Exhibit 10.1
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT (the "Agreement") made as of the 1st of May, 2005, between
RGC Resources, Inc. ("the Corporation") and Xxxxxx X. Xxxx ("Executive"),
- W I T N E S S E T H -
WHEREAS the Corporation desires for the Executive to be able to perform his
executive duties and functions on an impartial and objective basis in the event
of activities preceding, associated with, or resulting from a change in control
of the Corporation as hereinafter defined ("Change in Control");
NOW, THEREFORE, the parties agree as follows:
1. TERM. This Agreement is effective as of the date hereof and shall
terminate, except to the extent that any obligation remains unpaid as of such
time, upon the earliest of the following:
(i) the termination of the Executive's employment with the
Corporation prior to a Change in Control;
(ii) two years from the date of a Change in Control; or
(iii) May 1, 2010, but only if no Change in Control has occurred as
of such date.
2. CHANGE IN CONTROL. For purposes of the Agreement, a Change in Control
shall be deemed to have occurred if (i) any person (individual, corporation,
partnership or other entity) is or becomes the beneficial owner, directly or
indirectly, of securities of the Corporation representing 50 percent or more of
the combined voting power of the outstanding securities ordinarily (and apart
from rights accruing under special circumstances) having the right to vote at
elections of directors ("Voting Securities"), (ii) in the event that following a
merger, recapitalization, reorganization, consolidation or sale of assets by the
Corporation, or any combination thereof, any person becomes the beneficial
owner, directly or indirectly, of 50% or more of the Voting Securities of the
surviving entity, or (iii) the shareholders of the Corporation
shall liquidate or sell substantially all of its assets. The first day upon
which there exists a Change in Control shall be referred to herein as the
"Operative Date."
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If a Change in Control
shall have occurred, the Executive will be entitled to the benefits provided in
Paragraph 4 hereof if, within the two-year period beginning on the Operative
Date, the Executive's employment with the Corporation (hereinafter defined) is
terminated unless such termination is (a) because of his death, (b) by the
Corporation for Cause or Disability, or (c) by the Executive other than for Good
Reason, all as hereinafter more particularly defined.
(i) DISABILITY. If, as a result of the Executive's incapacity
due to physical or mental illness, he shall have been absent from his duties
with the Corporation on a full-time basis for six (6) months and within thirty
(30) days after written notice of termination is given he shall not have
returned to the full-time performance of his duties, the Corporation may
terminate the Agreement for "Disability."
(ii) CAUSE. The Corporation may terminate the Executive's
employment for Cause. For purposes of the Agreement, the Corporation shall have
"Cause" to terminate the Executive's employment hereunder upon (A) the willful
and continued failure by the Executive to substantially perform his duties with
the Corporation (other than any such failure resulting from his incapacity due
to physical or mental illness) after a demand for substantial performance is
delivered to the Executive by the Corporation which specifically identifies the
manner that the Executive has not substantially performed his duties or (B) the
willful engaging by the Executive in gross misconduct materially and
demonstrably injurious to the Corporation. For purposes of this paragraph, no
act, or failure to act, on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by him not in good faith and without
reasonable belief that his action or omission was in the best interests of the
Corporation. Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for Cause based upon clauses (A) or (B) above unless and
until there shall have been delivered to him a copy of a resolution, duly
adopted by the affirmative vote of not less than two-thirds of the entire
membership of the Board at meeting of the Board called and held for the purpose
(after reasonable notice to the Executive and an opportunity for him, together
with his counsel, to be heard before the Board), finding that in the good faith
opinion of the Board the Executive was guilty of conduct set forth above in
clauses (A) or (B) and specifying the particulars thereof in detail.
