, as defined in
paragraph 2.02 below, during the Term of this Agreement, the Executive shall be
entitled to receive the following payments and benefits, provided the Executive
timely executes and returns to the Company a Waiver and Release in the form
attached hereto as Attachment A and does not revoke such Waiver and
Release:

     

    (a) Continuation of Base
Salary: the Company shall pay to the Executive, beginning on the 15th day
of the calendar month that is 60 days after such Qualified Termination of
Employment occurs and continuing thereafter on the last day of such initial
calendar month and on the 15th day and the last day of each calendar month
thereafter until the earlier of the Executive’s date of death or the 24th
payment made under this paragraph 2.01(a) has been paid an amount equal to 50%
of his monthly base salary, as determined immediately prior to the Qualified
Termination of Employment, but disregarding any reductions in such monthly base
salary made in the preceding three months unless equal percentage reductions
were made in the base salaries of all other comparable executives of the
Company.  In accordance with Treasury Regulation §1.409A-2(b)(iii),
the Executive’s right to this series of installment payments shall at all times
be treated as a right to a series of separate payments, and in the event of a
“change in control event”, within the meaning of Section 409A(a)(2)(A)(v) of the
Internal Revenue Code (“Code”) and Treas. Reg. §1.409A-3(i)(5), all remaining
installment payments shall be accelerated and paid in a lump sum, subject to
paragraph 2.01(e)(v).

     

    (b) Pro Rated
Bonus:

     

    (i) With
respect to a bonus that is intended to qualify as “performance-based
compensation” under Section 162(m) of the Code at its time of grant (“Bonus”),
such Bonus shall continue pursuant to its terms except as provided
herein.  Notwithstanding anything in the Bonus agreement to the
contrary, to the extent that all or a part of the Bonus becomes payable (x)
pursuant to its terms as a result of the achievement of the performance targets
or goals applicable to such Bonus award (based on actual results compared to
target(s)), or (y) due to a change in control event, a prorated portion thereof
(based on the number of days in the performance period that have lapsed through
the Executive’s Qualified Termination of Employment date over the total number
of days in the performance period) shall be paid to the Executive in a lump sum
on or as soon as practical following the end of the performance period, or, if
earlier, the date of the change in control event, and in no event later than 21⁄2
months following the end of the performance period or the date of the change in
control event, if earlier.

     

    (ii) With
respect to a bonus that is not intended to be “performance-based compensation”
under Section 162(m) of the Code, the Company shall pay the Executive, in lieu
of such bonus, an amount equal to the product of (1) his annual base salary (his
monthly base salary as determined above multiplied by 12) and (2) his target
bonus percentage for the bonus year in which the qualified Termination of
Employment occurs or for the immediately preceding bonus year, if a higher
target percentage, with such product prorated based on the number of days the
Executive was an employee of the Company during the bonus year in which his
employment terminated over 365.  Such prorated bonus shall be paid on
the 60th day after the Qualified Termination of Employment.

     

    (c) COBRA
Premiums:  if the Executive timely elects COBRA continuation
coverage on his Qualified Termination of Employment, then, until the earliest of
(i) the end of the 12 month period following the Qualified Termination, (ii) the
termination of COBRA continuation coverage for the Executive for any reason, or
(iii) the Executive becomes employed by another employer, regardless of whether
he is covered under a group health plan of such other employer, the Company
shall remit on behalf of the Executive the full monthly premium for the COBRA
coverage elected by the Executive under the Company’s plan; provided, however,
such premium payment by the Company on behalf of the Executive shall constitute
and be treated by the parties as additional taxable severance compensation to
the Executive for all purposes.

     

    (d) Outplacement:  the
Company will provide the Executive with outplacement services (to the extent
reasonable with the Executive’s position as determined by the Company, but in no
event to exceed $15,000) during the 12 month period following the Qualified
Termination of Employment, through an outplacement services provider selected or
approved by the Company.

