EXHIBIT 10.3
CHANGE OF CONTROL AGREEMENT
This change of control agreement ("Agreement") is entered into effective as
of _________, ____, by and between Canaan Energy Corporation ("Canaan") and
_____________ ("Employee").
WHEREAS, Canaan desires to retain certain key employee personnel and,
accordingly, the Board of Directors of Canaan has approved Canaan entering into
a change of control agreement with Employee in order to encourage Employee's
continued service to Canaan.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, Canaan and Employee agree as follows:
1. DEFINITIONS.
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(a) "Change in Duties" shall mean the occurrence, within two (2) years
after the date upon which a Change of Control occurs, of any one or
more of the following:
(i) a reduction in Employee's annual salary from the level in effect
immediately prior to the Change of Control;
(ii) failure of Canaan or any of its successors or assigns to provide
Employee with an annual bonus, incentive compensation or other
employee benefits (including but not limited to medical, dental,
life insurance, accidental, death and long-term disability
plans) that are materially consistent with such annual bonuses,
incentive compensation or other employee benefits provided by
Canaan or any of its successors or assigns to employees with
comparable duties;
(iii) a significant adverse alteration in the nature or status of
Employee's duties, title, responsibilities, or the conditions of
Employee's employment from those in effect immediately prior to
such Change in Control; or
(iv) a change in the location of Employee's principal place of
employment by Canaan or any of its successors or assigns by more
than fifty (50) miles from the location where Employee was
principally employed immediately preceding to the date on which
a Change of Control occurs.
(b) "Change of Control" shall mean the occurrence after the effective date
of this Agreement of:
(i) an acquisition (other than directly from Canaan) of any voting
securities of Canaan (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of fifty percent (50%)
or more of the combined voting power of Canaan's then
outstanding Voting Securities;
(ii) the individuals who, as of the effective date of this Agreement,
are members of the Board of Directors of Canaan (the "Incumbent
Board"), cease for any reason to constitute at least two-thirds
of the members of the Board of Directors of Canaan (the
"Board"); provided, however, that if the election, or nomination
for election by Canaan's common stockholders, of any new
director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board;
provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or
threatened "election contest" (as described in Rule 14A-11
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board (a "Proxy Contest") including
by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(iii) consummation of:
(A) A merger, consolidation or reorganization involving Canaan,
unless:
(1) the stockholders of Canaan, immediately before such
merger, consolidation or reorganization, own directly
or indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent
(60%) of the combined voting power of the outstanding
voting securities of the corporation resulting from
such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization;
(2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement
providing for such merger, consolidation or
reorganization constitute at least two-thirds of the
members of the board of directors of the Surviving
Corporation; and
(3) no person other than Canaan, any subsidiary, any
employee benefit plan (or any trust forming a part
thereof) maintained by Canaan, the Surviving
Corporation, or any subsidiary, or
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any person who, immediately prior to such merger,
consolidation or reorganization had Beneficial
Ownership of fifty percent (50%) or more of the then
outstanding Voting Securities, has Beneficial Ownership
of fifty percent (50%) or more of the combined voting
power of the Surviving Corporation's then outstanding
voting securities.
(B) a complete liquidation or dissolution of Canaan; or
(C) an agreement for the sale or other disposition of all or
substantially all of the assets of Canaan to any Person
(other than a transfer to a subsidiary).
Notwithstanding the foregoing, a Change of Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted percent of the outstanding Voting
Securities as a result of the acquisition of Voting Securities by Canaan
that, by reducing the number of Voting Securities outstanding, increases
the proportional number of shares Beneficially Owned by the Subject Person,
provided that if a Change of Control would occur (but for the operation of
this sentence) as a result of the acquisition of Voting Securities by
Canaan, and after such share acquisition by Canaan, the Subject Person
becomes the Beneficial Owner of any additional Voting Securities that
increases the percentage of the then outstanding Voting Securities
Beneficially Owned by the Subject Person, then a Change of Control shall
occur.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Compensation" shall mean the sum of:
(i) Employee's annual salary at the rate in effect immediately prior
to the date on which a Change of Control occurs; and
(ii) the highest annual bonus received by Employee during the three
(3) years immediately prior to the date on which a Change of
Control occurs.
(e) "Involuntary Termination" shall mean any termination of Employee's
employment with Canaan or any of its successors or assigns other than
(i) termination for cause; (ii) termination as a result of death or
disability; (iii) retirement; or (iv) resignation by Employee except
resignation on or before the date that is ninety (90) days after the
date upon which Employee receives notice of a Change in Duties.
(f) "Retirement" shall mean Employee's resignation on or after the date
Employee reaches age sixty-five (65).
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(g) "Severance Amount" shall mean an amount equal to three (3) times
Employee's Compensation.
