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EXHIBIT 10.25
AMERIGAS PROPANE, INC.
CHANGE OF CONTROL AGREEMENT
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TABLE OF CONTENTS
PAGE NO.
Agreement............................................................................... 1
Introduction............................................................................ 1
Section 1. Definitions................................................................. 2
Section 2. Notice of Termination....................................................... 11
Section 3. Severance Compensation upon Termination..................................... 12
Section 4. Other Payments.............................................................. 13
Section 5. Trust Fund.................................................................. 13
Section 6. Enforcement................................................................. 13
Section 7. No Mitigation............................................................... 14
Section 8. Non-exclusivity of Rights................................................... 14
Section 9. No Set-Off.................................................................. 14
Section 10. Taxes...................................................................... 15
Section 11. Certain Increase in Payments............................................... 15
Section 12. Term of Agreement.......................................................... 17
Section 13. Successor Company.......................................................... 17
Section 14. Notice..................................................................... 18
Section 15. Governing Law.............................................................. 19
Section 16. Contents of Agreement, Amendment, and Assignment........................... 19
Section 17. No Right to Continued Employment........................................... 19
Section 18. Successors and Assigns..................................................... 19
Section 19. Severability............................................................... 20
Section 20. Remedies Cumulative; No Waiver............................................. 20
Section 21. Miscellaneous.............................................................. 20
Section 22. Arbitration................................................................ 20
Signatures.............................................................................. 21
(i)
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AMENDED AGREEMENT
Amended Agreement made as of the 28th day of July, 1997, between
AmeriGas Propane, Inc., a Pennsylvania corporation (the "Company"), and ▇▇▇▇▇▇
V. N. ▇▇▇▇▇▇▇ (the "Employee").
INTRODUCTION
The Company and the Employee entered into an Agreement as of
January 27, 1997, to provide for certain payments to be made to the Employee in
the event of a change of control of the Company; and
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
The Employee is presently employed by the Company as its Vice
President - Sales & Operations. The Company is an indirect wholly owned
subsidiary of UGI Corporation, a Pennsylvania corporation ("UGI"), and is the
General Partner of AmeriGas Partners, L.P. and AmeriGas Propane, L.P., Delaware
limited partnerships (the "Public Partnership" and the "Operating Partnership,"
respectively).
The Company considers it essential to ▇▇▇▇▇▇ 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 legal entities with
publicly held securities, the possibility of a change in control affecting UGI
or 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.
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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 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.
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 the Employee's 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,
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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 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 any UGI Stock Option and Dividend
Equivalent Plan, UGI's 1992 Non-qualified Stock Option Plan, or grants of Units
made under the AmeriGas Propane, Inc. Long-term Incentive Plan, or their
successors, for the five (5) calendar years (or such number of actual full
calendar years of employment, if less than five (5)) 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
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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 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 securities; 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 (40) days after the date of such
acquisition.
(d) "Board" shall mean the board of directors of the
Company.
(e) "Cause" shall mean 1) misappropriation of funds, 2)
substance abuse or habitual insobriety, 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 or the Public or
Operating Partnerships.
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(f) "Change of Control" shall mean:
i. Any Person (except the Employee, his Affiliates
and Associates, UGI, any Subsidiary of UGI, any employee benefit plan of UGI or
of any Subsidiary of UGI, or any Person or entity organized, appointed or
established by UGI 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 twenty percent (20%) or more of either (i)
the then outstanding shares of common stock of UGI (the "Outstanding UGI Common
Stock") or (ii) the combined voting power of the then outstanding voting
securities of UGI entitled to vote generally in the election of directors (the
"UGI Voting Securities"), in either case unless the members of the Board in
office immediately prior to such acquisition determine within five (5) 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
ii. Individuals who, as of the beginning of any
twenty-four (24) month period, constitute the UGI Board (the "Incumbent UGI
Board") cease for any reason to constitute at least a majority of the Incumbent
UGI Board, provided that any individual becoming a director of UGI subsequent to
the beginning of such period whose election or nomination for election by the
UGI stockholders was approved by a vote of at least a majority of the directors
then comprising the Incumbent UGI Board shall be considered as though such
individual were a member of the Incumbent UGI 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 UGI (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated
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under the Exchange Act), unless the members of the Board in office immediately
before such cessation determine that the circumstances do not warrant the
implementation of the provisions of this Agreement; or
iii. Completion by UGI 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 UGI Common Stock and UGI Voting Securities
immediately prior to such Business Combination do not, following such Business
Combination, Beneficially Own, directly or indirectly, more than fifty percent
(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 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 UGI Common Stock and UGI Voting Securities, as the case may be, in
any such case unless the members of the Board 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
iv. (a) Completion of a complete liquidation or
dissolution of UGI or (b) sale or other disposition of all or substantially all
of the assets of UGI other than to a corporation with respect to which,
following such sale or disposition, more than fifty percent (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
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substantially all of the individuals and entities who were the Beneficial
Owners, respectively, of the Outstanding UGI Common Stock and UGI Voting
Securities immediately prior to such sale or disposition in substantially the
same proportion as their ownership of the Outstanding UGI Common Stock and UGI
Voting Securities, as the case may be, immediately prior to such sale or
disposition, in any such case unless the members of the Board 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; or
v. Completion by the Company, Public Partnership or
the Operating Partnership of a reorganization, merger or consolidation (a
"Propane 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 Company's voting securities or of the outstanding units
of AmeriGas Partners, L.P. ("Outstanding Units") immediately prior to such
Propane Business Combination do not, following such Propane Business
Combination, Beneficially Own, directly or indirectly, (a) if the entity
resulting from such Propane Business Combination is a corporation, more than
fifty percent (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 case may be, of
such corporation in substantially the same proportion as their ownership
immediately prior to such Combination of the Company's voting securities or the
Outstanding Units, as the case may be, or, (b) if the entity resulting from such