     

    (e) Company
Equity Awards:

     

    (i) All
Company stock options and stock appreciation rights (“SARs”) granted to the
Executive shall, upon a Qualified Termination of Employment, become fully vested
upon such Qualified Termination of Employment and shall remain exercisable until
the earliest of (i) the third anniversary of the date of the Qualified
Termination of Employment (but in no event later than the earlier of (x) the
10th
anniversary of the original grant date of the Option or SAR or (y) the latest
date on which the option or SAR could have expired by its original terms under
any circumstances), (ii) the date the option or SAR would have expired by its
terms if the Executive had not incurred a termination of employment, and (iii)
the date options and SARs granted under the Company’s equity plan are terminated
in connection with a change in control event of the Company;

     

    (ii) Except as
provided in clause (i) above, all Company equity-based awards that are intended
to qualify as “performance-based compensation” under Section 162(m) of the Code
(“Performance Awards”) on the date of grant shall, upon a Qualified Termination
of Employment, continue pursuant to their terms.  Notwithstanding
anything in a Performance Award agreement to the contrary, to the extent that
all or a part of the Performance Award becomes payable pursuant to (x) its terms
as a result of the achievement of the performance targets or goals applicable to
such Performance Award (based on actual results compared to target(s)) or (y)
the occurrence of a change in control event, a prorated portion (based on the
number of days in the performance period that have lapsed through the
Executive’s Qualified Termination of Employment date over the total number of
days in the performance period) of such Performance Amount shall be paid to the
Executive in a lump sum on or as soon as practical following the end of the
performance period or the date of the change in control event; but in no event
later than 21⁄2 months following the end of the performance period or the date of
the change in control event, if earlier; and

     

    (iii) Except as
provided in clause (i) above, all other Company equity-based awards that are not
intended to be Performance Awards shall vest in full (except as provided below)
(notwithstanding anything in such award’s grant agreement to the contrary) upon
a Qualified Termination of Employment (at their target level for those awards
with target levels and/or performance criteria) and shall be paid to the
Executive on the 60th day after his Qualified Termination of Employment;
provided, however, that if the Executive’s Qualified Termination of Employment
occurs in the year in which such award is granted to the Executive, only a
portion of such award shall vest (based on the number of days in the year that
have lapsed through the Executive’s Qualified Termination of Employment date
over 365) and such vested portion shall be paid to the Executive not later than
60 days after his Qualified Termination of Employment.

     

    (f) Life
Insurance:  if provided to the Executive immediately prior to the
Qualified Termination of Employment, the Company shall continue the Executive’s
coverage(s) in the Company’s basic and/or executive life insurance program(s)
for 12 months or until the Executive becomes employed by another employer,
whichever occurs first, provided such continued coverage(s) of the Executive is
permitted by the term(s) of the life insurance contract(s) issued to the Company
with respect to such program(s).

     

    (g) Waiver
and Release: the waiver and release required under this Section 2.01 for
payments and benefits to be made to the Executive hereunder must be executed and
returned to the Company by the Executive no later than the 45th day following
the Executive’s Qualified Termination of Employment; however, if the Executive
dies prior to the Waiver and Release becoming effective (or prior to the
execution of the Waiver and Release within such 45-day period), such requirement
shall be waived and the payment and benefits shall be made to the Executive’s
estate by the later of the end of the year of his death or 21⁄2 months after his
date of death.

     

    2.02 A
“Qualified Termination of Employment,” for purposes of this Agreement,
means:

     

    (a) a
termination of the Executive’s employment by the Company during the Term for any
reason other than for (i) Cause, as defined in paragraph 2.03 below, or (ii) a
disability that is anticipated to be permanent and total, as determined by the
Company’s long-term disability insurance carrier, and entitles the Executive to
receive benefits under the long-term disability plan of the Company or its
affiliates, or

     

    (b) a
termination by the Executive of his employment with the Company during the Term
based upon the occurrence of any of the following events:

     

    (i) a
material reduction in the Executive’s monthly base salary, unless comparable
reductions are made in the base salaries of all similar executives by the
Company,

     

    (ii) a
material reduction in the annual target percentage or bonus opportunities
provided to the Executive, as compared against those in effect in the
immediately preceding bonus year, unless comparable reductions are made in the
annual target percentages or bonus opportunities of all similar executives by
the Company, or

     

    (iii) a written
notice to the Executive of the relocation of his principal office location by
more than 50 miles from its then location, unless the Executive is provided with
relocation benefits and reimbursements by the Company that are comparable to the
relocation package customarily provided by the Company to similarly situated
executives of the Company and provides for the payment by the Company of the
costs for the relocation of the Executive’s household goods and for the
reimbursement of the costs of selling the Executive’s residence, if any, but
excluding any costs of repairs, improvements, income taxes or other similar
non-realtor selling or closing expenses.

