Contract
Exhibit
99.1 Form of Change in Control Severance Protection
Agreement
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Xxxxx
Petroleum Company
Phone
(000) 000-0000
0000
Xxxxxxx Xxxxxx, Xxxxx
000 E-mail:
xx@xxx.xxx
Xxxxxxxxxxx,
Xxxxxxxxxx
00000-0000 Internet:
xxx.xxx.xxx
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Form
Effective August 22, 2006
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XXXXX
PETROLEUM COMPANY
Xxxxx
Petroleum Company, a Delaware corporation (the "Company")
and
________________ ("Executive")
enter
into this Change in Control Severance Protection Agreement (this "Agreement")
as of
______________, 2006. The Agreement is subject to the terms of all appendices
hereto.
RECITALS
WHEREAS,
Executive is a key employee of Company and serves as
Company's______________________________, and Company and Executive desire
to set
forth herein the terms and conditions of Executive's compensation in
the event
of a termination of Executive's employment in connection with a Change
in
Control (as defined below).
WHEREAS,
in the
event of a Change in Control, Executive may be vulnerable to dismissal
without
regard to quality of Executive's service, and Company believes that it
is in the
best interest of Company to enter into this Agreement in order to ensure
fair
treatment of Executive and to reduce the distractions and other adverse
effects
upon such Executive's performance which are inherent in the event of
such a
Change in Control.
NOW,
THEREFORE,
in
consideration of the foregoing, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto
agree as follows:
AGREEMENT
1. Definitions.
For
purposes hereof, the following terms shall have the following
meanings:
"Affiliate"
shall
mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under direct or indirect common control
with such
Person. A Person shall be deemed to control another Person for purposes
of this
definition if such Person possesses, directly or indirectly, the power
(i) to
vote the securities or other ownership interests having ordinary voting
power to
elect a majority of the Board of Directors of a corporation or other
Persons
performing similar functions for any other type of Person, or (ii) to
direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract, as general partner,
as
trustee or otherwise.
"Annual
Base Salary"
shall
mean Executive's base salary in effect immediately preceding Executive's
Qualifying Termination, including all amounts of Executive's base salary
that
are deferred under the qualified and non-qualified benefit plans of the
Company
or any other agreement or arrangement.
"Board"
shall
mean the Board of Directors of the Company.
"Cause"
shall
mean, as reasonably determined by the Company's Board of Directors:
(i) Executive's conviction of, or plea of no contest with respect to, any
felony, or any other crime involving moral turpitude; (ii) Executive's
conduct
that results in or is reasonably likely to result in material harm to
the
business or reputation of the Company and, if capable of cure, Executive
has not
cured such conduct within 60 days following receipt of written notice
by the
Board; (iii) Executive's material violation of any contract or agreement
between
Executive and Company, including but not limited to this Agreement, or
any
policy of the Company applicable to Executive; or (iv) Executive knowingly
and
deliberately acting in a manner contrary to express lawful and reasonable
limitations or instructions imposed on Executive by the Board or the
Chief
Executive Officer.
"Change
in Control"
of the
Company means the occurrence of any one of the following events:
(a) within
the meaning of Section 13(d) of the Securities Exchange Act of 1934,
any person
or group becomes a beneficial owner, directly or indirectly, of securities
of
the Company representing 35% or more of the combined voting power of
the
Company's then outstanding securities, without the prior approval of
the
Company;
(b) an
election of directors of the Company not in accord with the recommendations
of
the majority of the directors of the Company who were in office before
the
pending election;
(c) the
stockholders of the Company approve an agreement to merge or consolidate,
or
otherwise reorganize, with or into one or more entities which are not
subsidiaries, as a result of which less than 50% of the outstanding securities
of the surviving or resulting entity are, or are to be, owned by former
stockholders of the Company (excluding from the term "former stockholders"
a
stockholder who is, or as a result of the transaction in question, becomes
an
"affiliate," as that term is used in the Securities Exchange Act of 1934
and the
rules promulgated thereunder, of any party to such merger, consolidated
or
reorganization); or
(d) the
stockholders of the Company approve the sale of substantially all of
the
Company's business, assets, or both (in one transaction or a series of
related
transactions) to a person or entity, which is not a subsidiary.
