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EXHIBIT 10.15
AMENDED AGREEMENT
Amended Agreement made as of the 29th day of July, 1997,
between UGI Corporation, a Pennsylvania corporation (the "Company"), and Xxxxxxx
X. Xxxxxxx (the "Employee").
WHEREAS, the Company and the Employee entered into an
Agreement as of June 28, 1996, to provide for certain payments to be made to the
Employee in the event of a change of control of the Company; and
WHEREAS, the Company and the Employee now wish to amend the
Agreement, as permitted by Section 16 of the Agreement, to provide that the
Company will also assist the Employee with taxes that may become due if payments
are made under the Agreement; and
WHEREAS, the Employee is presently employed by the Company, as
its Vice President and General Counsel; and
WHEREAS, the Company considers it essential to xxxxxx the
employment of well qualified key management personnel, and, in this regard, the
board of directors of the Company recognizes that, as is the case with many
publicly held corporations, the possibility of a change in control of the
Company may exist and that such possibility, and the uncertainty and questions
which it may raise among management, may result in the departure or distraction
of key management personnel to the detriment of the Company;
WHEREAS, the board of directors of the Company has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of key members of the Company's management to their
assigned duties without
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distraction in the face of potentially disturbing circumstances arising from the
possibility of a change in control of the Company, although no such change is
now contemplated; and
WHEREAS, in order to induce the Employee to remain in the
employ of the Company, the Company agrees that the Employee shall receive the
compensation set forth in this Agreement in the event his employment with the
Company is terminated subsequent to a "Change of Control" (as defined in Section
1 hereof) of the Company as a cushion against the financial and career impact on
the Employee of any such Change of Control;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, the parties hereto agree that the Amended Agreement shall
read as follows:
1. Definitions. For all purposes of this Agreement, the
following terms shall have the meanings specified in this Section unless the
context clearly otherwise requires:
(a) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b) "Base Compensation" shall mean the average of the total
cash remuneration received by the Employee in all capacities with the Company,
and its Subsidiaries or Affiliates, as reported for Federal income tax purposes
on Form W-2, together with any amounts the payment of which has been deferred by
the Employee under any deferred compensation plan of the Company, and its
Subsidiaries or Affiliates, or otherwise and any and all salary reduction
authorized amounts under any of the benefit
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plans or programs of the Company, and its Subsidiaries or Affiliates, but
excluding any amounts attributable to the exercise of stock options granted to
the Employee under the Company's Stock Option and Dividend Equivalent Plan or
its successor, for the five calendar years (or such number of actual full
calendar years of employment, if less than five) immediately preceding the
calendar year in which occurs a Change of Control or the Employee's Termination
Date, whichever period produces the higher amount.
(c) A Person shall be deemed the "Beneficial Owner" of any
securities: (i) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such right
is exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the "Beneficial
Owner" of securities tendered pursuant to a tender or exchange offer made by
such Person or any of such Person's Affiliates or Associates until such tendered
securities are accepted for payment, purchase or exchange; (ii) that such Person
or any of such Person's Affiliates or Associates, directly or indirectly, has
the right to vote or dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange
Act), including without limitation pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided, however, that a Person shall
not be deemed the "Beneficial Owner" of any security under this clause (ii) as a
result of an oral or written agreement, arrangement or understanding to vote
such security if such agreement, arrangement or understanding (A)arises solely
from
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a revocable proxy given in response to a public proxy or consent solicitation
made pursuant to, and in accordance with, the applicable provisions of the
General Rules and Regulations under the Exchange Act, and (B) is not then
reportable by such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report); or (iii) that are beneficially owned, directly
or indirectly, by any other Person (or any Affiliate or Associate thereof) with
which such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing) for the
purpose of acquiring, holding, voting (except pursuant to a revocable proxy as
described in the proviso to clause (ii) above) or disposing of any voting
securities of the Company; provided, however, that nothing in this Section 1(c)
shall cause a Person engaged in business as an underwriter of securities to be
the "Beneficial Owner" of any securities acquired through such Person's
participation in good faith in a firm commitment underwriting until the
expiration of forty days after the date of such acquisition.
