EXHIBIT 10.1
CHANGE IN CONTROL/SEVERANCE
AGREEMENT
THIS AGREEMENT, dated July 25, 2008, is made by
and between Adams Resources & Energy, Inc., a Delaware
corporation (the “Company”), and Richard B. Abshire
(the “Key Employee”).
WHEREAS, the Key Employee currently is employed
by the Company or one of its subsidiaries;
WHEREAS, the Board recognizes that, as is the
case with many publicly-held corporations, the possibility of a
Change in Control exists and that such possibility, and the
uncertainty and questions which it may raise among management, may
result in the departure or distraction of management personnel to
the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that
appropriate steps should be taken to ensure that the Key Employee
receive the protections afforded under this Agreement for the
one-year period beginning on the date of a Change in Control to
reinforce and encourage the continued attention and dedication of
members of the Company’s management, including the Key
Employee, to their assigned duties without distraction in the face
of potentially disturbing circumstances;
NOW, THEREFORE, in consideration of the premises
and the mutual covenants herein contained, the Company and the Key
Employee hereby agree as follows:
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Defined
Terms . The
definitions of capitalized terms used in this Agreement are
provided in the last Section hereof.
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2. Term of
Agreement . The Term of this Agreement shall
commence on July 25, 2008 (the “Effective Date”) and
shall continue in effect through the first anniversary following a
Change in Control. In the event a Change in Control has
not occurred on or before July 25, 2012, this Agreement shall
immediately terminate and be of no further force and
effect.
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3. Company’s
Covenants Summarized . In order to induce the Key Employee
to remain in the employ of the Company, the Company agrees, under
the conditions described herein, to pay the Key Employee the
Severance Payment described herein. No Severance Payment
shall be payable under this Agreement unless there shall have been
a termination of the Key Employee’s employment by the Company
without Cause or by the Key Employee with Good Reason following and
within twelve (12) months after a Change in
Control. This Agreement shall not be construed as
creating an express or implied contract of employment and, except
as otherwise agreed in writing between the Key Employee and the
Company, the Key Employee shall not have any right to be retained
in the employ of the Company.
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4.1 If the Key Employee’s
employment is terminated following a Change in Control and within
twelve (12) months after a Change in Control (provided that such
termination of employment constitutes a “separation from
service” within the meaning of Section 409A of the Code), in
either event other than (A) by the Company for Cause, (B) by reason
of death or Disability, or (C) by the Key Employee without Good
Reason, then the Company shall pay the Key Employee the amount
described in this Section 4.1 (“Severance
Payment”).
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In lieu of any further salary
payments to the Key Employee for periods subsequent to the Date of
Termination, the Company shall pay to the Key Employee a lump sum
severance payment, in cash, equal to two (2) times the Key
Employee’s highest Base Salary ( i.e., a Key
Employee’s annualized regular earnings excluding any bonus)
as in effect during the three-year period ending the last day of
the month immediately prior to the month in which the Date of
Termination occurs.
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4.2 The payment provided in
Section 4.1 hereof shall be made as soon as practicable (but in any
event not later than the 30th day) following the Date of
Termination; provided that, to the extent required to satisfy the
provisions of Section 409A(a)(2)(B)(i) of the Code, such payments
shall be made not earlier than but as soon as practicable on or in
any event within thirty (30) days after (with interest at the
six-month certificate of deposit rate published in The Wall
Street Journal on the Date of Termination (or if not published
on that date, on the next following date when published) the date
that is six (6) months after the Date of Termination (the
“409A Payment Date”)).
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5. Termination Procedures and
Compensation During Dispute .
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5.1 Notice of
Termination . After a Change in Control, any
purported termination of the Key Employee’s employment shall
be communicated by written Notice of Termination from one party
hereto to the other party hereto in accordance with Section 7
hereof. For purposes of this Agreement, a “Notice
of Termination” shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Key
Employee’s employment under the provision so
indicated. For purposes of this Agreement, any purported
termination of the Key Employee’s employment after a Change
in Control shall be presumed to be other than for Cause unless the
Notice of Termination includes a copy of a resolution duly adopted
by the affirmative vote of not less a majority of the entire
membership of the Board at a meeting of the Board which was called
and held for the purpose of considering such termination (after
reasonable notice to the Key Employee and an opportunity for the
Key Employee, together with the Key Employee’s counsel, to be
heard before the Board) finding that, in the good faith opinion of
the Board, the Key Employee was guilty of conduct set forth in
clause (i) or (ii) of the definition of Cause herein, and
specifying the particulars thereof in detail.
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5.2 Date of Termination
. “Date of
Termination,” with respect to any purported termination of
the Key Employee’s employment after a Change in Control,
shall mean the date specified in the Notice of Termination (which,
in the case of a termination by the Company, shall not be less than
thirty (30) days (except in the case of a termination for Cause)
and, in the case of a termination by the Key Employee, shall not be
less than fifteen (15) days nor more than sixty (60) days,
respectively, from the date such Notice of Termination is given,
provided that, in the case of a termination by the Key Employee,
the Company may require a Date of Termination earlier than that
specified in the Notice of Termination upon payment to the Key
Employee of the full amount of base salary that would have been
paid to the Key Employee had the Key Employee continued employment
between the actual Date of Termination and the Date of Termination
specified in the Notice of Termination).
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5.3 Dispute Concerning
Termination . If within fifteen (15) days after
any Notice of Termination is given, or, if later, prior to the Date
of Termination (as determined without regard to this Section 5.3),
the party receiving such Notice of Termination notifies the other
party that a dispute exists concerning the termination, the Date of
Termination shall be extended until the earlier of (i) the date on
which the Term ends or (ii) the date on which the dispute is
finally re
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