"Code"
shall
mean the Internal Revenue Code of 1986, as amended.
"Disability"
shall
mean a legal, physical or mental incapacity for a period of at least
60 days
(whether or not consecutive) in any period of 365 consecutive days, which
results in Executive's absence from work or inability to discharge the
essential
functions of Executive's position, with or without reasonable
accommodation.
"ERISA"
shall
mean the Employee Retirement Income Act of 1974, as amended.
"Good
Reason"
shall
include any of the following:
(a) a
reduction in Executive's salary as in effect on the date of a Change
in
Control;
(b) refusal
by the Company (or any successor operation) to allow Executive to participate
in
its benefit programs (including welfare plans, retirement plans, disability
plans, leave programs and educational reimbursement programs) provided
by the
Company to its employees, in accordance with terms of the applicable
plans;
(c) Executive’s
incentive opportunity is reduced materially relative to other executives
of
comparable responsibility, title or stature.
(d) a
significant reduction of Executive's duties, title, position or responsibilities
that is effected without Executive's written consent; or
(e) a
required relocation of Executive's residence of more than 35 miles from
the
location of Executive's residence immediately before the Change in
Control.
Notwithstanding
the foregoing, Executive must provide the Company (or any successor operation)
with advance written notice of the Company's conduct giving rise to Good
Reason
within 30 days following the occurrence of such conduct and not less
than 30
days before the proposed date of such resignation for Good Reason (the
"Cure
Period") and during the Cure Period, Company may attempt to rescind or
correct
the matter giving rise to Good Reason. Only if such notice is given and
Company
does not rescind or correct the matter giving rise to Good Reason during
the
Cure Period may Executive terminate his employment for Good Reason.
"Person"
shall
mean any individual, partnership, joint venture, firm, company, corporation,
association, trust or other enterprise or any government or political
subdivision or any agent, department or instrumentality thereof.
"Qualifying
Termination"
shall
mean (i) a termination by Executive of Executive's employment with
Company for
Good Reason within two years after the occurrence of a Change in Control,
or
(ii) a termination of Executive's employment without Cause by Company
within two
years after the occurrence of a Change in Control. Neither a termination
of
Executive's employment due to Disability nor a termination of Executive's
employment due to death shall constitute a Qualifying Termination.
"Severance
Amount"
shall
mean the amount determined under Section 4.1.
"Severance
Payment Date"
shall
mean the date that is 30 days following the Qualifying Termination; provided,
however, that if Executive is reasonably determined by Company to be
a
"specified employee" within the meaning of Section 409A(a)(2)(b)(i) of
the Code,
the Severance Payment Date shall be the date that is six months after
the
Qualifying Termination.
"Welfare
Benefits"
shall
mean benefits that are provided pursuant to a plan described in Section
1.409A-1(a)(5) of the Proposed Treasury Regulations or any successor
thereto.
2. Administration.
2.1 This
Agreement shall be interpreted and administered by the Compensation Committee
of
the Board (the "Committee").
2.2 The
Committee shall have the exclusive power, subject to and within the limitations
of the express provisions of this Agreement, to interpret this Agreement
and to
make factual findings and determinations and take such action in connection
with
the Agreement as it, in its sole discretion, deems appropriate. The Committee's
determination shall be binding and conclusive on all parties, and the
Committee
shall not be liable for any action or determination made in good faith
with
respect to this Agreement.
3. Payment
of Accrued Compensation upon a Qualifying Termination.
If a
Qualifying Termination occurs, Executive shall immediately be paid all
earned
and accrued salary due and owing to Executive, any benefits then due
under any
plans of Company in which Executive is a participant, any accrued and
unpaid
vacation pay and any appropriate business expenses incurred by Executive
in
connection with his or her duties, all to the date of termination (collectively,
"Accrued
Compensation").
Executive shall also be entitled to the severance compensation described
in
Section 4. Deferred compensation, whether qualified or nonqualified,
shall be
paid, if at all, in accordance with the applicable plan. Any annual bonus
earned
in the calendar year in which the Qualifying Termination occurs shall
be deemed
paid pursuant to Sections 4.1 and 4.2, and Accrued Compensation shall
not
include any bonus amount.