(d) "Board" shall mean the board of directors of the
Company.
(e) "Change of Control" shall mean:
Any Person (except the Employee, his Affiliates and
Associates, the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such employee benefit plan), together with all Affiliates and Associates
of such Person, becomes the Beneficial Owner in the aggregate of 20% or more of
either (i) the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of the Company entitled
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to vote generally in the election of directors (the "Company Voting
Securities"), in either case unless the members of the Company's Executive
Committee in office immediately prior to such acquisition determine within five
business days of the receipt of actual notice of such acquisition that the
circumstances do not warrant the implementation of the provisions of this
Agreement; or
Individuals who, as of the beginning of any twenty-four
month period, constitute the Board (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board, provided that any individual
becoming a director subsequent to the beginning of such period whose election or
nomination for election by the Company's stockholders was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the Directors of the Company (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act); or
Consummation by the Company of a reorganization, merger or
consolidation (a "Business Combination"), in each case, with respect to which
all or substantially all of the individuals and entities who were the respective
Beneficial Owners of the Outstanding Company Common Stock and Company Voting
Securities immediately prior to such Business Combination do not, following such
Business Combination, Beneficially Own, directly or indirectly, more than 50%
of, respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the
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case may be, of the corporation resulting from such Business Combination
in substantially the same proportion as their ownership immediately prior to
such Business Combination of the Outstanding Company Common Stock and Company
Voting Securities, as the case may be, in any such case unless the members of
the Company's Executive Committee in office immediately prior to such Business
Combination determine at the time of such Business Combination that the
circumstances do not warrant the implementation of the provisions of this
Agreement; or
(i) Consummation of a complete liquidation or dissolution of
the Company or (ii) sale or other disposition of all or substantially all of the
assets of the Company other than to a corporation with respect to which,
following such sale or disposition, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors is then owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the Beneficial
Owners, respectively, of the Outstanding Company Common Stock and Company Voting
Securities immediately prior to such sale or disposition in substantially the
same proportion as their ownership of the Outstanding Company Common Stock and
Company Voting Securities, as the case may be, immediately prior to such sale or
disposition, in any such case unless the members of the Company's Executive
Committee in office immediately prior to such sale or disposition determine at
the time of such sale or disposition that the circumstances do not warrant the
implementation of the provisions of this Agreement.
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(f) "Cause" shall mean 1) misappropriation of funds, 2)
habitual insobriety or substance abuse, 3) conviction of a crime involving moral
turpitude, or 4) gross negligence in the performance of duties, which gross
negligence has had a material adverse effect on the business, operations,
assets, properties or financial condition of the Company.
(g) "Good Reason Termination" shall mean a Termination of
Employment initiated by the Employee upon one or more of the following
occurrences:
(i) any failure of the Company to comply with and satisfy
any of the terms of this the Agreement;
(ii) any significant involuntary reduction of the
authority, duties or responsibilities held by the Employee
immediately prior to the Change of Control;
(iii) any involuntary removal of the Employee from the
employment grade, compensation level or officer positions
which the Employee holds with the Company or, if the Employee
is employed by a Subsidiary, with a Subsidiary, held by him
immediately prior to the Change of Control, except in
connection with promotions to higher office;
(iv) any involuntary reduction in the Employee's target
level of annual and long-term compensation as in effect
immediately prior to the Change of Control;
(v) any transfer of the Employee, without his express
written consent, to a location which is outside the King of
Prussia, Pennsylvania area (or the general area in which his
principal place of business
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immediately preceding the Change of Control may be located at
such time if other than King of Prussia, Pennsylvania) by more
than fifty miles, other than on a temporary basis (less than
12 months); and
(vi) the Employee being required to undertake business
travel to an extent substantially greater than the Employee's
business travel obligations immediately prior to the Change of
Control.