     

    2.03 For
purposes of this Agreement, the termination of the Executive’s employment by the
Company shall be deemed to have been for “Cause” only if:

     

    (a) such
termination shall have been the result of an act or acts of dishonesty on the
part of the Executive resulting or intended to result, directly or indirectly,
in gain or personal enrichment to the Executive at the expense of the Company or
an affiliate;

     

    (b) the
Executive’s unwillingness to perform his duties in a satisfactory manner, as
determined in good faith by the Board of Directors of the Company (the “Board”);
or

     

    (c) the
Executive, after written notice from the Company, shall have failed, within the
period provided in such notice, to perform his duties at a level consistent with
his performance prior to the failure that gave rise to the notice from the
Company, as determined in good faith by the Board.

     

    2.04 If the
Executive’s employment with the Company and its affiliates is terminated for any
reason other than a Qualified Termination of Employment, this Agreement shall
automatically terminate on such termination of employment without any payments
or benefits due the Executive under this Agreement.

     

    2.05 Notwithstanding
anything in this Agreement to the contrary, if any payment to the Executive
under this Agreement would subject the Executive to the additional tax provided
by Section 409A of the Code if made before the date that is six months after the
Qualified Termination of Employment, such payment(s) shall be deferred (and
accumulated without interest if more than one) and paid in a single sum on the
first business day of the seventh month following the date of the Qualified
Termination of Employment or on such earlier date, if any, as would not subject
the Executive to such additional tax.

     

    2.06 Notwithstanding
anything in this Agreement to the contrary, a “termination of Executive’s
employment” means a “separation from service” for purposes of Section 409A of
the Code.

     

    3. Confidential
Information

     

    3.01 The
Executive agrees not to disclose, either while in the Company’s employ or at any
time thereafter, to any person not employed by the Company or an affiliate, or
not engaged to render services to the Company or an affiliate, or any person who
is not authorized to receive such disclosure, any confidential information
concerning the Company’s businesses, operations, financial affairs, policies,
procedures, personnel, business plans or any other confidential information
relating to the business of the Company or an affiliate obtained by him while in
the employ of the Company or an affiliate; provided, however, that this
provision shall not preclude the Executive from use or disclosure of information
known generally to the public or of information not considered confidential by
persons engaged in the business conducted by the Company or an affiliate or from
disclosure required by law.

     

    3.02 The
Executive agrees that upon leaving the Company’s employ he will not take with
him, without the prior written consent of an officer authorized to act in the
matter by the Board, any document, notes, disc, tape, or electronic medium or
other property, including copies thereof, containing any information of the
Company or its affiliates that is of a confidential nature.

     

    3.03 The
Executive shall not, for his own account or the account of any other person or
entity, during his employment with the Company and the one-year period following
the termination of his employment for any reason, solicit or in any manner
induce or attempt to induce any employee of the Company or an affiliate to
terminate his or her employment or interfere in any manner with any such
employment relationship.

     

    3.04 The
Company and the Executive agree that neither party shall at any time during or
after the termination of the Executive’s employment disparage the other party in
any manner, including any parent, subsidiary, affiliate, director, agent,
officer, employee, agent or shareholder of the Company.

     

    3.05 The
foregoing obligations of this Section 3 will survive and remain binding and
enforceable on the parties, notwithstanding the termination of this Agreement,
the Executive’s termination of employment and without regard to the reason for
such termination.

     

    4. Notices

     

    All
notices, requests, demands and other communications provided for by this
Agreement shall be deemed to have been duly given if and when mailed in the
continental United States by registered or certified mail, return receipt
requested, postage prepaid, or personally delivered or sent by telex or other
telegraphic means to the party entitled thereto at the address stated below or
to such changed address as the addressee may have given by a similar
notice:

     

    To the
Company:           
                 Frontier
Oil Corporation

    10000 Memorial Drive

    Suite 600

    Houston,
Texas  77024

    Attn:  General
Counsel

    


    To the
Executive:           
                 Nancy
J. Zupan

    13897 E. Greenwood Dr.

    Aurora,
CO  80014

    


     

    5. General
Provisions

     

    5.01 Except as
provided in paragraph 5.11, there shall be no right of set-off, mitigation or
counterclaim in respect of any claim, debt or obligation, against any payments
to the Executive, his dependents, beneficiaries or estate provided for in this
Agreement.