Propane Business Combination is a partnership, more than fifty percent (50%) of
the then outstanding common units of such partnership in substantially the same
proportion as their
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ownership immediately prior to such Propane Business Combination of the
Company's voting securities or the Outstanding Units, as the case may be,
unless, in any case, the members of the Board in office immediately prior to
such Combination determine at the time of such Combination that the
circumstances do not warrant the implementation of the provisions of this
Agreement; or
vi. (a) Completion of a complete liquidation or
dissolution of the Company, the Public Partnership or the Operating Partnership
or (b) sale or other disposition of all or substantially all of the assets of
the Company, the Public Partnership or the Operating Partnership other than to
an entity with respect to which, following such sale or disposition, (I) if such
entity is a corporation, more than fifty percent (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 Company's voting securities or of the
Outstanding Units, as the case may be, immediately prior to such sale or
disposition in substantially the same proportion as their ownership of the
Company's voting securities or of the Outstanding Units, as the case may be,
immediately prior to such sale or disposition, or, (II) if such entity is a
partnership, more than fifty percent (50%) of the then outstanding common units
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 Company's voting securities or of the Outstanding Units, as the case may be,
immediately prior to such sale or disposition in substantially the same
proportion as their ownership of the Company's voting securities or of the
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Outstanding Units immediately prior to such sale or disposition, unless, in any
case, the members of the Board 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; or
vii. UGI and its Subsidiaries fail to own more than
fifty percent (50%) of the then outstanding general partnership interests of the
Public Partnership or the Operating Partnership, unless, in any case, the
members of the Board in office immediately prior to such failure determine at
the time of such failure that the circumstances do not warrant the
implementation of the provisions of this Agreement; or
viii. UGI and its Subsidiaries fail to own more than
fifty percent (50%) of the then outstanding shares of common stock of the
Company or more than fifty percent (50%) of the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors, unless, in any case, the members of the Board in
office immediately prior to such failure determine at the time of such failure
that the circumstances do not warrant the implementation of the provisions of
this Agreement; or
ix. The Company is removed as the general partner of
the Public Partnership by vote of the limited partners of the Public
Partnership, or is removed as the general partner of the Public Partnership or
the Operating Partnership as a result of judicial or administrative proceedings
involving the Company, the Public Partnership or the Operating Partnership.
(g) "Fair Market Value" of Common Units shall mean the
average of the closing sales price thereof on the New York Stock Exchange for
the five (5) trading
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days preceding the Change of Control as reported on the Composite Tape for
transactions on the New York Stock Exchange.
(h) "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 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
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 twelve (12) months); and
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(vi) the Employee's 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.
(i) "Person" shall mean an individual or a corporation,
partnership, trust, unincorporated organization, association, or other entity.
(j) "Subsidiary" shall mean any corporation in which UGI
or the Company, as applicable, directly or indirectly, owns at least a fifty
percent (50%) interest or an unincorporated entity of which UGI or the Company,
as applicable, directly or indirectly, owns at least fifty percent (50%) of the
profits or capital interests.
(k) "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.
(l) "Termination of Employment" shall mean the termination
of the Employee's actual employment relationship with the Company and its
Subsidiaries or Affiliates.
(m) "UGI Board" shall mean the Board of Directors of UGI.
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 fifteen (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 (3) 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 fifteen
(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 fifteen (15) days), (i) an amount in cash equal to one (1.0) times the
Employee's Base Compensation, and (ii) unless payment shall already have been
made pursuant to the AmeriGas Propane, Inc. 1997 Long-term Incentive Plan, an
amount equal to 110% of the Fair Market Value, as of the date of the Change of
Control, of the Common Units subject to a grant which the Participant was
awarded pursuant to the Plan, provided, however, that if the Change of Control
occurs on or after October 1, 2000, the percentage of the Fair Market Value of
Common Units to be used to calculate the amount payable pursuant to this clause
(ii) shall be 50%, in each case multiplied by a fraction not to exceed one (1)
the numerator of which is the number of months commencing with the later of
October 1, 1996 or the Employee's date of hire and continuing through the Salary
Continuation Period and the denominator of which is thirty-six (36), subject to
customary employment taxes and deductions.
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(b) In the event the Employee's 65th birthday would occur
prior to twelve (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 65th birthday and the denominator of which
shall be 365 days. No payment under (a) above shall be made to the Employee if
the Termination Date occurs on or after the Employee's 65th birthday.
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, in effect at the time of the Change of Control.
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 occur 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
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time announced by Mellon Bank, N.A. as its "prime rate" plus one percent (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.
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.
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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 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 (a "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 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 & ▇▇▇▇▇▇▇ (or, at the Company's option, the Company's
independent
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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 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
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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
(5) years from the date hereof and shall be automatically renewed for successive
one (1) year periods unless the Company notifies the Employee in writing that
this Agreement will not be renewed at least sixty (60) 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 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
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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:
AmeriGas Propane, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
If to the Employee, to:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 (5) 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.
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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.
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 and its Affiliates.
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.
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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.
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, or such other location as the parties mutually agree, 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. The arbitrator shall prepare a written opinion containing the reasons
and basis supporting his
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decision. 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] AMERIGAS PROPANE, INC.
_______________________ By ________________________________
Corporate Secretary ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Chairman, President and
Chief Executive Officer
_______________________ ________________________________
Witness ▇▇▇▇▇▇ V. N. Bissell
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