CHANGE-IN-CONTROL EXECUTIVE SEVERANCE AGREEMENT
EXHIBIT 10
CHANGE-IN-CONTROL EXECUTIVE SEVERANCE AGREEMENT
This Change-in-Control Severance Agreement (this (“Agreement”), dated and effective September
4, 2007, is between Panhandle Oil and Gas Inc., an Oklahoma corporation (the “Company”), and
(the “Executive”).
Statement of Purpose
The Company desires, for its continued success, to have the benefit of services of experienced
management personnel like the Executive. The Board of Directors of the Company therefore believes
that it is in the best interest of the Company that, in the event of any prospective change in
control of the Company, the Executive be reasonably secure in his employment and position with the
Company, so that the Executive can exercise independent judgment as to the best interest of the
Company and its shareholders, without distraction by any personal uncertainties or risks regarding
the executive’s continued employment with the Company created by the possibility of a
change-in-control of the Company. The Board believes that this Agreement will create an
environment that is best suited to maximizing shareholder value and retaining executive loyalty and
focus when they are needed most and will further align the interests of Executive with the
interests of the Company’s shareholders.
Agreement
In consideration of the statements made in the Statement of Purpose and the mutual agreements
set forth below, the Company and the Executive agree as follows:
1. Protection. In order to protect Executive against the possible consequences of a
“Change-in-Control” of the Company (as defined in Section 2) and to induce Executive to remain in
the employ of the Company and in consideration of Executive agreeing to remain in the employ of the
Company subject to the terms and conditions set forth below, this Agreement sets forth the
severance benefits which the Company agrees will be provided to Executive in the event his
employment with the Company is terminated on or subsequent to a Change-in-Control of the Company
under the circumstances described below.
2. Definitions. For purposes of this Agreement, the following capitalized terms shall
have the following meanings:
(a) “Board” means the Board of Directors of the Company.
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(b) “Cause” means:
(i) the willful and continued failure of the Executive to perform substantially the
Executive’s duties with the Company (other than a failure resulting from incapacity due to physical
or mental illness), within a reasonable period of time after a written demand for substantial
performance is delivered to the Executive by the Board which demand specifically identifies the
manner in which the Board believes that the Executive has not substantially performed the
Executive’s duties; or
(ii) the willful engaging by the Executive in illegal conduct, gross misconduct or a clearly
established violation of the Company’s written policies and procedures, in each case, which is
materially and demonstrably injurious to the Company, monetarily or otherwise.
For purposes of this paragraph (b), no act or failure to act, on the part of the Executive, will be
considered “willful” unless done, or omitted to be done, by the Executive not in good faith and
without reasonable belief that the Executive’s action or omission was in the best interests of the
Company. Any act, or failure to act, based on authority given pursuant to a resolution duly
adopted by the Board or based on the advice of counsel for the Company will be conclusively
presumed to be done, or omitted to be done, by the Executive in good faith and in the best
interests of the Company.
(c) “Change-in-Control” means the occurrence of any one or more of the following:
(i) any “person” (as such term is used in Section 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) (other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company) is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company
representing 30% or more of the total voting power represented by the Company’s then outstanding
Voting Securities; or
(ii) during any period of two consecutive years, individuals who at the beginning of such
period constitute the Board, and any new director, whose election by the Board or nomination for
election by the Company’s shareholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any reason to constitute
a majority of the Board, or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with
any other corporation, other than a merger or consolidation that would result in the Voting
Securities of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the surviving entity) at
least 80% of the total voting power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or
an agreement for the sale or disposition by the Company (in one transaction or a series of
transactions) of all or substantially all of the Company’s assets.
(d) “Code” means the Internal Revenue Code of 1986, as amended from time to time.
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(e) “Date of Termination” means (i) if Executive’s employment is terminated by the Company for
“Cause,” the date specified in the Notice of Termination, and (ii) if Executive’s employment is
terminated for any other reason, the date on which a Notice of Termination is given.
(f) “Effective Date” means September 4, 2007.