(h) "Termination for Cause" shall mean an Employee's termination of
employment with Canaan or any of its successors or assigns because of:
(i) Employee's failure to devote reasonable time and effort to the
performance of Employee's duties, and such failure has not been
cured within thirty (30) days of the receipt by Employee of
written notice thereof, which written notice shall specifically
identify how Employee has not devoted reasonable time and effort
to the performance of duties; or
(ii) Employee's willful engagement in misconduct that is materially
injurious to Canaan, monetarily and otherwise, and such
midconduct has not been cured within thirty (30) days of the
receipt by written notice thereof.
2. SEVERANCE BENEFITS. If Employee's employment by Canaan or any of its
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successors or assigns is subject to an Involuntary Termination that occurs
within two (2) years after the date upon which a Change of Control occurs,
then Employee shall be entitled to receive, as additional compensation for
services rendered to Canaan or any of its successors or assigns, at
Employee's option, a lump sum cash payment, which payment shall be paid
within ten (10) business days after ther effective date of the Involuntary
Termination, in an amount equal to:
(a) if such payment is subject to Code Section 280G, the maximum amount
payable to Employee without such payment (or any portion thereof)
being characterized as a "parachute payment" pursuant to Code Section
280G(b)(2)(A) after taking into consideration all payments to Employee
covered by such section, which shall be limited to those payments
calculated in the manner required under Code Section 280G that
Employee receives or is deemed to receive (i) under this Agreement;
(ii) under the Canaan Stock Option Plan by reason of the acceleration
of any vesting of options granted thereunder; or (iii) under any other
plan or arrangement that would otherwise be considered a "parachute
payment" under Code Section 280G. Such payment shall be accompanied by
a notice specifying the calculation of the payment as well as the
amount of any "parachute payments" and the Company's deduction limit
under Code Section 280G. Such notice shall contain sufficient detail
to enable the Employee to challenge Canaan's computation of any
payment without significant additional information; or
(b) if such payment is not subject to Code Section 280G, the greater of
(i) the amount calculated under paragraph 2(a) hereof, as if such
payment were subject to Code Section 280G, or (ii) the Severance
Amount. Such payment shall be accompanied by a notice specifying the
calculation of the payment, which note shall contain sufficient detail
to enable Employee
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to challenge Canaan's computation of any payment without
significant additional information.
If Employee objects to Canaan's computation of any payment, he shall
deliver to Canaan (or its respective successors or assigns) a dispute
notice (signed by Employee) within fifteen (15) business days of receipt by
Employee of the payment. If a dispute notice is not delivered prior to the
expiration of such period, Canaan's calculation shall be final and binding
on each party hereto. If a dispute notice is delivered to Canaan (or its
respective successors or assigns), Canaan (or its respective successors or
assigns) and Employee shall negotiate in good faith to resolve any
differences related to the calculation of the payment promptly following
delivery of the dispute notice. If Canaan (or its respective successors or
assigns) and Employee fail to reach an agreement after ten (10) business
days of such good faith negotiations, then the payment shall be determined
by the Oklahoma City, Oklahoma office of a major national accounting firm
agreed upon by Canaan (or its respective successors or assigns) and
Employee (or, if they do not so agree within ten (10) business days, then
each of them shall select such an accounting firm and the two firms so
selected shall select a third such firm within ten (10) business days) (the
"Determining Party"), whose determination of the payment shall be final and
binding on each party hereto. Canaan (or its respective successors or
assigns) and Employee will fully cooperate with the Determining Party in
order to enable the Determining Party to reach its determination of the
payment as soon as practicable, but in no event later than thirty (30) days
after the matter is referred to the Determining Party. The cost of
retaining the Determining Party with respect to a dispute regarding the
payment will be borne by Canaan (or its respective successors or assigns).
3. TERM. The term of this Agreement shall commence on the effective date
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hereof and shall terminate on January 31, 2007 (the "Initial Term"). Unless
terminated as provided below, this Agreement shall be renewed automatically for
consecutive five-year periods as of January 31 of each successive fifth year
commencing January 31, 2007 (each such five-year period, a "Renewal Term") (the
Initial Term and all Renewal Terms are hereinafter collectively referred to as
the "Term"). On or before ninety (90) days immediately preceding the termination
of the Initial Term or any Renewal Term, Canaan shall have the right to review
this Agreement, and either continue and extend this Agreement, terminate this
Agreement, which termination shall be effective as of the termination of then
Initial Term or any Renewal Term, as the case may be, and/or offer Employee a
different agreement. Canaan will notify Employee of such action on or before
such ninety (90) day period. This Agreement shall remain in effect until
terminated as provided above and/or modified by Canaan. Failure of Canaan to
take any action on or before such ninety (90) day period shall be considered as
an extension of this Agreement for an additional five-year (5) period of time.