(iii) GOOD REASON. The Executive may terminate his employment
for Good Reason within ninety (90) days of the occurrence of any of the events
specified below. For purposes of the Agreement, "Good Reason" shall mean:
(A) Without the Executive's express written consent,
the assignment to him of any duties materially inconsistent with his duties and
responsibilities with the Corporation immediately prior to a Change in Control;
(B) A reduction by the Corporation in the Executive's
annual base compensation below his total base compensation applicable to the 12
months preceding the Operative Date or as increased after such date;
(C) The failure by the Corporation to provide the
Executive with benefits whose aggregate value is at least as favorable as the
aggregate value of benefits enjoyed by him under any thrift, incentive or
compensation plan, or any pension, life insurance, health and accident or
disability plan in which is he participating at the time of a Change in Control,
or the taking of any action by the Corporation which would adversely affect his
participation in or materially reduce his benefits under any of such plans at
the time of a Change in Control, unless such reduction relates to a reduction in
benefits applicable to all employees generally;
(D) The failure by the Corporation to provide the
Executive with any other material fringe benefit enjoyed by him at the time of
the Change in Control;
(E) Any purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination satisfying
the requirements of subparagraph (iv) below (and, if applicable, subparagraph
(ii) above) and, for purposes of the Agreement, no such purported termination
shall be effective; or
(F) Breach by the Corporation of its obligations
under Paragraph 5 of this Agreement.
If any of the events occur which would entitle the Executive to
terminate his employment for Good Reason hereunder and he does not so exercise
his right to terminate his employment, any such failure shall not operate to
waive his right to terminate his employment for that or any subsequent action or
actions, whether similar or dissimilar, which would constitute Good Reason.
(iv) NOTICE OF TERMINATION. Any termination by the Corporation
pursuant to subparagraphs (i) or (ii) above or by the Executive pursuant to
subparagraph (iii) above shall be communicated by written Notice of Termination.
For purposes of the Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision in the Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(v) DATE OF TERMINATION. "Date of Termination" shall mean (a)
if the Agreement is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that
the Executive shall not have returned to the performance of his duties on a
full-time basis during such thirty-day period), (b) if his employment is
terminated pursuant to subparagraph (iii) above, the date specified in the
Notice of Termination, and (c) if his employment is terminated for any other
reason, the date on which a Notice of Termination is given.
4. COMPENSATION UPON TERMINATION. Upon termination of the Executive's
employment within twenty-four (24) months following a Change in Control of the
Corporation, unless such termination is because of the Executive's death, or by
the Corporation for Cause or Disability or by the Executive other than for Good
Reason, the Corporation shall pay to the Executive the following:
(i) The Corporation shall pay the Executive his full salary
(whether such salary has been paid by the Corporation or by any of its
subsidiaries) through the Date of Termination at the rate in effect at the time
Notice of Termination is given and all other unpaid amounts, if any, to which
the Executive is entitled as of the Date of Termination under any plan or other
arrangement of the Company, at the time such payments are due;
(A) The Corporation shall pay to the Executive
an amount equal to 1.5 multiplied by the Executive's annualized includable
compensation for the base period, within the meaning of Section 280G(d)(1) of
the Internal Revenue Code of 1986, as amended (the "Code"), provided, however,
that if any of such payment is or will be subject to the excise tax imposed by
Section 4999 of the Code or any similar tax that may hereafter be imposed
("Excise Tax"), such payment shall be reduced to a smaller amount, even to zero,
which smaller amount shall be the largest amount payable under this paragraph
that would not be subject in whole or in part to the Excise Tax after
considering all other payments to the Executive required to be considered under
Sections 4999 or 280G of the Code. Such payment shall be referred to as the
"Severance Payment."
(B) In the event that the Severance Payment is
subsequently determined to be less than the amount actually paid hereunder, the
Executive shall repay the excess to the Corporation at the time that the proper
amount is finally determined, plus interest on the amount of such repayment at
the Applicable Federal Rate. In the event that the Severance Payment is
determined to exceed the amount actually paid hereunder, the Corporation shall
pay the Executive such difference plus interest on the amount of such additional
payment at the Applicable Federal Rate at the time that the amount of such
difference is finally determined.