(g) “Good Reason” shall include:
(i) the assignment to Executive of any position which results, in the aggregate, in a material
reduction in Executive’s rank, authority, duties, status, or responsibilities as an officer of the
Company or Executive is assigned duties and obligations inconsistent with his position with the
Company;
(ii) Executive’s annual base salary is reduced below the higher of Executive’s base salary in
effect immediately before the Change-in-Control or Executive’s base salary in effect at any time
after the Change-in-Control;
(iii) Executive is removed from or denied participation in incentive plans, benefit plans, or
perquisites generally provided by the Company to other executives with a comparable level of
responsibility, title or stature;
(iv) a failure to provide (or a reduction in, if previously provided) incentive compensation
opportunities, benefits or perquisites that are provided other executives with comparable
responsibility, title or stature;
(v) the failure by the Company to continue to provide the Executive with benefits similar in
all material respects to those enjoyed by the Executive under any Plan in which the Executive was
participating at any time within three months before the Change-in-Control, the taking of action by
the Company which would directly or indirectly materially reduce any of such benefits or deprive
the Executive of any material fringe benefit enjoyed by the Executive at any time three months
before the Change-in-Control, or the failure by the Company to provide the Executive with the
number of paid vacation days to which the Executive is entitled on the basis of years of service
with the Company in accordance with the Company’s normal vacation policy in effect at any time
within three months before the Change-in-Control.
(vi) the Company’s principal officers are moved to a location more than 25 highway miles from
its current location or Executive is required to be based anywhere other than the Company’s
principal executive offices;
(vii) the failure of the Company to obtain a satisfactory agreement from any successor to
assume and agree to perform this Agreement satisfactory in form and substance to Executive;
(viii) any purported termination of the Executive’s employment which is not effected pursuant
to a Notice of Termination satisfying its requirements, and for purposes of this Agreement, no such
purported termination shall be effective; or
(ix) any material breach of this Agreement by the Company not described in paragraphs (i)
through (viii) above.
(h) “Notice of Termination” means a written and dated notice which indicates the Date of
Termination (not earlier than the date on which the notice is provided), and which indicates the
specific termination provision in this Agreement relied on and which sets forth in reasonable
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detail the facts and circumstances claimed to provide a basis for termination of Executive’s
employment under the provision so indicated.
(i) “Plan” means any bonus, incentive compensation, retirement, stock ownership or purchase,
pension, deferred compensation, or welfare benefits plan, policy, practice, program or arrangement
of (including any separate contract or agreement with) the Company for its employees.
(j) “Voting Securities” means the Company’s Class A Common Stock, par value $0.01666 per
share, and any other securities of the Company that vote generally in the election of directors.
3. Change-in-Control. No benefits shall be payable hereunder unless there shall have
been a Change-in-Control of the Company, and Executive’s employment by the Company shall have been
terminated in accordance with Section 5 below.
4. Rights Provided By Agreement. This Agreement does not constitute a guarantee of
continued employment but instead provides for certain rights and benefits in the event Executive’s
employment with the Company terminates under the circumstances provided herein.
5. Termination Following Change-in-Control.
(a) Severance Payment. If, on the occurrence of a Change-in-Control or, within two
(2) years following the occurrence of a Change-in-Control, (i) Executive’s employment with the
Company is terminated by the Company other than for Cause or Executive’s death, or (ii) Executive
resigns for Good Reason, then the Company shall pay to Executive as severance pay in a lump sum, in
cash, on or before the fifth day following the Date of Termination, an amount equal to two (2)
times the average of the compensation paid to Executive during the two (2) calendar years preceding
the Change-in-Control (or the annual average for any shorter period, if applicable). For this
purpose, compensation shall include the sum of Executive’s base salary, bonuses and contributions
made by the Company to its ESOP Plan on Executive’s behalf. The bonus used in determining
Executive’s compensation shall not in any event be less than Executive’s targeted bonus for the
calendar year in which the Change-in-Control occurs (or if not yet determined for that calendar
year in which the Change-in-Control occurs, the Executives’ targeted bonus for the preceding
calendar year. In addition, the Company shall promptly reimburse Executive each month for all
costs incurred by Executive of purchasing COBRA continuing coverage (as described in Section 4980B
of the Code) for Executive and all of Executive’s dependents following Executive’s Date of
Termination for so long as Executive qualifies for such continuing coverage.
(b) Notice of Termination. Any termination of Executive’s employment by Executive for
Good Reason shall be communicated by Notice of Termination to the Company. Executive shall not be
deemed to have been terminated for Cause unless and until there shall have been delivered to him a
copy of a Notice of Termination from the Board, after reasonable notice to Executive and an
opportunity for Executive, together with his counsel, to be heard before the Board, finding that,
in the good faith opinion of the Board, Executive was guilty of conduct set forth above in clauses
(i) or (ii) in Section 5(a) and specifying the particulars thereof in detail.
6. Term of Agreement. This Agreement will continue in effect until the earlier of:
(a) The termination or cessation of the Executive’s employment with the Company before a
Change-in-Control; or
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(b) The Company’s performance of all of its obligations, and the Executive’s receipt of all of
the payments and benefits to which he is entitled, under this Agreement after a Change-in-Control.