(h) "Normal Retirement Date" shall mean the first day of the
calendar month coincident with or next following the Employee's 62nd birthday.
(i) "Subsidiary" shall mean any corporation in which the
Company, directly or indirectly, owns at least a 50% interest or an
unincorporated entity of which the Company, directly or indirectly, owns at
least 50% of the profits or capital interests.
(j) "Termination Date" shall mean the date of receipt of the
Notice of Termination described in Section 2 hereof or any later date specified
therein, as the case may be.
(k) "Termination of Employment" shall mean the termination of
the Employee's actual employment relationship with the Company.
2. Notice of Termination. Any Termination of Employment
following a Change of Control shall be communicated by a Notice of Termination
to the other party hereto given in accordance with Section 14 hereof. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific provision in this Agreement relied upon, (ii)
briefly summarizes the facts and circumstances deemed to provide a basis for the
Employee's Termination of Employment under the provision so indicated, and (iii)
if the Termination Date is other than the date of receipt of such notice,
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specifies the Termination Date (which date shall not be more than 15 days after
the giving of such notice).
3. Severance Compensation upon Termination.
(a) Subject to the provisions of Section 11 hereof, in the
event of the Employee's involuntary Termination of Employment for any reason
other than Cause or in the event of a Good Reason Termination, in either event
within three years after a Change of Control, the Company shall pay to the
Employee, upon the execution of a release, in the form required by the Company
of its terminating executives prior to the Change of Control, within 15 days
after the Termination Date (or as soon as possible thereafter in the event that
the procedures set forth in Section 11(b) hereof cannot be completed within 15
days), an amount in cash equal to 1.0 times the Employee's Base Compensation,
subject to customary employment taxes and deductions.
(b) In the event the Employee's Normal Retirement Date would
occur prior to 12 months after the Termination Date, the aggregate cash amount
determined as set forth in (a) above shall be reduced by multiplying it by a
fraction, the numerator of which shall be the number of days from the
Termination Date to the Employee's Normal Retirement Date and the denominator of
which shall be 365 days.
4. Other Payments. The payment due under Section 3 hereof
shall be in addition to and not in lieu of any payments or benefits due to the
Employee under any other plan, policy or program of the Company, and its
Subsidiaries or Affiliates.
5. Trust Fund. The Company sponsors an irrevocable trust fund
pursuant to a trust agreement to hold assets to satisfy its obligations to
employees under this Agreement. Funding of such trust fund shall be subject to
the discretion of the
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Company's Executive Committee, as set forth in the agreement pursuant to which
the fund has been established.
6. Enforcement.
(a) In the event that the Company shall fail or refuse to make
payment of any amounts due the Employee under Sections 3 and 4 hereof within the
respective time periods provided therein, the Company shall pay to the Employee,
in addition to the payment of any other sums provided in this Agreement,
interest, compounded daily, on any amount remaining unpaid from the date payment
is required under Section 3 or 4, as appropriate, until paid to the Employee, at
the rate from time to time announced by Mellon Bank, N.A. as its "prime rate"
plus 1%, each change in such rate to take effect on the effective date of the
change in such prime rate.
(b) It is the intent of the parties that the Employee not be
required to incur any expenses associated with the enforcement of his rights
under this Agreement by arbitration, litigation or other legal action because
the cost and expense thereof would substantially detract from the benefits
intended to be extended to the Employee hereunder. Accordingly, the Company
shall pay the Employee on demand the amount necessary to reimburse the Employee
in full for all reasonable expenses (including all attorneys' fees and legal
expenses) incurred by the Employee in enforcing any of the obligations of the
Company under this Agreement.
7. No Mitigation. The Employee shall not be required to
mitigate the amount of any payment or benefit provided for in this Agreement by
seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for herein be reduced by any compensation earned by other
employment or otherwise.
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8. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Employee's continuing or future participation in or rights
under any benefit, bonus, incentive or other plan or program provided by the
Company, or any of its Subsidiaries or Affiliates, and for which the Employee
may qualify.
