EXHIBIT 10.41
NOBLE ENERGY, INC.
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (the “Agreement”),
made and entered into by and between NOBLE ENERGY, INC., a Delaware
corporation (“Employer”), and ______________________
(“Executive”),
WITNESSETH THAT:
WHEREAS, Employer and Executive entered into a Change of Control
Agreement effective as of ________________ (the “Prior
Agreement”); and
WHEREAS, Employer and Executive now desire to amend the Prior
Agreement to make certain changes designed to comply with the
requirements of Internal Revenue Code section 409A;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, Employer and Executive
hereby amend the Prior Agreement by restatement in its entirety
effective as of January 1, 2008, to read as follows:
RECITALS
The Board of Directors of Employer (the “Board”) has
determined that it is in the best interests of Employer to assure
that Employer will have the continued dedication of Executive,
notwithstanding the possibility, threat or occurrence of a Change
of Control (as defined below). The Board believes it is
imperative to diminish the inevitable distraction of Executive by
virtue of the personal uncertainties and risks created by a pending
or threatened Change of Control, to encourage Executive’s
full attention and dedication to Employer currently and in the
event of any threatened or pending Change of Control, and to
provide Executive with compensation and benefit arrangements upon a
Separation Event (as defined below) that ensure that such
compensation and benefits are competitive with other
corporations.
AGREEMENT
In consideration of Executive’s continued employment by
Employer, as well as the promises, covenants and obligations
contained herein, Employer and Executive agree as
follows:
1.
Payment
of Severance Amount . Subject to the provisions
of paragraph 4, upon the occurrence of a Separation Event with
respect to Executive, Employer shall:
(a) pay
to Executive when due under Employer’s normal payroll
practices all unpaid salary due to, and unreimbursed expenses
incurred by, Executive in the performance of his duties for
Employer through the Separation Date (as defined
below);
(b) pay
Executive an amount equal to Executive’s Annual Cash
Compensation (as defined in paragraph 2) multiplied by a factor of
_________________, payable as a lump sum cash payment within 30
days following the Separation Date;
(c) pay
Executive an amount equal to Executive’s pro-rata (measured
as (i) the number of days expired, as of the Separation Date, in
the then-current calendar year, divided by (ii) 365) target bonus
for the then-current year within 30 days following the Separation
Date;
(d) provide
Executive with life, disability, medical and dental insurance at
the level provided at either the date of the occurrence of a Change
of Control or the Separation Date, as Executive shall in his sole
discretion elect by providing written notice to Employer, for
_____________________________ months following the Separation Date
or such shorter period until Executive shall obtain substantially
equivalent i
nsurance coverage from a subsequent employer, if any, in the same
manner as if Executive’s Separation from Service (as defined
below) had not occurred until the end of such
period. Executive shall immediately notify Employer upon
obtaining any insurance from a subsequent employer and shall
provide all information required by Employer regarding such
insurance to enable Employer to make a determination of whether
such insurance is substantially equivalent;
(e) notwithstanding
Executive’s Separation from Service, preserve
Executive’s rights to purchase the shares of Employer’s
capital stock that are subject to then-outstanding options that
have been granted to Executive by Employer (or pursuant to a stock
option plan of Employer), so that all such options remain or become
exercisable in accordance with their terms as if Executive’s
Separation from Service had not occurred; and
(f) within
30 days after receiving a detailed invoice for same, reimburse
Executive, up to a maximum cumulative amount of
Dollars, for the reasonable fees of no more than __________
out-placement (or similar) service provider [(s)] engaged by
Executive to assist in finding employment opportunities for
Executive during the twelve-month period following the Separation
Date. All reimbursements to be made pursuant to this
paragraph 1(f) shall be made to Executive no later than the end of
the second calendar year following the calendar year in which
Executive’s Separation Date occurs.
2.
Definitions
.
(a) A
“ Separation
Event ” shall be deemed to have occurred if Employer
or any successor thereto causes Executive’s involuntary
Separation from Service (within the meaning of Treas. Reg.
1.409A-1(n)) at any time within 24 months after a Change of Control
for any reason other than (A) Cause (as defined below), or (B)
incapacity due to physical or mental illness. In
addition, Employer shall be deemed to have caused Executive’s
involuntary Separation from Service if Executive’s Separation
from Service occurs following a Constructive Separation Event (as
defined below).