4. Severance
Compensation.
Subject
to Section 4.6, Executive shall be entitled to the following upon a Qualifying
Termination under the conditions set forth below:
4.1 Severance
Payment.
The
Company shall pay to Executive severance compensation in an aggregate
amount
equal to [2.5] [2.0] [1.5] [1.0] times the sum of:
(a) Executive's
Annual Base Salary, plus
(b) the
highest annual bonus, if any, paid to Executive over the preceding two
calendar
years, plus
(c) the
maximum annual Company matching contribution to the Company's 401(k)
plan that
would otherwise be made to Executive's account for the plan year in which
the
Qualifying Termination occurs, calculated without regard to Executive's
contribution or limits imposed under the Code, plus
(d) Executive's
annual car allowance, if any, in effect as of the Qualifying
Termination.
Such
aggregate amount includes, by virtue of Subsection (b), any annual bonus
earned
by Executive in the calendar year in which the Qualifying Termination
occurs,
and no separate bonus payment shall be made.
4.2 Computation
and Payment of Severance Amount.
The
Severance Amount shall be paid to Executive in a lump sum on the Severance
Payment Date. The Severance Amount shall be paid without prejudice
to
Executive's right to receive all Accrued Compensation. The Severance
Amount
shall be paid irrespective of Executive's employment status with any
other
organization or self-employment; provided, however, that if Executive
should
violate the terms of the general release of claims at Exhibit
A,
Company
shall be under no further obligation to continue the payments or benefits
hereunder.
4.3 Certain
Welfare Benefits.
4.3.1 If
Executive timely elects to continue group health coverage as provided
under the
applicable provisions of the Consolidated Omnibus Budget Reconciliation
Act of
1985 (COBRA), then to the extent that such benefits constitute Welfare
Benefits
the Company shall pay that portion of the COBRA premiums such that
Executive's
cost for such continuation coverage shall equal the Executive's share
of the
premiums for Executive's group health coverage as of the Qualifying
Termination,
if any. The benefits provided in this Section 4.3.1 shall continue
until the
earlier of (i) [2.5] [2.0] [1.5] [1.0] years after the first day of the
first month following the Qualifying Termination, or (ii) Executive becomes
eligible for reasonably comparable benefits under another employer's
group
health plan.
4.3.2 The
Company shall continue Executive's term life insurance coverage at the
level in
effect on the Qualifying Termination, or obtain similar coverage at the
Company's expense, for a period of [2.5] [2.0] [1.5] [1.0] years following
the
Qualifying Termination, provided that Executive must, before the due
date for
such costs, pay to the Company or to the life insurance carrier, as applicable,
all premium costs which are due before the Severance Payment Date, and,
on the
Severance Payment Date, the Company will reimburse Executive for all
costs so
paid; and provided further that if the premiums of such life insurance
coverage
are increased for any reason, such coverage shall be reduced to the level
required to maintain the same premium rates as in effect on the Qualifying
Termination.
Neither
this Section 4.3 nor any other provision of this Agreement shall be interpreted
so as to reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now
or
hereafter, under any benefit, incentive, retirement, stock option, stock
bonus,
stock purchase plan, or any employment agreement or other plan or
arrangement.
4.4 Equity
Grants.
All
outstanding options granted by Company to Executive shall become 100%
vested and
immediately exercisable, and all restrictions shall lapse with respect
to all
outstanding grants of restricted stock or other awards held by Executive.
Executive shall be responsible for any withholding amount as provided
in Section
9.2.
4.5 Extension
of Stock Options.
Each
stock option issued to Executive under the Restated and Amended 1994
Stock
Option Plan (the "1994 Plan") shall remain exercisable until the later
of
(i) the end of the calendar year in which it would otherwise terminate
based on the provisions contained in the applicable stock option agreement
and
the 1994 Plan as of the date of grant (the "Existing Termination Date");
and
(ii) the 15th day of the third month following the Existing Termination
Date; provided that, if such option is not exercisable on the later of
such
dates because an exercise of the option would violate applicable securities
laws, then the option shall remain exercisable for 30 days after the
first date
that the exercise of the stock option would no longer violate applicable
securities laws. Notwithstanding the foregoing, no such stock option
may be
exercised after the applicable original Option Termination Date (as defined
in
the 1994 Plan).
