Exhibit 10.15
PENN VIRGINIA RESOURCE GP,
LLC
AMENDED AND
RESTATED
EXECUTIVE CHANGE OF CONTROL
SEVERANCE AGREEMENT
This Amended and Restated Executive
Change of Control Severance Agreement (“Agreement”)
between Penn Virginia Resource GP, LLC, a Delaware limited
liability company (the “Company”), and Ronald K. Page
(“Executive”) is made and entered into effective as of
October 17, 2008 (the “Effective
Date”).
WHEREAS , the Company is the general partner of Penn
Virginia Resource Partners, L.P., a Delaware limited partnership
(the “Partnership”); and
WHEREAS , Executive is a key executive of the Company;
and
WHEREAS , the Company and Executive previously entered
into that certain Executive Change of Control Severance Agreement
dated March 9, 2006 (the “First Agreement”);
and
WHEREAS , the Company and Executive amended and restated
the First Agreement on October 17, 2008 (the “2008
Agreement”) to comply with section 409A of the Internal
Revenue Code, as amended and the regulations promulgated thereunder
(the “Code”); and
WHEREAS , the Company and Executive desire that this
Agreement replace the 2008 Agreement due to an inadvertent error in
the definition of change of control in the 2008 Agreement, which
reflected a change of control in the Partnership’s coal
assets rather than its natural gas midstream assets;
THEREFORE , for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company and Executive agree as follows:
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A.
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The term of
this Agreement (the “Term”) shall commence on the
Effective Date and shall continue in effect through the second
anniversary of the Effective Date; provided, however, that
commencing on the first day following the Effective Date and on
each day thereafter, the Term of this Agreement shall automatically
be extended for one additional day unless the Company shall give
written notice to Executive that the Term shall cease to be so
extended in which event this Agreement shall terminate on the
second anniversary of the date such notice is given.
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B.
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Notwithstanding
anything in this Agreement to the contrary, if a Change of Control
occurs during the Term of this Agreement, the Term shall
automatically be extended until, and shall terminate on, the
24-month anniversary of the date of the Change of
Control.
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C.
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Termination of
this Agreement shall not alter or impair any rights of Executive
arising hereunder on or before such termination.
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A.
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“
Affiliate ” shall mean, with respect to any Person,
any other Person that directly or indirectly through one or more
intermediaries controls, is controlled by or is under common
control with, the Person in question. As used herein, the term
“control” means the possession, direct or indirect, of
the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
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B.
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“
Bonus ” shall mean an amount equal to the highest
annual cash bonus paid or payable to Executive by the Company
during the two-year period prior to Executive’s termination
of employment.
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C.
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“
Cause ” shall mean (i) the willful and continued
failure by Executive to substantially perform Executive’s
duties with the Company or any Affiliate (other than any such
failure resulting from Executive’s incapacity due to physical
or mental illness), (ii) Executive is convicted of a felony,
(iii) Executive willfully engages in gross misconduct
materially and demonstrably injurious to the Company or any
Affiliate or (iv) Executive commits one or more significant
acts of dishonesty as regards the Company or any Affiliate. For
purposes of clause (i) of this definition, no act, or failure
to act, on Executive’s part shall be deemed
“willful” unless done, or omitted to be done, by
Executive not in good faith and without reasonable belief that
Executive’s act, or failure to act, was in the best interest
of the Company. In the case of clauses (i), (iii) and
(iv) above, the determination of whether Cause exists shall
only be made by a resolution duly adopted by the affirmative vote
of not less than two-thirds of the entire membership of the Board
of Directors of the Company (the “Board”) at a meeting
of the Board that was called for the purpose of considering such
termination (after reasonable notice to Executive and an
opportunity for Executive, together with Executive’s counsel,
to be heard before the Board and, if possible, to cure the breach
that was the alleged basis for Cause) finding that, in the good
faith opinion of the Board, Executive was guilty of conduct
constituting Cause and specifying the particulars thereof in
detail.
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D.