7. Certain Additional Payments By the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution from the Company to the Executive or for the
Executive’s benefit, whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise but determined without regard to any additional payments required
under this Section 7 (a “Payment”), would be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred to as the “Excise
Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”)
in an amount such that after payment by Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the sum of (i) the Excise Tax
imposed upon the Payments; plus (ii) an amount equal to the product of any deductions disallowed
for federal, state, or local income tax purposes because of the inclusion of the Gross-Up Payment
in the Executive’s adjusted gross income multiplied by the highest applicable marginal rate of
federal, state, or local income taxation, respectively, for the calendar year in which the Gross-Up
Payment is to be made.
(b) Subject to the provisions of Section 7(c), all determinations required to be made under
this Section 7, including whether a Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall be made by Ernst & Young LLP or another nationally recognized certified public
accounting firm as may be selected by the Company (the “Accounting Firm”) which shall provide
detailed supporting calculations both to the Company and the Executive within fifteen (15) business
days of the receipt of notice from the Executive that there has been a Payment which would be
subject to the Excise Tax, or such earlier time as is requested by the Company. In the event that
the Accounting Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change-in-Control, the Executive shall appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). The initial Gross-Up Payment, if any, as determined
pursuant to this Section 7(b), shall be paid to the Executive within five (5) days of the receipt
of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the Executive with an opinion that the Executive has
substantial authority not to report any Excise Tax on the Executive’s federal income tax return.
Any determination by the Accounting Firm shall be binding upon the Company and the Executive. 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 7(c) and the Executive thereafter is required to may 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 Executive.
(c) The Executive 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 Executive 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 Executive shall not pay any claim
prior to the expiration of the 30-day period following the date on which the Executive gives
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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 Executive in writing prior
to the expiration of such period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the Company relating to such
claim;
(ii) 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;
(iii) cooperate with the Company in good faith in order effectively to contest such claim; and
(iv) 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 Executive 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 7(c), the
Company shall control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner. The Executive 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 Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such payment to the
Executive, on a interest-free basis and shall indemnify and hold the Executive 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 Executive 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 Executive 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.
(d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to
Section 7(c), the Executive becomes entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company’s complying with the requirements of Section 7(c)) 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 Executive of an amount advanced by
the Company pursuant to Section 7(c), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration of thirty (30) 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.
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8. Mitigation. Executive shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of
any payment provided for in this Agreement be reduced by any compensation earned by Executive as
the result of any other employment, consulting relationship, or other business activity after the
Date of Termination.
9. No Set-0ff. The Company’s obligations under this Agreement are absolute and
unconditional, and not subject to any set-off, counterclaim, recoupment, defense, or other right
that the Company or any affiliate may have against the Executive.
10. Tax Withholding. The Company shall withhold from any payment or benefits under
this Agreement (whether or not otherwise acknowledged under this Agreement) all federal, state,
local, or other taxes as may be legally required to be withheld.
11. Executive’s Legal Expenses. The Company shall pay the Executive an amount equal
to the reasonable legal fees and other expenses incurred in good faith by him in obtaining or
retaining payments and benefits under this Agreement, including all such fees and expenses (if any)
in enforcing, in good faith, any right or benefit provided by this Agreement or in connection with
the contest or defense of any tax audit or proceeding by the Internal Revenue Service to the extent
that Section 3999 of the Code is alleged or claimed to apply to any payment or benefit provided
under this Agreement. The Company will be obligated under the preceding sentence even if the
Executive is not successful in any enforcement claim or counterclaim by him, or in any such tax
contest or defense, so long as he acted in good faith. The Company shall make any payment required
by this Section 10 within seven (7) days after written notice from the Executive requesting payment
and providing such evidence of the incurrence of those fees and expenses as the Company may
reasonably request.
12. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any benefit, bonus, incentive or other plan or
program provided by the Company or any of its affiliated companies and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the Executive may have
under any agreements with the Company or an of its affiliated companies. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan or program of the
Company or any of its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan or program.
13. Successors and Binding Effect.
(a) Successor Must Assume Agreement. The Company will require 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 to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to perform it if no
such succession had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this Agreement and shall
entitle the Executive to compensation from the Company in the same amount and on the same terms as
the Executive would be entitled to hereunder if the Executive terminated employment for Good Reason
following a Change-in-Control of the Company, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be deemed the date of
termination of employment. As used in this Agreement, “Company” shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operating of law or otherwise.
