Exhibit 10(j)-2
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL
AGREEMENT (this “Agreement”) is executed on the ___
day of
,
, to be effective as of the ___ day of
, ___, by and between ENERGYSOUTH, INC., a Delaware corporation
(“EnergySouth”), and
(“Executive”).
WHEREAS, Executive is an
effective and valuable employee and officer of EnergySouth and/or
one or more of its subsidiaries; and
WHEREAS, EnergySouth
recognizes that the uncertainties involved in a potential or actual
change in control of EnergySouth could result in the distraction or
departure of management personnel such as Executive to the
detriment of EnergySouth and its shareholders; and
WHEREAS, EnergySouth desires
to lessen the personal and economic pressure which a potential or
actual change in control may impose on Executive and thereby
facilitate Executive’s ability to bargain successfully for
the best interests of EnergySouth’s shareholders in the event
of such a change in control.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements herein
contained, EnergySouth and Executive hereby agree as follows:
Section 1. Definitions .
As used
in this Agreement the following words and terms shall have the
following meanings:
1.1 “Cause” means
termination of employment by Employer based on any one or more of
the following:
1.1.1 The Executive’s
conviction, plea of “guilty” or plea of “no
contest” to any crime constituting a felony in the
jurisdiction in which it is committed or to any crime involving
dishonesty or willful misconduct that materially injures or is
likely to materially injure Employer;
1.1.2 Willful violation of any
significant policy of Employer that materially injures Employer and
which violation Executive fails to cure after thirty (30) days
written notice to Executive of such violation;
1.1.3 Fraud;
1.1.4 Consistent gross neglect of
duties or wanton negligence by the Executive in the performance of
his duties to Employer; or
1.1.5 Willful failure by the
Executive to substantially perform or comply with (for reasons
other than disability) any duties reasonably assigned or
appropriate to the Executive’s position, which failure is not
cured within thirty (30) days after written notice to
Executive of such failure, or the material breach by Executive of
the terms of this Agreement, which material breach is not cured
within thirty (30) days after written notice to Executive of
such default.
1.2 A “Change in Control”
of EnergySouth will be deemed to have occurred if and when:
1.2.1 Either of the following is
consummated: (A) any consolidation or merger of
EnergySouth in which the majority of the Board of Directors are not
on the continuing or surviving Board of Directors or pursuant to
which shares of EnergySouth’s common stock are converted into
cash, securities or other property, other than a consolidation or
merger of EnergySouth in which each holder of EnergySouth’s
common stock immediately prior to the merger has, upon consummation
of the merger, the same proportionate ownership of common stock of
the surviving corporation as such holder had of EnergySouth’s
common stock immediately prior to the merger; or (B) any sale,
lease exchange or other transfer (in one transaction or a series of
transactions contemplated or arranged by any party as a single
plan) of all or substantially all of the assets of EnergySouth;
or
1.2.2 The shareholders of EnergySouth
approve any plan or proposal for the liquidation or dissolution of
EnergySouth.
1.3 “Code” means the
Internal Revenue Code of 1986, as the same may be from time to time
amended.
1.4 “Compensation” means
an amount equal to the sum of (A) plus (B), where (A) is
the Executive’s annualized base salary in effect immediately
prior to the Change in Control, and (B) is the
Executive’s target annual cash incentive award for the
calendar year in which the Date of Termination occurs.
1.5 “Date of Termination”
means the date that a termination of Executive’s employment
with Employer is first effective.
1.6 A “Disability” will
be deemed to have occurred if the Executive is absent from full
time performance of his duties with Employer for ninety
(90) days, whether or not consecutive, during any six
(6) month period, as a result of Executive’s incapacity
due to physical or mental illness.
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1.7 “Effective Period”
means the period commencing with the earliest date that a Change in
Control occurs and ending on the last day of the twenty-fourth
calendar months following the calendar month during which such
Change in Control occurred.
1.8 “Employer” means
EnergySouth and/or its Subsidiaries.
1.9 “Good Reason” means
the occurrence during an Effective Period of any of the following
events without Executive’s prior written consent:
1.9.1 The assignment to the Executive
of any duties inconsistent with Executive’s position with
Employer immediately prior to a Change in Control or a substantial
reduction in the nature or status of the Executive’s
responsibilities;
1.9.2 Employer requiring the
Executive to be based at a location that is more than fifty
(50) miles from the current principal location of Employer
without the Executive’s consent;
1.9.3 The failure by Employer to
continue to pay to or provide the Executive with the compensation,
benefits and perquisites as were provided to the Executive
immediately prior to a Change in Control; or
1.9.4 The failure of the Company to
obtain a satisfactory agreement from any successor to assume and
agree to perform any agreement between Employer and the
Executive.
1.10 “Notice of
Termination” has the meaning set forth in Section 2.1 of
this Agreement.
1.11 “Subsidiary” means
any corporation or other legal entity, the majority of the
outstanding voting stock of which (or equity interests in) is owned
directly or indirectly, by EnergySouth.
1.12 “Triggering
Termination” shall mean
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(1) |
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any termination by Employer of Executive’s employment
other than for Cause; |
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(2) |
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a termination of Executive’s employment which Executive
and EnergySouth agree in writing will constitute a Triggering
Termination for purposes of this Agreement; and |
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(3) |
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a voluntary termination of Executive’s employment by
Executive for Good Reason. |
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Section 2. Notice of Termination .
During
any Effective Period:
2.1 Any termination for Cause or Good
Reason shall be communicated to the other party by written notice
(“
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