Exhibit 10.15
C HANGE I N C ONTROL A GREEMENT
B ETWEEN
P HOSPHATE H OLDINGS , I NC .
A ND
T IMOTHY R. C ANTRELL
THIS AGREEMENT, is by and between
P HOSPHATE H OLDINGS , I NC . , a
Delaware corporation (the “ Corporation ”), and
T IMOTHY
R. C ANTRELL (the “ Executive ”) and is
effective on the date established pursuant to Section 15 of
this Agreement (the “ Effective Date
”).
WITNESSETH:
WHEREAS, the Executive is a valuable
employee of the Corporation or a Subsidiary of the Corporation, an
integral part of its management, and a key participant in the
decision-making process relative to short-term and long-term
planning and policy for the Corporation; and
WHEREAS, the Corporation wishes to
encourage the Executive to continue his career and services with
the Corporation or a Subsidiary, as the case may be, following a
Change in Control; and
WHEREAS, the Board has determined
that it would be in the best interests of the Corporation and its
shareholders to assure continuity in the management of the
Corporation’s, including Subsidiaries’, administration
and operations in the event of a Change in Control by entering into
this Agreement with the Executive;
NOW THEREFORE, it is hereby agreed
by and between the parties hereto as follows:
1. D EFINITIONS .
(a) “ Board ”
shall mean the Board of Directors of the Corporation.
(b) “ Cause ”
shall mean the Executive’s fraud or dishonesty which has
resulted or is likely to result in material economic damage to the
Corporation or a Subsidiary of the Corporation, as determined in
good faith by a vote of at least two-thirds of the non-employee
directors of the Corporation at a meeting of the Board at which the
Executive is provided an opportunity to be heard.
(c) “ Change in Control
” shall mean the occurrence of any of the
following:
(i) a sale of assets representing
fifty percent (50%) or more of the net book value and of the
fair market value of the Corporation’s consolidated assets
(in a single transaction or in a series of related
transactions);
(ii) a merger or consolidation
involving the Corporation or any subsidiary of the Corporation
after the completion of which: (A) in the case of a merger
(other than a triangular merger) or a consolidation involving the
Corporation, the shareholders of the Corporation immediately prior
to the completion of such merger or consolidation beneficially own
(within the meaning of Rule 13d-3, promulgated under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), or comparable successor rules), directly or indirectly,
outstanding voting securities representing less than fifty percent
(50%) of the combined voting power of the surviving entity in
such merger or consolidation, and (B) in the case of a
triangular merger involving the Corporation or a Subsidiary, the
shareholders of the Corporation immediately prior to the completion
of such merger beneficially own (within the meaning of Rule 13d-3
promulgated under the Exchange Act, or comparable successor rules),
directly or indirectly, outstanding voting securities representing
less than fifty percent (50%) of the combined voting power of
the surviving entity in such merger and less than fifty percent
(50%) of the combined voting power of the parent of the
surviving entity in such merger;
(iii) an acquisition by any person,
entity or “group” (within the meaning of
Section 13(d) or 14(d) of the Exchange Act or any comparable
successor provisions), other than any employee benefit plan, or
related trust, sponsored or maintained by the Corporation or an
affiliate of the Corporation and other than in a merger or
consolidation of the type referred to in clause “(ii)”
of this Section 1(c), of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act, or
comparable successor rules) of outstanding voting securities of the
Corporation representing more than thirty percent (30%) of the
combined voting power of the Corporation (in a single transaction
or series of related transactions);
(iv) in the event that the
individuals who, as of the Effective Date, are members of the
Corporation’s Board of Directors (the “ Incumbent
Board ”), cease for any reason to constitute at least
fifty percent (50%) of the Corporation’s Board of
Directors. (If the election, or nomination for election by the
Corporation’s shareholders, of any new member of the Board of
Directors is approved by a vote of at least fifty percent
(50%) of the Incumbent Board, such new member of the Board of
Directors shall be considered as a member of the Incumbent Board.);
or
(v) any other transaction or series
of transactions that would have substantially the same effect as
the change of control events described in (i) through
(iv) above
(d) “ Compensation
” shall mean the Executive’s annual base salary at the
time of termination.
(e) “ Constructive
Discharge ” shall mean any of the following:
(i) any material failure by the
Corporation to comply with any of the provisions of this Agreement
which has not been cured within thirty (30) days (or if the
breach cannot be cured within thirty (30) days, the
Corporation has not commenced and is not diligently pursuing such
cure) after written notice of such material failure is delivered to
the Corporation;
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(ii) the Corporation or a Subsidiary
requiring the Executive to be based at any office or location more
than 50 (fifty) miles from the location at which the Executive was
based on the day prior to the Change in Control;
(iii) a reduction which is more than
twenty-five percent (25%) in (A) the Executive’s
annual rate of base salary or maximum annual bonus opportunity, or
(B) the long-term incentive compensation the Executive has the
opportunity to earn, determined in the aggregate if multiple
long-term incentive opportunities exist, as in effect immediately
prior to the Change in Control (except if such reduction is a part
of a reduction for all senior management);
(iv) the Corporation’s failure
to require a successor entity to assume and agree to perform the
Corporation’s obligations pursuant to Section 9;
or
(v) a reduction which is more than
de minimis in the long term disability and life insurance
coverage provided to the Executive under the Corporation’s
life insurance and long term disability plans as in effect
immediately prior to the Change in Control.
