Change of Control

Summary

The Company maintains a Change of Control Agreement with each of the Named Executive Officers (“NEOs”) and three other employees (together the “Participants”) which were implemented by the Board to induce the Participants to remain with the Company and continue their involvement in the then ongoing development of the Brisas project and more recently, resolution of the investment dispute with Venezuela and the pursuit of new corporate opportunities.

A “Change of Control” means one or more of the following: the acquisition by any individual, entity or group, of beneficial ownership of the Company of 25 percent of the voting power of the outstanding Common Shares; a change in the composition of the Board that causes less than a majority of the current directors of the Board to be members of the incoming board; reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company; liquidation or dissolution of the Company; or any other event the Board reasonably determines constitutes a Change of Control.

The payments Participants are entitled to collectively receive upon a Change of Control vary based on, among other metrics, the relevant stock price, compensation and benefit levels and the number of equity awards outstanding at the time of a Change of Control. The Company currently estimates that the aggregate payment for a Change of Control would approximate $13 to $14 million, excluding any gross-up payments, which payments could be substantial depending on the tax position of each individual.

Change of Control Agreements

Beginning in 2003, the Company entered into Change of Control Agreements with each of the Named Executive Officers (“NEOs”) and three other employees (the “Participants”) which were implemented by the Board to induce the Participants to remain with the Company and continue their involvement in the then ongoing development of the Brisas project and more recently, resolution of the investment dispute with Venezuela and the pursuit of new corporate opportunities. At this time, there are no written employment agreements between the Company and the Participants.

A “Change of Control” means one or more of the following: the acquisition by any individual, entity or group, of beneficial ownership of the Company of 25 percent of the voting power of the outstanding Common Shares; a change in the composition of the Board that causes less than a majority of the current directors of the Board to be members of the incoming board; reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company; liquidation or dissolution of the Company; or any other event the Board reasonably determines constitutes a Change of Control.

Change of Control benefits become payable under the terms of the Change of Control agreements if, within 12 months following a Change of Control, the employee’s employment is terminated by the Company or the surviving or successor entity without cause or the employee voluntarily terminates his/her employment for reasons specified under the respective Change of Control Agreement. Such reasons include a substantial alteration in the nature or status of employment responsibilities or a reduction in compensation or benefits.

Pursuant to the Change of Control Agreements, in the event of a Change of Control each participant is entitled to, among other things, continue employment with the Company and, if the participant’s employment is terminated within 12 months following the Change of Control for any reason other than termination by the Company for cause, such participant will be entitled to receive, among other things:

    • 24 or 36 times the Participant’s monthly salary based primarily on seniority of position and responsibility and length of service determined as of the date immediately prior to termination or the Change of Control, whichever is greater;
    • Two years of the Company’s KSOP contributions (based upon the maximum allowable allocation pursuant to applicable law and the Participant’s annual salary immediately prior to Participant’s termination date or the Change of Control, whichever is greater);
    • An aggregate of all bonuses received during the 12 months prior to the Participant’s termination date, plus any amounts required to be paid in connection with unpaid vacation time;
    • Two times the monthly premium for maintenance of the Participant’s health, life, accidental death and dismemberment, and long term disability insurance benefits for a period of 36 months;
    • Full vesting and removal of any restrictions related to all equity awards or equity-based awards granted to the participant; and
    • At the election of the participant, the buy-out of the cash value of any unexercised options based upon the amount by which the weighted average trading price of the Class A Shares for the last five days preceding the date the participant makes such election exceeds the exercise price of the options.

The participants are entitled to receive certain “gross-up payments” (that is, an excess parachute gross-up payment and a deferred compensation gross-up payment) if payments that he or she receives are subject to the excise tax under Code Section 4999 on excess parachute payments or the additional tax and interest factor tax under Code Section 409A on deferred compensation. The intent of these gross-up payments is to put the participant in the same position, after tax, that he or she would have been in if the payments that the participant received had not been subject to the excise and additional taxes.

Payments may be delayed six months under Code Section 409A. In the event of such a delay, the delayed payments will be made to a rabbi trust. Upon the completion of the six-month delay period, the payments held in the rabbi trust will be paid to the participant plus interest at the prime rate. The Company will pay all costs associated with the rabbi trust.

The payments Participants are entitled to collectively receive upon a Change of Control vary based on, among other metrics, the relevant stock price, compensation and benefit levels and the number of equity awards outstanding at the time of a Change of Control.