EXHIBIT 10.1
AMERIGAS PROPANE, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(amended and restated as of March 1, 2005)
TABLE OF CONTENTS
PAGE
----
Article I Statement of Purpose................................ 2
Article II Definitions......................................... 2
Article III Participation and Vesting........................... 4
Article IV Benefits............................................ 4
Article V Form and Timing of Benefit Distribution............. 5
Article VI Funding of Benefits................................. 5
Article VII The Committees...................................... 6
Article VIII Amendment and Termination........................... 7
Article IX Claims Procedures................................... 8
Article X Miscellaneous Provisions............................ 9
i
ARTICLE I
STATEMENT OF PURPOSE
Sec. 1.01 PURPOSE. The purpose of the AGP SERP is to provide a fair and
competitive level of retirement benefits to certain management and other highly
compensated employees and thereby to attract and retain the highest quality
executives to the General Partner of AmeriGas Partners, L.P. and AmeriGas
Propane, L.P. In addition, the benefits under the AGP SERP are also designed to
compensate certain terminated employees by taking into account in determining
their pension benefits periods of time during which payments are made under the
AmeriGas Propane, Inc. Executive Severance Pay Plan. To address these purposes,
certain Employees of AmeriGas Propane, Inc. (those designated as "Participants")
will be provided with supplemental retirement benefits.
This amendment and restatement of the AGP SERP shall be effective as of
March 1, 2005. It is intended that benefits that are earned and vested under the
AGP SERP as of December 31, 2004 shall be considered "grandfathered" benefits
for purposes of section 409A of the Internal Revenue Code.
ARTICLE I
DEFINITIONS
Sec. 2.01 "Administrative Committee" shall mean the administrative
committee designated pursuant to Article VII of the AGP SERP to administer the
AGP SERP in accordance with its terms.
Sec. 2.02 "Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended.
Sec. 2.03 "AGP" shall mean AmeriGas Propane, Inc.
Sec. 2.04 "AGP 401(k) Plan" shall mean the AmeriGas Propane, Inc. 401(k)
Savings Plan.
Sec. 2.05 "AGP SERP" shall mean the AmeriGas Propane, Inc. Supplemental
Executive Retirement Plan as set forth herein and as the same may be hereafter
amended.
Sec. 2.06 "Board" shall mean the Board of Directors of AGP.
Sec. 2.07 "Compensation/Pension Committee" shall mean the
Compensation/Pension Committee of the Board or such other committee designated
by the Board of AGP to perform certain functions with respect to the AGP SERP.
Sec. 2.08 "Compensation" shall mean actual base salary earned plus the
amount of annual bonus payable under the applicable bonus or severance plan in
each plan year (October 1 - September 30), including Deferred Compensation,
whether or not paid in that plan year. Compensation shall be prorated for all
partial fiscal years during which the Employee is a Participant.
Sec. 2.09 "Deferred Compensation" shall mean the amount of an Employee's
compensation payable under the applicable annual bonus plan as would otherwise
be payable to a Participant except for an election by the Employee to have such
compensation deferred to and paid in a subsequent year, excluding compensation
payable under the applicable bonus plan for years beginning prior to the
Effective Date.
Sec. 2.10 "Effective Date" shall mean October 1, 1996.
Sec. 2.11 "Employee" shall mean any person in the employ of AGP or any
successor employer other than a person (i) whose terms and conditions of
employment are determined through collective bargaining with a third party or
(ii) who is characterized as an independent contractor by AGP, no matter how
characterized by a court or government agency. No retroactive characterization
of an individual's status for any other purpose shall make an individual an
"Employee" for purposes hereof unless specifically determined otherwise by AGP
for the purposes of this AGP SERP.