No such event described hereunder
shall constitute Constructive Discharge unless the Executive has
given written notice to the Corporation specifying the event relied
upon for such termination within one year after the occurrence of
such event (but in no event later than the Ending Date) and the
Corporation has not remedied such within thirty (30) days of
receipt of such notice. The Corporation and Executive, upon mutual
written agreement, may waive any of the foregoing provisions which
would otherwise constitute a Constructive Discharge.
(f) “ Coverage Period
” shall begin on the Starting Date and end on the Ending
Date.
(g) “ Disability
” shall mean an injury or illness which permanently prevents
the Executive from performing services to the Corporation and which
qualifies the Executive for payments under the Corporation’s
long-term disability plan.
(h) “ Ending Date
” shall be the date which is twenty-four (24) full
calendar months following the date on which a Change in Control
occurs.
(i) “ Starting Date
” shall be the date on which a Change in Control
occurs.
(j) “ Subsidiary
” means any corporation of which more than fifty percent
(50%) of the outstanding stock having ordinary voting power to
elect a majority of the board of directors of such corporation is
now or hereafter owned, directly or indirectly, by the
Corporation.
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2. T ERM .
This Agreement shall be effective as
of the Starting Date and shall continue thereafter until the
twenty-four (24) month anniversary of such date; provided,
however, the Corporation’s obligations, if any, to provide
payments and/or benefits pursuant to Section 3 of this
Agreement and the obligations of the Corporation and the Executive
under Section 5 of this Agreement shall survive the
termination of this Agreement.
3. S EVERANCE B ENEFITS .
(a) If the Executive’s
employment with the Corporation and all Subsidiaries is terminated
by the Corporation or a Subsidiary for any reason other than Cause,
death, or Disability (for avoidance of doubt, transfer of
employment between or among the Corporation and any of its
Subsidiaries shall not constitute a termination of employment by
the Corporation or a Subsidiary for purposes of this Agreement), or
by the Executive in the event of a Constructive Discharge, in
either case at any time during the Coverage Period,
then,
(i) within five (5) business
days after such termination, the Corporation shall pay or cause to
be paid to the Executive (or if the Executive dies after
termination of employment but before receiving all payments to
which he has become entitled hereunder, to the estate of the
Executive) the following amounts:
(A) accrued but unpaid salary and
accrued but unused vacation time in accordance with the
Corporation’s or a Subsidiary’s, as the case may be,
employment policies, as may be amended from time to time;
and
(B) a lump-sum cash amount equal to
2.99 times the Executive’s Compensation; and
(ii) for a period commencing with
the month in which termination of employment shall have occurred
and ending twelve (12) months thereafter, the Executive and,
as applicable, the Executive’s covered dependents shall be
entitled to all benefits under the Corporation’s welfare
benefit plans (within the meaning of Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended), as if
the Executive were still employed during such period, at the same
level of benefits and at the same dollar cost to the Executive as
is available to all of the Corporation’s senior executives
generally. If and to the extent that equivalent benefits shall not
be payable or provided under any such plan, the Corporation shall
pay or provide (or cause to be paid or provided) equivalent
benefits on an individual basis. The benefits provided in
accordance with this Section 3(a)(ii) shall be secondary to
any comparable benefits provided by another employer and subject to
any provisions in a written employment contract between the
Corporation or a Subsidiary and the Executive providing greater
benefits.
(b) (i) If Independent Tax
Counsel (as that term is defined below) determines that the
aggregate payments and benefits provided or to be provided to the
Executive pursuant to this Agreement, and any other payments and
benefits provided or to
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be provided to the Executive from the
Corporation or any of its Subsidiaries or other affiliates or any
successors thereto constitute “parachute payments” as
defined in Section 280G of the Internal Revenue Code of 1986,
as amended (the “ Code ”) (or any successor
provision thereto) (“ Parachute Payments ”) that
would be subject to the excise tax imposed by Section 4999 of
the Code (the “ Excise Tax ”), then, except as
otherwise provided in the next sentence, such Parachute Payments
shall be reduced to the extent necessary, so that no portion
thereof shall be subject to the Excise Tax. If Independent Tax
Counsel determines that the Executive would receive in the
aggregate greater payments and benefits on an after tax basis if
the Parachute Payments were not reduced pursuant to this
Section 3(b), then no such reduction shall be made; provided,
however, that in such case the provisions of Sections 3(b)(ii) and
3(b)(iii) shall not be operative. The determination of the
Independent Tax Counsel under this subsection (i) shall be
final and binding on all parties hereto. The determination of which
payments or benefits shall be reduced to avoid the Excise Tax shall
be determined in the sole discretion of the Corporation; provided,
however, that unless the Executive gives written notice specifying
a different order to the Corporation to effectuate the limitations
described above, the Corporation shall first reduce or eliminate,
as the case may be, those payments or benefits that will cause a
dollar-for-dollar reduction in total Parachute Payments, and then
by reducing or eliminating other Parachute Payments, to the extent
possible, in reverse order beginning with payments or benefits that
are to be paid the farthest in time from the date the reduction or
elimination is to be made. Any notice given by the Executive
pursuant to the preceding sentence, unless prohibited by law, shall
take precedence over the provisions of any other plan, arrangement
or agreement governing the Executive’s rights and entitlement
to any benefits or compensation. For purposes of this
Section 3(b), “ Independent Tax Counsel ”
shall mean a lawyer, a certified public accountant with a
nationally recognized accounting firm, or a compensation consultant
with a nationally recognized actuarial and benefits consulting firm
with expertise in the area of executive co