9. No Set-Off. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Employee or others.
10. Taxes. Any payment required under this Agreement shall be
subject to all requirements of the law with regard to the withholding of taxes,
filing, making of reports and the like, and the Company shall use its best
efforts to satisfy promptly all such requirements.
11. Certain Reduction of Payments.
Certain Increase in Payments.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event that it shall be determined that any payment or
distribution by the Company to or for the benefit of the Employee, whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (the "Payment"), would constitute an "excess parachute
payment" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), the Employee shall be paid an additional amount
(the "Gross-Up Payment") such that the net amount retained by the Employee after
deduction of any excise tax imposed under Section 4999 of the Code, and
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any federal, state and local income and employment tax and excise tax imposed
upon the Gross-Up Payment shall be equal to the Payment. For purposes of
determining the amount of the Gross-Up Payment, the Employee shall be deemed to
pay federal income tax and employment taxes at the highest marginal rate of
federal income and employment taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of the Employee's residence
on the Termination Date, net of the maximum reduction in federal income taxes
that may be obtained from the deduction of such state and local taxes.
(b) All determinations to be made under this
Section 11 shall be made by Coopers & Xxxxxxx (or, at the Company's option, the
Company's independent public accountant immediately prior to the Change of
Control (the "Accounting Firm")), which firm shall provide its determinations
and any supporting calculations both to the Company and the Employee within 10
days of the Termination Date. Any such determination by the Accounting Firm
shall be binding upon the Company and the Employee. Within five days after the
Accounting Firm's determination, the Company shall pay (or cause to be paid) or
distribute (or cause to be distributed) to or for the benefit of the Employee
such amounts as are then due to the Employee under this Agreement.
(c) In the event that upon any audit by the
Internal Revenue Service, or by a state or local taxing authority, of the
Payment or Gross-Up Payment, a change is finally determined to be required in
the amount of taxes paid by the Employee, appropriate adjustments shall be made
under this Agreement such that the net amount which is payable to the Employee
after taking into account the provisions of Section 4999
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of the Code shall reflect the intent of the parties as expressed in subsection
(a) above, in the manner determined by the Accounting Firm.
(d) All of the fees and expenses of the
Accounting Firm in performing the determinations referred to in subsections (b)
and (c) above shall be borne solely by the Company. The Company agrees to
indemnify and hold harmless the Accounting Firm of and from any and all claims,
damages and expenses resulting from or relating to its determinations pursuant
to subsections (b) and (c) above, except for claims, damages or expenses
resulting from the gross negligence or wilful misconduct of the Accounting Firm,
which firm shall provide its determinations and any supporting calculations both
to the Company and the Employee within 10 days of the Termination Date. Any such
determination by the Accounting Firm shall be binding upon the Company and the
Employee.
12. Term of Agreement. The term of this Agreement shall be for
five years from the date hereof and shall be automatically renewed for
successive one-year periods unless the Company notifies the Employee in writing
that this Agreement will not be renewed at least sixty days prior to the end of
the current term; provided, however, that (i) after a Change of Control during
the term of this Agreement, this Agreement shall remain in effect until all of
the obligations of the parties hereunder are satisfied or have expired, and (ii)
this Agreement shall terminate if, prior to a Change of Control, the employment
of the Employee with the Company or any of its Subsidiaries, as the case may be,
shall terminate for any reason.
13. Successor Company. The Company shall require any successor
or successors (whether direct or indirect, by purchase, merger or otherwise) to
all or
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substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Employee, to acknowledge expressly that
this Agreement is binding upon and enforceable against the Company in accordance
with the terms hereof, and to become jointly and severally obligated with the
Company to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform if no such succession or successions
had taken place. Failure of the Company to notify the Employee in writing as to
such successorship, to provide the Employee the opportunity to review and agree
to the successor's assumption of this Agreement or to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement. As used in this Agreement, the Company shall mean the Company as
hereinbefore defined and any such successor or successors to its business and/or
assets, jointly and severally.