4.6 Condition
to Payment of Severance Compensation.
Notwithstanding anything in this Agreement to the contrary, the Company's
obligation to provide the benefits set forth in this Section 4 is expressly
conditioned on Executive's execution and timely delivery, without revocation,
of
a full general release of claims (excluding claims for amounts payable
under
this Agreement), substantially in the form of Exhibit
A
attached
hereto. Delivery of such general release shall not be considered timely,
and
Executive's entitlement to the benefits set forth in this Section 4 shall
be
extinguished, if not made by the later of (i) 30 calendar days after the
date of a Qualifying Termination, or (ii) 21 days after Executive's receipt
of the final form general release to be executed.
5. Excise
Tax Limitation.
5.1 Gross-Up
Payment.
If it
is determined that any payment or distribution of any type to or for
the benefit
of Executive, by Company, any Affiliate, any Person who acquires ownership
or
effective control of Company or ownership of a substantial portion of
Company's
assets (within the meaning of Section 280G of the Code and the regulations
thereunder) or any affiliate of such Person, whether paid or payable
or
distributed or distributable pursuant to the terms of this Agreement
or
otherwise (the "Company
Payments"),
is or
will be subject to the excise tax imposed by Section 4999 of the Code
(the
"Excise Tax"), then Company shall pay to or for the benefit of Executive
an
additional amount (the "Gross-up
Payment")
such
that the net amount retained by Executive, after deduction of any Excise
Tax on
the Company Payments and any U.S. federal, state, and local income or
employment
tax upon the Gross-up Payment, but before deduction for any U.S. federal,
state,
and local income or employment tax on the Company Payments, shall be
equal to
the Company Payments after taking into account any other payments to
which
Executive may be entitled by written agreement or otherwise as reimbursement
for
the Excise Tax resulting from the Company Payments. The Company shall
pay the
Gross-Up Payment to Executive on the Severance Payment Date. For purposes
of
calculating the Gross-Up Payment, Executive shall be deemed to pay income
taxes
at the highest applicable marginal rate of federal, state or local income
taxation for the calendar year in which the Gross-Up Payment is to be
made.
5.2 Determination
by Accountant.
All
mathematical determinations, and all determinations as to whether any
of the
Company Payments are "parachute payments" (within the meaning of Section
280G of
the Code), including determinations as to whether a Gross-Up Payment
is required
and the amount of the Gross-Up Payment, and the assumptions to be utilized
in
arriving at such determinations, shall be made in writing at Company's
expense
by an independent nationally recognized accounting firm selected by Company
(the
"Accounting
Firm").
If
the Accounting Firm determines that no Excise Tax is payable by Executive,
it
shall furnish Executive and Company with a written statement that such
Accounting Firm has concluded that no Excise Tax is payable (including
the
reasons therefor) and that Executive has substantial authority not to
report any
Excise Tax on his or her federal income tax return. Any determination
by the
Accounting Firm shall be binding upon Company and Executive, absent manifest
error.
6. Employment
Status.
This
Agreement does not constitute a contract of employment or impose on
Executive or
Company any obligation to retain Executive, or to change the status
of
Executive's employment. Executive acknowledges that Executive is an
"at-will"
employee of Company, and that Company may terminate Executive's employment
at
any time, with or without cause and with or without notice.
7. Nature
of Rights.
Nothing
in this Agreement shall prevent or limit Executive's continuing or future
participation in any benefit, bonus, incentive or other plan or program
provided
by the Company and for which Executive may qualify, nor shall anything
herein
limit or reduce such rights as Executive may have under any other agreements
with Company. Amounts which are vested benefits or which Executive is
otherwise
entitled to receive under any plan or program of the Company shall be
payable in
accordance with such plan or program, except as explicitly modified by
this
Agreement.
8. Full
Settlement.
The
Company's obligation to provide the payments and benefits provided for
in this
Agreement and otherwise to perform its obligations hereunder shall not
be
affected by any set-off, counterclaim, recoupment, defense or other claim,
right
or action which the Company may have against Executive or others. In
no event
shall Executive be obligated to seek other employment or take any other
action
by way of mitigation of the amounts payable to Executive under any of
the
provisions of this Agreement and such amounts shall not be reduced whether
or
not Executive obtains other employment except as set forth in Section
4.4 with
respect to certain welfare benefits.