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“
Change of Control ” shall mean the occurrence of any
of the following:
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(i)
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any sale,
lease, exchange or other transfer (in one or a series of related
transactions) of all or substantially all of the assets of the
Company or the Partnership or all or substantially all of the
Partnership’s natural gas midstream assets to any Person or
its Affiliates, other than the Company, the Partnership or any of
their Affiliates, it being acknowledged for purposes of clarity
that the sale or disposition by the Partnership of all or
substantially all of its coal assets does not constitute a sale or
disposition of all or substantially all of the assets of the
Partnership;
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(ii)
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any merger,
reorganization, consolidation or other transaction pursuant to
which more than 50% of the combined voting power of the equity
interests in the Company ceases to be beneficially owned (as
defined in Rule 13d-3 under the Exchange Act (as defined below)) by
Penn Virginia Corporation, a Virginia corporation (“Penn
Virginia”);
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(iii)
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the general
partner (whether the Company or any other Person) of the
Partnership ceases to be an Affiliate of Penn Virginia;
or
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(iv)
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a Penn Virginia
Change of Control.
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E.
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“ Good
Reason ” shall mean:
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(i)
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a reduction in
Executive’s authority, duties, titles, status or
responsibilities from those in effect immediately prior to the
Change of Control or the assignment to Executive of duties or
responsibilities inconsistent in any respect from those of
Executive in effect immediately prior to the Change of Control, but
excluding any action or omission by the Company that is immaterial,
isolated, insubstantial and inadvertent and which was not taken in
bad faith by the Company and is remedied by the Company promptly
after receipt of notice thereof given by Executive;
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(ii)
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a material
breach of this Agreement by the Company;
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(iii)
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the Company
fails to obtain a written agreement from any successor or assigns
of the Company to assume and perform this Agreement as provided in
Section 7 hereof; or
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(iv)
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the relocation
by more than 100 miles of the Company’s offices at which the
Executive is based immediately prior to the Change of Control or
the Company requires Executive, without Executive’s written
consent, to be based at any office other than the Company’s
office at which the Executive was based prior to the Change in
Control if the new office location is more than 50 miles away from
the original office location.
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Executive shall give the Company
notice in accordance with Section 9 below within 90 days
following an act or omission to act by the Company constituting
Good Reason hereunder of Executive’s intent to resign for
Good Reason, and the Company shall have 30 days from the date of
such notice to cure the circumstances or events giving rise to
Executive’s right to resign for Good Reason, if capable of
being cured, so as to eliminate the existence of Good Reason for
Executive’s resignation, and, in the event
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the Company does not cure such
circumstances or events, then unless Executive terminates his
employment upon the expiration of the foregoing 30-day cure period,
Executive’s continued employment after the expiration of such
30-day cure period shall constitute Executive’s consent to,
and a waiver of Executive’s rights with respect to, such act
or failure to act. Executive’s right to terminate
Executive’s employment for Good Reason shall not be affected
by Executive’s incapacity due to physical or mental illness.
Executive’s determination that an act or failure to act
constitutes Good Reason shall be presumed to be valid unless such
determination is deemed by an arbitrator to be unreasonable and not
to have been made in good faith by Executive.
For purposes of this Agreement, the
Company shall be in material breach of this Agreement if
(i) the Company reduces Executive’s annual rate of base
salary by an amount which results in Executive receiving an annual
base salary which is less than 95% of Executive’s Termination
Base Salary or (ii) the Company fails to continue in effect
any material incentive compensation plan or arrangement (unless
replacement plans providing Executive with substantially similar
benefits are adopted) or the Company takes any action that would
adversely affect Executive’s participation in any such plan
or arrangement or reduce Executive’s incentive compensation
opportunities under such plan or arrangement, as the case may
be.
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F.