14. Notice. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be delivered personally or mailed by registered or
certified mail, return receipt requested, or by overnight express courier
service, as follows:
If to the Company, to:
UGI Corporation
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Corporate Secretary
If to the Employee, to:
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
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or to such other names or addresses as the Company or the Employee, as the case
may be, shall designate by notice to the other party hereto in the manner
specified in this Section; provided, however, that if no such notice is given by
the Company following a Change of Control, notice at the last address of the
Company or to any successor pursuant to Section 13 hereof shall be deemed
sufficient for the purposes hereof. Any such notice shall be deemed delivered
and effective when received in the case of personal delivery, five days after
deposit, postage prepaid, with the U.S. Postal Service in the case of registered
or certified mail, or on the next business day in the case of overnight express
courier service.
15. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the Commonwealth of Pennsylvania without giving
effect to any conflict of laws provisions.
16. Contents of Agreement, Amendment and Assignment. This
Agreement supersedes all prior agreements, sets forth the entire understanding
between the parties hereto with respect to the subject matter hereof and cannot
be changed, modified, extended or terminated except upon written amendment
executed by the Employee and the Company's Chief Executive Officer. The
provisions of this Agreement may require a variance from the terms and
conditions of certain compensation or bonus plans under circumstances where such
plans would not provide for payment thereof in order to obtain the maximum
benefits for the Employee. It is the specific intention of the parties that the
provisions of this Agreement shall supersede any provisions to the contrary in
such plans, and such plans shall be deemed to have been amended to correspond
with this Agreement without further action by the Company or the Board.
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17. No Right to Continued Employment. Nothing in this
Agreement shall be construed as giving the Employee any right to be retained in
the employ of the Company.
18. Successors and Assigns. All of the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective heirs, representatives, successors and assigns of
the parties hereto, except that the duties and responsibilities of the Employee
and the Company hereunder shall not be assignable in whole or in part.
19. Severability. If any provision of this Agreement or
application thereof to anyone or under any circumstances shall be determined to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application.
20. Remedies Cumulative; No Waiver. No right conferred upon
the Employee by this Agreement is intended to be exclusive of any other right or
remedy, and each and every such right or remedy shall be cumulative and shall be
in addition to any other right or remedy given hereunder or now or hereafter
existing at law or in equity. No delay or omission by the Employee in exercising
any right, remedy or power hereunder or existing at law or in equity shall be
construed as a waiver thereof.
21. Miscellaneous. All section headings are for convenience
only. This Agreement may be executed in several counterparts, each of which is
an original. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
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22. Arbitration. In the event of any dispute under the
provisions of this Agreement other than a dispute in which the sole relief
sought is an equitable remedy such as an injunction, the parties shall be
required to have the dispute, controversy or claim settled by arbitration in
King of Prussia, Pennsylvania, in accordance with the commercial arbitration
rules then in effect of the American Arbitration Association, before one
arbitrator who shall be an executive officer or former executive officer of a
publicly traded corporation, selected by the parties. Any award entered by the
arbitrator shall be final, binding and nonappealable and judgment may be entered
thereon by either party in accordance with applicable law in any court of
competent jurisdiction. This arbitration provision shall be specifically
enforceable. The arbitrator shall have no authority to modify any provision of
this Agreement or to award a remedy for a dispute involving this Agreement other
than a benefit specifically provided under or by virtue of the Agreement. The
Company shall be responsible for all of the fees of the American Arbitration
Association and the arbitrator and any expenses relating to the conduct of the
arbitration (including reasonable attorneys' fees and expenses).
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, have executed this Amended Agreement as of the date first above written.
ATTEST:
[Seal] UGI CORPORATION
By
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Corporate Secretary Xxx X. Xxxxxxxxx
Chairman, President and
Chief Executive Officer
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Witness Xxxxxxx X. Xxxxxxx
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