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(b) Binding Effect. This Agreement shall inure to the benefit of and be enforceable
by the Executive’s personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any amount would still be
payable to the Executive hereunder if the Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the
Executive’s devisee, legatee or other designee or, if there is no such designee, to the Executive’s
estate.
14. Interest. If any amounts due and payable hereunder to Executive are not paid by
the Company or its successor when due, the unpaid amount will bear interest at the per annum rate
equal to twelve percent (12%) (the provision for such interest is not intended to alter, and shall
not be construed as altering, the Company’s obligation to pay, and the Executive’s right to
receive, all payments due hereunder in a timely manner).
15. Miscellaneous.
15.1 Amendment of Agreement. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be binding unless in the form of a writing signed by
the party against whom enforcement of the waiver is sought, and no such waiver shall operate as a
waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver. Except as specifically provided herein, no failure to exercise or any delay in
exercising any right or remedy hereunder shall constitute a waiver thereof.
15.2 Severability. If any provision (or portion thereof) of this Agreement shall be
held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the
remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore,
to the fullest extent possible, the provisions of this Agreement (including, without limitation,
each portion of this Agreement containing any provision held to be invalid, void, or otherwise
unenforceable, that is not itself invalid, void, or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, void, or unenforceable.
15.3 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Oklahoma applicable to contracts made and to be performed
in such State without giving effect to the principles of conflicts of laws.
15.4 Notices. All notices, requests, consents and other communications hereunder to
any party shall be deemed to be sufficient if contained in a written document: (i) delivered in
person, or (ii)sent by facsimile (with a copy sent by first class mail, postage prepaid), or (iii)
sent by nationally recognized overnight courier service, or (iv) mailed by first class certified or
registered mail, return receipt requested, postage prepaid, addressed to such party at the address
set forth below or such other address as may hereafter be designated on the signature pages of this
Agreement or in writing by such party to the other party.
Notices provided in accordance with this Section 15.4 shall be deemed to have been delivered:
(i) if personally delivered, upon delivery; (ii) if sent by facsimile transmission, upon electronic
confirmation by the sender when received; (iii) if sent by overnight courier service, 24 hours
after deposit with that service; or (iv) if sent by certified or registered mail, return receipt
requested, 48 hours after deposit in the mail.
| To Company: | Panhandle Oil and Gas Inc. |
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Xxxxxxxx Xxxx, XX 00000
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Attention: President
Facsimile: 405.948.2038
Facsimile: 405.948.2038
and
| To Executive: | At Executive’s current home address on file. |
15.5 Specific Performance, Etc. The parties recognize that if any provision of this
Agreement is violated by the Company, the Executive may be without an adequate remedy at law.
Accordingly, in the event of any such violation, the Executive shall be entitled, if the Executive
so elects, to institute proceedings, either in law or at equity, to obtain damages, to enforce
specific performance, to enjoin such violation, or to obtain any relief or any combination of the
foregoing as the Executive may elect to pursue.
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15.6 Counterparts. This Agreement may be executed in counterparts, each of which shall
for all purposes be deemed to be an original but all of which together shall constitute one and the
same agreement. Only one such counterpart signed by the party against whom enforceability is sought
needs to be produced to evidence the existence of this Agreement.
15.7 Waiver and Amendment. No term or condition of this Agreement shall be deemed waived
other than by a writing signed by the party against whom or which enforcement of the waiver is
sought. Without limiting the generality of the preceding sentence, a party’s failure to insist
upon the other party’s strict compliance with any provision of this Agreement or to assert any
right that a party may have under this Agreement shall not be deemed a waiver of that provision or
that right. Any written waiver shall operate only as to the specific term or condition waived
under the specific circumstances and shall not constitute a waiver of that term or condition for
the future or a waiver of any other term or condition. No amendment or modification of this
Agreement shall be deemed effective unless stated in a writing signed by the parties hereto.
15.8 Entire Agreement. This Agreement, including the Statement of Purpose, contains
the parties’ entire agreement regarding the subject matter of this Agreement and supersedes all
prior agreements and understandings between them regarding that subject matter. The parties have
made no agreements, representations or warranties regarding the subject matter of this Agreement
that area not set forth in this Agreement.
15.9 Headings. All headings in this Agreement are for convenience only and are not
intended to affect the meaning of any provision hereof.
In Witness Whereof, the parties have executed and delivered this Agreement as of the Effective
Date.
| “COMPANY” | PANHANDLE OIL AND GAS INC. | |||||||
| By: | ||||||||
| E. Xxxxx Xxxxxxxx, Chairman of the Board |
||||||||
| “EXECUTIVE” | ||||||||
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