     

    5.02 The
Company and the Executive recognize that each party will have no adequate remedy
at law for breach by the other of any of the agreements contained herein and, in
the event of any such breach, the Company and the Executive hereby agree and
consent that the other shall be entitled to a decree of specific performance,
mandamus, injunction or other appropriate remedy to enforce performance of such
agreements.

     

    5.03 No right
or interest in any payments under this Agreement shall be assignable by the
Executive; provided, however, that this provision shall not preclude the legal
representative of his estate from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate.

     

    5.04 No right,
benefit or interest hereunder shall be subject to anticipation, alienation,
sale, assignment, encumbrance, charge, pledge, hypothecation, or set-off in
respect of any claim, debt or obligation, or to execution, attachment, levy or
similar process, or assignment by operation of law, except as provided in
paragraph 5.03. Any attempt, voluntary or involuntary, to effect any action
specified in the immediately preceding sentence shall, to the full extent
permitted by law, be null, void and of no effect.

     

    5.05 In the
event of the Executive’s death or a judicial determination of his incompetence,
reference in this Agreement to the Executive shall be deemed, where appropriate,
to his beneficiary or beneficiaries. This Agreement shall inure to the benefit
of and be enforceable by Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.

     

    5.06 The
titles to sections in this Agreement are intended solely for convenience and no
provision of this Agreement is to be construed by reference to the title of any
section.

     

    5.07 No
provision of this Agreement may be amended, modified or waived unless such
amendment, modification or waiver shall be authorized by the Board or any
authorized committee of the Board and shall be agreed to in writing, signed by
the Executive and by an officer of the Company thereunto duly
authorized.

     

    5.08  Except
as otherwise specifically provided in this Agreement, no waiver by either party
hereto of any breach by the other party hereto of any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of a
subsequent breach of such condition or provision or a waiver of a similar or
dissimilar provision or condition at the same or at any prior or subsequent
time.

     

    5.09 In the
event that any provision or portion of this Agreement shall be determined to be
invalid or unenforceable for any reason, the remaining provisions and portions
of this Agreement shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law.

     

    5.10 This
Agreement shall be governed by and construed in accordance with the laws of the
State of Texas.  THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS IN HARRIS
COUNTY, TEXAS FOR THE PURPOSES OF ANY PROCEEDING ARISING OUT OF THIS
AGREEMENT.

     

    5.11 If the
Executive is entitled to severance payments or severance benefits pursuant to an
individual employment agreement or change of control agreement with the Company,
the parties hereto intend for there not to be a duplication of such payments or
benefits with any severance payments or severance benefits to which the
Executive may be entitled to receive under this Agreement and the payments and
benefits under such other agreement shall reduce or offset any similar payment
or benefit to which the Executive is entitled to receive under this Agreement
and which has not yet been paid or provided.

     

    5.12 The
Executive shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise.

     

    5.13 Nothing
in this Agreement shall limit or otherwise adversely effect such rights as the
Executive may have under the terms of any equity award, employee benefit plan,
incentive compensation arrangement or other agreement with the Company or any of
its affiliates.

     

    5.14 The
Company shall withhold from all payments and benefits provided under this
Agreement all taxes required to be withheld by the Company by applicable
law.

     

    5.15 For
purposes of this Agreement, “employment with the Company” shall include any
employment of the Executive with a parent, subsidiary or affiliate of the
Company.

     

    5.16 It is the
intent of the parties that payments under this Agreement constitute separation
pay and comply with the requirements of Section 409A of the Internal Revenue
Code so that the Executive is not subject to the additional tax provided under
said section.  The parties agree that the Agreement shall be
interpreted and modified as necessary to comply with Section 409A.

     

    IN WITNESS WHEREOF, the
parties hereto have executed this Agreement effective for all purposes as of the
Effective Date.

     

    FRONTIER OIL CORPORATION

     

    By: /s/ Michael C.
Jennings

     

    Name: Michael C.
Jennings

     

    Title: EVP &
CFO

     

    


    


    EXECUTIVE

    


    /s/ Nancy J.
Zupan

    Nancy J. Zupan