Sec. 2.12 "Employment Commencement Date" shall mean the first day on which
a Participant became an employee of AGP, any Subsidiary or Affiliate of AGP, or
any entity whose business or assets have been acquired by AGP, its Subsidiary or
Affiliate or by any predecessor of such entities. If any interruption of
employment occurred after the date described in the preceding sentence, the
"Reemployment Commencement Date" shall be the first day on which the Participant
became an employee as described in the preceding sentence after the most recent
such interruption of the employment relationship between the Employee and AGP or
any of its Subsidiaries or Affiliates, unless the Administrative Committee
determines otherwise.
Sec. 2.13 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
Sec. 2.14 "Grandfathered Benefits" shall mean those benefits that are
earned and vested under the AGP SERP as of December 31, 2004 and that are not
subject to the requirements of section 409A of the Internal Revenue Code.
Sec. 2.15 "Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended.
Sec. 2.16 "Key Employee" shall mean (i) an officer of AGP or its Affiliates
having annual compensation greater than $130,000 (as adjusted for inflation
pursuant to section 416(i) of the Internal Revenue Code, and limited to 50
employees), (ii) a five percent owner of AGP and its Affiliates, or (iii) a one
percent owner of AGP and its Affiliates who has annual compensation from AGP and
its Affiliates greater than $150,000, as determined by the Administrative
Committee in a manner consistent with the regulations issued under section 409A
of the Internal Revenue Code.
Sec. 2.17 "Participant" shall mean an Employee of AGP who is compensated on
a salaried basis at grade level 36 or higher or such other level as the
Compensation/Pension Committee may designate.
3
Sec. 2.18 "Subsidiary" shall mean any corporation in which AGP, directly or
indirectly, owns at least a fifty percent (50%) interest or an unincorporated
entity of which AGP, directly or indirectly, owns at least fifty percent (50%)
of the profits or capital interests.
Sec. 2.19 "Termination for Cause" shall mean termination of employment by
reason of misappropriation of funds, habitual insobriety, substance abuse,
conviction of a crime involving moral turpitude, or gross negligence in the
performance of duties, which gross negligence has had a material gross adverse
effect on the business, operations, assets, properties or financial condition of
AGP, AmeriGas Partners, L.P., AmeriGas Propane, L.P., or their Subsidiaries and
Affiliates, taken as a whole.
ARTICLE III
PARTICIPATION AND VESTING
Sec. 3.01 VESTING. Benefits under this AGP SERP shall vest on the fifth
anniversary of a Participant's Employment Commencement Date, unless the
Compensation/Pension Committee determines that a Participant's benefits should
vest, in whole or in part, sooner.
ARTICLE IV
BENEFITS
Sec. 4.01 AMOUNT. AGP shall establish for each Participant an account to
which shall be credited annually an amount equal to 5% of the Participant's
maximum recognizable compensation under section 401(a)(17) of the Internal
Revenue Code and 10% of the Participant's Compensation, if any, in excess of
such maximum recognizable compensation. In addition, effective for amounts
forfeited in 2005 and subsequent years, in the event that any portion of the
employer matching contribution allocated to a Participant under the AGP 401(k)
Plan with respect to a prior plan year is forfeited to satisfy the
nondiscrimination requirements of section 401(k), 401(m) or 401(a)(4) of the
Internal Revenue Code, AGP shall credit to the Participant's account under the
AGP SERP, in the year in which the forfeiture occurs, an amount that is equal to
the forfeited employer matching contributions, adjusted for earnings and losses
as provided under the AGP 401(k) Plan to the date forfeited.
Sec. 4.02 TIMING OF CREDITS. Amounts shall first be credited to a
Participant's account as of September 30, 1997, and annually thereafter as soon
as benefits can be calculated.
Sec. 4.03 BENEFIT INTEREST. Amounts credited to a Participant's account
shall accrue interest from the effective date as of which they are so credited
until the date they are paid to the Participant. Such interest shall be credited
annually on the opening balance of a Participant's account as of each September
30 after 1997. The rate of interest shall be equal to the total year-to-date
rate of return on the trust portfolio for the Retirement Income Plan for
Employees of UGI Utilities, Inc. (the "RIP"), except that the rate of interest
in any fiscal year may not exceed the rate of return assumed in determining the
annual cost of the RIP for that year plus one percent or be less than zero. The
Administrative Committee shall make appropriate adjustments to interest credited
with respect to any amounts that are credited to the AGP SERP during the year
pursuant
4
to Section 4.01 and with respect to Participants who receive a distribution from
the Plan during the year.