(C) In the event that the amount of the Severance
Payment exceeds or is less than the amount initially paid, such difference shall
constitute a loan by the Corporation to the Executive, or by the Executive to
the Corporation, as the case may be, payable on the fifth (5th) day after demand
(together with interest at the Applicable Federal Rate).
(D) The amount of any payment provided for in this
subparagraph shall not be reduced, offset or subject to recovery by the Company
or the Company's Successor by reason of any compensation earned by the Executive
as the result of employment by another Corporation after the Date of
Termination, or otherwise.
(ii) The Corporation shall also pay to the Executive all legal
fees and related expenses incurred by the Executive in connection with this
Agreement, whether or not the Executive prevails (including, without limitation,
all such fees and expenses, if any, incurred in contesting or disputing any such
termination or in seeking to obtain or enforce any right or benefit provided by
this Agreement).
(iii) The Corporation shall maintain in full force and effect,
for the Executive's continued benefit until the earlier of (A) the death of the
Executive; (B) the Executive's commencement of full-time employment with a new
Corporation; or (C) twenty-four (24) months following the Operative Date, all
life insurance, medical, health and accident, and disability plans, programs or
arrangements in which the Executive was entitled to participate immediately
prior to the Operative Date, provided that the Executive's continued
participation is possible under the general terms and provisions of such plans
and programs. In the event that the Executive's participation in any such plan
or program is barred, the Company shall arrange to provide the Executive with
benefits substantially similar to those which the Executive is entitled to
receive under such plans and programs.
(iv) The Executive shall not be required to mitigate the
amount of any payment provided under the Agreement by seeking other employment
or otherwise. It is specifically understood that any compensation the Executive
receives from the Corporation or any other person for services rendered prior to
or after termination of employment, such as a payment under any deferred
compensation plan maintained by the Corporation, will not reduce or offset the
benefits to which he is entitled hereunder.
(A) The Agreement shall inure to the benefit of and
be enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, divisees and legatees. If the
Executive should die while any amounts would still be payable to him hereunder
if he had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of the Agreement to his devisee,
legatee, or other designee or, if there be no such designee, to his estate.
5. AGREEMENT BINDING ON SUCCESSORS. The Corporation will require any
successor (whether direct or indirect, by purchase, merger, share exchange,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Corporation, to expressly assume and agree to perform this
Agreement. Failure of the Corporation to obtain such agreement prior to or
simultaneously with a Change of Control shall be a breach of the
Agreement which shall entitle the Executive to terminate his employment for Good
Reason under Paragraph 3(iii) on or after the Operative Date, except that, for
purposes of implementing the foregoing, the date of his Notice of Termination
shall be deemed the Date of Termination.
6. NOTICE. For the purposes of the Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given on the date hand delivered or the date mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed to the Executive at his residence address and to the Corporation
directed to the attention of the Chief Executive Officer of the Corporation, or
to such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
7. MODIFICATION AND WAIVER. No provisions of the Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Corporation. No waiver by
any party hereto at any time or the breach by the other party hereto or of
compliance with any condition or provision of the Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements of
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in the Agreement. The validity, interpretation, construction and
performance of the Agreement shall be governed by the laws of the Commonwealth
of Virginia.
8. VALIDITY. The invalidity or unenforceability of any provisions of
the Agreement shall not affect the validity or enforceability of any other
provisions of the Agreement and such other provisions shall remain in full force
and effect.
9. COUNTERPARTS AND GOVERNING LAW. The Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument. The Agreement shall
be governed by the laws of the Commonwealth of Virginia, excepting its
principles of conflict of laws.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the
date first above written.
RGC Resources, Inc. Xxxxxx X. Xxxx
By: s/Xxxx X. Xxxxxxxxxx, III s/Xxxxxx X. Xxxx
Its: Chairman/CEO
