CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT (the "Agreement") made as of the 1st of March, 2001,
between RGC Resources, Inc. ("the Corporation") and Xxxx X. X'Xxxxxx
("Executive"),
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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) three years from the date of a Change in Control; or
(iii) March 1, 2006, 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
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 inconsistent with his positions, duties,
responsibilities and status with the Corporation immediately prior to a Change
in Control;
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(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.
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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 Corporation, 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
(b) shall not be reduced, offset or subject to recovery by the Corporation or
the Corporation's Successor by reason of any compensation earned by the
Executive as the result of employment 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
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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
employer; 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 Corporation 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 from 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 of 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 the
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
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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 of 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. Xxxx X. X'Xxxxxx
By: s/Xxxx X. Xxxxxxxxxx, III s/Xxxx X. X'Xxxxxx
Its: President and CEO
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