Sec. 4.04 DIVESTITURE. Each Participant shall be divested of, and shall
immediately forfeit, any benefit to which the Participant is otherwise entitled
under the AGP SERP if the Participant's employment is Terminated for Cause.
ARTICLE V
FORM AND TIMING OF BENEFIT DISTRIBUTION
Sec. 5.01 FORM OF BENEFIT DISTRIBUTIONS. Benefits payable under the AGP
SERP shall be paid in a lump sum to the Participant, the Participant's
designated beneficiary, or the Participant's estate.
Sec. 5.02 TIMING OF BENEFIT DISTRIBUTIONS. Except as otherwise required by
Section 5.03 below, benefits payable under the AGP SERP shall be paid as soon as
practicable after a Participant's retirement or termination for a reason other
than Termination for Cause; in no event shall such payment be made later than
the later of (i) 90 days after a Participant's retirement or termination for a
reason other than Termination for Cause, or (ii) December 31 of the year in
which such retirement or termination occurs.
Sec. 5.03 KEY EMPLOYEES. If required by section 409A of the Internal
Revenue Code, and applicable regulations or other guidance, any benefit payable
under the AGP SERP that is not a Grandfathered Benefit and that is payable to a
Key Employee may not be paid before the date that is six months after the date
of the Key Employee's retirement or other termination of employment.
ARTICLE VI
FUNDING OF BENEFITS
Sec. 6.01 SOURCE OF FUNDS. The Board may, but shall not be required to,
authorize the establishment of a funding vehicle for the benefits described
herein. In any event, AGP's obligation hereunder shall constitute a general,
unsecured obligation, payable solely out of its general assets, and no
Participant shall have any right to any specific assets of AGP or any such
vehicle.
Sec. 6.02 PARTICIPANT CONTRIBUTIONS. There shall be no contributions made
by Participants under the AGP SERP.
ARTICLE VII
THE COMMITTEES
Sec. 7.01 APPOINTMENT AND TENURE OF ADMINISTRATIVE COMMITTEE MEMBERS. The
Administrative Committee shall consist of one or more persons who shall be
appointed by and serve at the pleasure of the Compensation/Pension
5
Committee. Any Administrative Committee member may resign by delivering his or
her written resignation to the Compensation/Pension Committee. Vacancies arising
by the death, resignation or removal of an Administrative Committee member may
be filled by the Compensation/Pension Committee.
Sec. 7.02 MEETINGS; MAJORITY RULE. Any and all acts of the
Administrative Committee taken at a meeting shall be by a majority of all
members of the Administrative Committee. The Administrative Committee may act by
vote taken in a meeting (at which a majority of members shall constitute a
quorum). The Administrative Committee may also act by unanimous consent in
writing without the formality of convening a meeting.
Sec. 7.03 DELEGATION. The Administrative Committee may, by majority
decision, delegate to each or any one of its members, authority to sign any
documents on its behalf, or to perform ministerial acts, but no person to whom
such authority is delegated shall perform any act involving the exercise of any
discretion without first obtaining the concurrence of a majority of the members
of the Administrative Committee, even though such person alone may sign any
document required by third parties. The Administrative Committee shall elect one
of its number to serve as Chairperson. The Chairperson shall preside at all
meetings of the Administrative Committee or shall delegate such responsibility
to another Administrative Committee member. The Administrative Committee shall
elect one person to serve as Secretary to the Administrative Committee. All
third parties may rely on any communication signed by the Secretary, acting as
such, as an official communication from the Administrative Committee.