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“ Penn
Virginia Change of Control ” shall mean the occurrence of
any of the following:
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(i)
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any Person or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), other than a trustee or other
fiduciary holding securities under an employee benefit plan of Penn
Virginia, becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of Penn Virginia representing 25% or more of the
combined voting power of Penn Virginia’s then outstanding
voting securities;
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(ii)
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during any period of two
consecutive years (not including any period prior to the effective
date of the First Agreement), individuals who at the beginning of
such period constitute the Board of Directors of Penn Virginia (the
“Penn Virginia Board”), and any new director (other
than a director designated by a person who has entered into an
agreement with Penn Virginia to effect a transaction described in
clause (i), (iii) or (v) of this Penn Virginia Change of
Control definition and excluding any individual whose initial
assumption of office occurs as a result of either (a) an
actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act),
or (b)
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an actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Penn Virginia Board) whose election by the Penn
Virginia Board or nomination for election by Penn Virginia’s
shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason (other
than retirement) to constitute at least a majority
thereof;
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(iii)
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the
shareholders of Penn Virginia approve the consummation of a merger
or consolidation of Penn Virginia with any other corporation, other
than a merger or consolidation which would result in the voting
securities of Penn Virginia outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at
least 75% of the combined voting power of the voting securities of
Penn Virginia (or such surviving entity or parent entity, as the
case may be) outstanding immediately after such merger or
consolidation; or
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(iv)
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the
shareholders of Penn Virginia approve a plan of complete
liquidation of Penn Virginia.
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G.
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“
Person ” shall mean an individual or a corporation,
limited liability company, partnership, joint venture, trust,
unincorporated organization, association, government agency or
political subdivision thereof or other entity.
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H.
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“
Protected Period ” shall mean the 24-month period
beginning on the effective date of a Change of Control.
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I.
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“
Termination Base Salary ” shall mean that amount equal
to Executive’s annual base salary with the Company at the
rate in effect immediately prior to the Change of Control or, if a
greater amount, Executive’s annual base salary at the rate in
effect at any time thereafter.
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3.
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Change of
Control Severance Benefits.
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If (a) Executive terminates his
employment with the Company during the Protected Period for a Good
Reason event or (b) the Company terminates Executive’s
employment during the Protected Period other than (i) for
Cause or (ii) due to Executive’s inability to perform
the primary duties of his position for at least 180 consecutive
days due to a physical or mental impairment, Executive shall
receive the following compensation and benefits from the Company
subject to the execution (and non-revocation within eight days
thereafter) and delivery to the Company of a release, substantially
in the form attached as Exhibit A hereto, with such changes as the
Company reasonably determines must be made to comply with
applicable law at the time of such execution (the
“Release”):
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A.
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The Company
shall, at the time provided in Section 3H, pay to Executive in
a lump sum, in cash, an amount equal to three times the sum of
Executive’s (i) Termination Base Salary and
(ii) Bonus; provided, however, that, if any payment to be
made, or benefit to be provided, to or on behalf of Executive
pursuant to this Agreement (the “Payments”) results in
Executive being subject to the excise tax imposed by
Section 4999 of the Code (or any successor or similar
provision) (the “Excise Tax”), the amount payable to
Executive under this Section 3A shall be reduced so that the
Payments do not result in Executive being subject to the Excise
Tax. One or more determinations as to (a) whether any of the
Payments will be subject to the Excise Tax and (b) the amount
of the Excise Tax imposed thereon, shall be made by the Company in
consultation with such accounting and tax professionals as the
Company considers necessary (with all costs related thereto paid by
the Company). For purposes of determining whether any of the
Payments will be subject to the Excise Tax, (i) all of the
Payments shall be treated as “parachute payments”
(within the meaning of section 280G of the Code) unless and to the
extent that, in the written advice of an independent accountant
selected (and paid for) by the Company and reasonably acceptable to
Executive (the “Accountant”), certain Payments should
not constitute parachute payments, and (ii) all “excess
parachute payments” (within the meaning of section 280G of
the Code) shall be treated as subject to the Excise Tax unless and
only to the extent that the Accountant advises the Company that
such excess parachute payments are not subject to the Excise
Tax.
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B.
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Except to the extent any awards
related to Penn Virginia stock, common units of Penn Virginia GP
Holdings, L.P., a Delaware limited partnership (“PVG”),
or common units of the Partnership have already vested or become
exercisable, as the case may be, under the Penn Virginia
Corporation Fifth Amended and Restated 1999 Employee Stock
Incentive Plan (the “Plan&rdq
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