(b) A
“ Change of
Control ” shall be deemed to have occurred
if:
(i) individuals
who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute
at least fifty-one percent (51%) of the Board, provided that any
person becoming a director subsequent to the date hereof whose
election, or nomination for election by Employer’s
stockholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be, for
purposes of this Agreement, considered as though such person were a
member of the Incumbent Board;
(ii) the
stockholders of Employer shall approve a reorganization, merger or
consolidation, in each case, with respect to which persons who were
the stockholders of Employer immediately prior to such
reorganization, merger or consolidation do not, immediately
thereafter, own outstanding voting securities representing at least
fifty-one percent (51%) of the combined voting power entitled to
vote generally in the election of directors (“Voting
Securities”) of the reorganized, merged or consolidated
company;
(iii) the
stockholders of Employer shall approve a liquidation or dissolution
of Employer or a sale of all or substantially all of the stock or
assets of Employer; or
(iv) any
“person,” as that term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (other than Employer, any of its
subsidiaries, any employee benefit plan of Employer or any of its
subsidiaries, or any entity organized, appointed or established by
Employer for or pursuant to the terms of such a plan), together
with all “affiliates” and “associates” (as
such terms are defined in Rule 12b-2 under the Exchange Act) of
such person (as well as any “Person” or
“group” as those terms are used in Sections 13(d) and
14(d) of the Exchange Act), shall become the “beneficial
owner” or “beneficial owners” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of securities of Employer representing in the aggregate
twenty-five percent (25%) or more of either (A) the then
outstanding shares of common stock, par
value $3.33 per share, of Employer (“Common Stock”) or
(B) the Voting Securities of Employer, in either such case other
than solely as a result of acquisitions of such securities directly
from Employer. Without limiting the foregoing, a person
who, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise has or shares the power to
vote, or to direct the voting of, or to dispose, or to direct the
disposition of, Common Stock or other Voting Securities of Employer
shall be deemed the beneficial owner of such Common Stock or Voting
Securities.
Notwithstanding the foregoing, a “Change of Control” of
Employer shall not be deemed to have occurred for purposes of
subparagraph (iv) of this paragraph 2(b) solely as the result of an
acquisition of securities by Employer which, by reducing the number
of shares of Common Stock or other Voting Securities of Employer
outstanding, increases (i) the proportionate number of shares of
Common Stock beneficially owned by any person to twenty-five
percent (25%) or more of the shares of Common Stock then
outstanding or (ii) the proportionate voting power represented by
the Voting Securities of Employer beneficially owned by any person
to twenty-five percent (25%) or more of the combined voting power
of all then outstanding Voting Securities; provided, however, that
if any person referred to in clause (i) or (ii) of this sentence
shall thereafter become the beneficial owner of any additional
shares of Common Stock or other Voting Securities of Employer
(other than a result of a stock split, stock dividend or similar
transaction), then a Change of Control of Employer shall be deemed
to have occurred for purposes of subparagraph (iv) of this
paragraph 2(b).
(c) “
Annual
Cash Compensation ” shall, as determined on the
Separation Date, be equal to the sum of (i) plus (ii), where
“(i)” equals Executive’s annualized salary in
effect on the date of the earliest Change of Control to occur
during the 18-month period prior to the Separation Date, and
“(ii)” equals the greater of (A) Executive’s
annual target bonus for the then-current bonus period and (B) the
average annual bonus paid or payable by Employer to Executive for
the three-year period (or for the period of Executive’s
employment, if Executive has not been employed for all of such
three-year period) immediately preceding the date of the Change of
Control.
(d) For
purposes of this Agreement, “ Cause
” shall mean (i) the willful and continued failure by
Executive to perform his duties as ____________________ of Employer
or any of its subsidiaries or his continued failure to perform
duties reasonably requested or reasonably prescribed by the Board
(other than as a result of Executive’s death or disability),
(ii) the engaging by Executive in conduct that is materially
monetarily injurious to Employer or any of its subsidiaries, (iii)
gross negligence or willful misconduct by Executive in the
performance of his duties that results in, or causes, material
monetary harm to Employer or any of its subsidiaries, or (iv)
Executive’s commission of a felony or other civil or criminal
offense involving moral turpitude. In the case of (i),
(ii) and (iii) above, a finding of Cause for separation shall be
made only after reasonable notice to Executive and an opportunity
for Executive, together with counsel, to be heard before the
Board. A determination of Cause by the Board shall be
effective only if agreed upon by a majority of the
directors.
(e) “
Code
” shall mean the Internal Revenue Code of 1986, as
amended.
(f) A
“ Constructive
Separation Event ” shall be deemed to have occurred if
Employer:
(i) demotes
Executive to a lesser position, in title or responsibility, as
compared to the highest position held by him with Employer at the
earlier of the occurrence of a Change of Control or the date on
which a tentative agreement is reached by Employer, or a public
announcement is made, regarding a proposed Change of Control that
ultimately occurs;
(ii) decreases
Executive’s total annual compensation ( i.e., the sum of his
annual salary, his target bonus under Employer’s annual
incentive bonus plan or similar plan in effect at the applicable
time and the value of other employment benefits provided to
Executive by Employer) below the level in effect at the earlier of
the occurrence of