9. Miscellaneous.
9.1 Severability.
Should
a court or other body of competent jurisdiction determine that any provision
of
this Agreement is excessive in scope or otherwise invalid or unenforceable,
such
provision shall be adjusted rather than voided, if possible, so that
it is
enforceable to the maximum extent possible.
9.2 Tax
Withholding.
All
compensation and benefits to Executive hereunder shall be reduced by
all
federal, state, local and other withholdings and similar taxes and payments
required by applicable law. Executive shall make appropriate provisions
for
paying the withholding amount associated with the lapsing of restrictions
on
restricted stock and other awards provided for in Section 4.4.
9.3 Entire
Agreement; Modification.
This
Agreement represents the entire agreement between the parties and supersedes
any
other prior agreements between the parties, written or oral, with respect
to the
subject matter covered hereby[, including the Salary Continuation Agreement
between the parties dated _____________]. This Agreement may be amended,
modified, superseded or canceled, and any of the terms hereof may be
waived,
only by a written instrument executed by each party hereto or, in the
case of a
waiver, by the party waiving compliance. The failure of any party at
any time or
times to require performance of any provision hereof shall not affect
such
party's right at a latter time to enforce the same. No waiver by any
party of
the breach of any provision contained in this Agreement, whether by conduct
or
otherwise, in any one or more instances, shall be deemed to be or construed
as a
further or continuing waiver of any such breach or of any other term
of this
Agreement.
9.4 Source
of Funds.
Amounts
payable to Executive under this Agreement shall be from the general funds
of the
Company. Executive's rights to unpaid amounts under this Agreement shall
be
solely those of an unsecured creditor of the Company.
9.5 Governing
Law.
Subject
to ERISA, this Agreement shall be governed and interpreted pursuant to
the
substantive and procedural laws of the State of California applicable
to
agreements made and to be performed entirely within such state.
9.6 Legal
Fees.
Each
party shall be responsible for payment of all legal fees and expenses
which the
party may incur as a result of any contest (including as a result of
any contest
by Executive about the amount of any payment pursuant to this Agreement)
by the
Company, Executive or others of the validity or enforceability of, or
liability
under, any provision of this Agreement or any guarantee of performance
thereof.
9.7 Successors
and Assigns.
This
Agreement shall be binding upon, and shall issue to the benefit of, Company's
successors and assigns and Executive's heirs and assigns.
9.8 Nontransferability
by Executive.
Neither
this Agreement nor any right or interest hereunder shall be assignable
or
transferable by Executive, Executive's beneficiaries or legal representatives,
except by will or by the laws of descent and distribution.
9.9 Section
409A Compliance.
The
parties intend this Agreement to comply with the requirements of Section
409A of
the Code and the regulations and guidance promulgated thereunder, and
the
Agreement shall be interpreted in a manner consistent with that
intention.
9.10 Claims
Procedures.
Exhibit
B
hereto
sets forth the procedures governing claims for benefits under this
Agreement.
9.11 Dispute
Resolution.
After
exhaustion of the claims procedures described in Section 9.10, all claims,
demands, causes of action or controversies past—present or future—that Executive
may have against the Company, its officers, directors, employees, independent
contractors or agents—past, present or future—or that the Company may have
against Executive, shall be resolved by final and binding arbitration
pursuant
to the provisions of Exhibit
C
hereto,
except as the Parties may otherwise agree in writing. PLEASE READ CAREFULLY.
BY
SIGNING THIS AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO FILE A LAWSUIT
IN A
COURT OF LAW AND TO HAVE YOUR CASE HEARD BY A JUDGE OR JURY OR
BOTH.
The
next page is the signature page.
IN
WITNESS WHEREOF,
the
parties have signed and delivered this Agreement as of this ____ day
of
___________, 2006.
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Acknowledged
& Agreed,
________________________________
[INSERT
NAME OF EXECUTIVE]
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XXXXX
PETROLEUM COMPANY
By:
Its:
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