If a Change of Control occurs while this Agreement is in effect, then this
Agreement shall not be subject to termination or modification and shall remain
in force for a period of two (2) years after such Change of Control, and if
within said two (2) years the contingency factors occur that would entitle
Employee to the benefits as provided herein, this Agreement shall remain in
effect in accordance with its terms.
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4. GENERAL.
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(a) Entire Agreement. This Agreement contains the entire agreement of the
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parties relating to the subject matter hereof and supersede any and
all other agreements, either oral or written, between the parties
hereto with respect to the subject matter.
(b) Successors. This Agreement shall be binding upon and inure to the
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benefit of Canaan and any successor of Canaan, by merger or otherwise.
This Agreement shall also be binding upon and inure to the benefit of
the Employee and Employee's estate. If Employee shall die prior to
full payment of amounts due pursuant to this Agreement, such amounts
shall be payable pursuant to the terms of this Agreement to Employee's
estate.
(c) Severability. If any provision of this Agreement is held to be
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illegal, invalid, or unenforceable, such provision shall be fully
severable, and this Agreement shall be construed and enforced as if
such illegal, invalid, or unenforceable provision were never a part
hereof; the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance (except to the extent such
remaining provisions constitute obligations of another party to this
Agreement corresponding to the unenforceable provision); and in lieu
of such illegal, invalid, or unenforceable provision, there shall be
added automatically as part of this Agreement, a provision as similar
in its terms to such illegal, invalid, or unenforceable provision as
may be possible and be legal, valid, and enforceable.
(d) Controlling Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Oklahoma.
(e) Release. As a condition to the receipt of any benefit under Paragraph
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2 hereof, Employee shall first execute a release releasing Canaan, its
shareholders, officers, directors, employees and agents from any and
all claims and from any and all causes of action of any kind or
character, including but not limited to all claims or causes of action
arising out of Employee's employment with Canaan or the termination of
such employment.
(f) Not a Contract of Employment. This Agreement shall not be deemed to
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constitute a contract of employment, nor shall any provision hereof
effect (i) the right of Canaan to discharge Employee at will or (ii)
the terms and conditions of any other agreement between Canaan and
Employee except as provided herein. No severance compensation shall be
payable hereunder as a result of any termination of employment before
a Change of Control.
(g) Nonalienation. No benefit payable hereunder may be assigned, pledged
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or mortgaged and shall not be subject to legal process or attachment
for claims of creditors of Employee except to the extent required by
applicable law.
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(h) Modification; Waiver. No change or modification of this Agreement
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shall be valid or binding unless it is set forth in a writing signed
by all the parties hereto. No waiver of any term or condition of this
Agreement shall be enforceable unless it is set forth in a writing
signed by the party against which or whom it is sought to be charged.
The waiver be either party of a breach of any provision of this
Agreement by the other shall not operate or be construed as a waiver
of any other or subsequent breach by such other party.
(i) Notices. Any notices, consents, demands, requests, approvals and other
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communications to be given under this Agreement by any party to the
other shall be deemed to have been duly given if given in writing and
sent by (i) nationally recognized overnight courier, (ii) personal
delivery, (iii) facsimile or e-mail, (iv) registered or certified
mail, postage prepaid with return receipt requested, as follows:
If to Canaan: Xxxx Xxxxxx
Canaan Energy Corporation
000 X. Xxxxxxxx, Xxxxx 0000X
Xxxxxxxx Xxxx, XX 00000
Facsimile: 000-000-0000
E-Mail: xxxx.xxxxxx@xxxxxxxxxxxx.xxx
with a copy (which Xxxxxxx X. Xxxxxxx
shall not constitute Xxxxx & Xxxxxxx
notice) to: 0000 Xxx-Xxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Facsimile: 000-000-0000
E-Mail: xxxxxxxx@xxxxxxxxxxxx.xxx
If to Employee: ____________________________
____________________________
____________________________
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Each party may designate by notice in writing in accordance with
this Section a new address to which any notice, consent, demand,
request, approval or communication may thereafter be so given. All
such notices shall be considered communicated: (a) if given by
overnight carrier, on the next business day; (b) if given by personal
delivery, upon receipt; (c) if given by facsimile, on the date that
facsimile was sent if confirmation of such transmission is obtained;
(d) if given by e-mail, on the date the e-mail was sent if written
confirmation of such transmission is obtained; and (e) if given by
mail, three days after mailing.
(j) Binding Effect. This Agreement shall be binding upon the parties
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hereto, together with their respective executors, administrators,
successors, personal representatives, heirs and assigns.
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(k) Costs. If any action at law or in equity is necessary to enforce or
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interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which he or it may be
entitled.
(l) Counterparts. This Agreement may be executed in counterparts, each of
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which shall constitute an original but all of which shall constitute
one and the same document.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date set forth above.
"EMPLOYEE"
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CANAAN ENERGY CORPORATION
By:
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Xxxx Xxxxxx, President