Sec. 7.04 AUTHORITY AND RESPONSIBILITY OF THE ADMINISTRATIVE COMMITTEE. The
Administrative Committee shall have only such authority and responsibilities as
are delegated to it by the Compensation/Pension Committee or specifically under
this AGP SERP. Among those delegable authorities and responsibilities are:
(a) maintenance and preservation of records relating to Participants,
former Participants, and their beneficiaries;
(b) preparation and distribution to Participants of all information
and notices required under federal law or the provisions of the AGP SERP;
(c) preparation and filing of all governmental reports and other
information required under law to be filed or published;
(d) construction of the provisions of the AGP SERP, to correct defects
therein and to supply omissions thereto;
(e) engagement of assistants and professional advisers;
(f) arrangement for bonding, if required by law; and
(g) promulgation of procedures for determination of claims for
benefits.
Sec. 7.05 COMPENSATION OF ADMINISTRATIVE COMMITTEE MEMBERS. The members of
the Administrative Committee shall serve without compensation for their services
as such, but all expenses of the Administrative Committee shall be paid or
reimbursed by AGP.
6
Sec. 7.06 COMMITTEE DISCRETION. Any discretion, actions or interpretations
to be made under the AGP SERP by the Administrative Committee or by the
Compensation/Pension Committee on behalf of AGP shall be made in its sole
discretion, not acting in a fiduciary capacity, need not be uniformly applied to
similarly situated individuals, and shall be final, binding and conclusive upon
the parties.
Sec. 7.07 INDEMNIFICATION OF THE COMMITTEES. Each member of the
Administrative Committee and each member of the Compensation/Pension Committee
shall be indemnified by AGP against costs, expenses and liabilities (other than
amounts paid in settlement to which AGP does not consent) reasonably incurred by
the member in connection with any action to which the member may be a party by
reason of the member's service on the applicable Committee, except in relation
to matters as to which the member shall be adjudged in such action to be
personally guilty of gross negligence or willful misconduct in the performance
of the member's duties. The foregoing right to indemnification shall be in
addition to such other rights as the Administrative Committee member or the
Compensation/Pension Committee member may enjoy as a matter of law or by reason
of insurance coverage of any kind, but shall not extend to costs, expenses
and/or liabilities otherwise covered by insurance or that would be so covered by
any insurance then in force if such insurance contained a waiver of subrogation.
Rights granted hereunder shall be in addition to and not in lieu of any rights
to indemnification to which the Administrative Committee member or the
Compensation/Pension Committee member may be entitled pursuant to the by-laws of
AGP. Service on the Administrative Committee or the Compensation/Pension
Committee shall be deemed in partial fulfillment of the applicable Committee
member's function as an employee, officer, or director of AGP, if the Committee
member also serves in that capacity.
ARTICLE VIII
AMENDMENT AND TERMINATION
Sec. 8.01 AMENDMENT. The provisions of the AGP SERP may be amended at any
time and from time to time by a resolution of the Board; provided, however, that
no such amendment shall serve to reduce the benefit that has accrued on behalf
of a Participant as of the effective date of the amendment, and, provided
further, however, that the Compensation/Pension Committee may make such
amendments as are necessary to keep the AGP SERP in compliance with applicable
law and minor amendments which do not materially affect the rights of the
Participants or significantly increase the cost to AGP, AmeriGas Partners, L.P.
or AmeriGas Propane, L.P.
Sec. 8.02 AGP SERP TERMINATION. While it is AGP's intention to continue the
AGP SERP indefinitely in operation, the right is, nevertheless, reserved to
terminate the AGP SERP in whole or in part at any time; provided, however, that
no such termination shall serve to reduce the benefit that has accrued on behalf
of a Participant as of the effective date of the termination.
7
ARTICLE IX
CLAIMS PROCEDURES
Sec. 9.01 CLAIM. Any person or entity claiming a benefit, requesting an
interpretation or ruling under the AGP SERP (hereinafter referred to as
"claimant"), or requesting information under the AGP SERP shall present the
request in writing to the Administrative Committee, which shall respond in
writing or electronically. The notice advising of the denial shall be furnished
to the claimant within 90 days of receipt of the benefit claim by the
Administrative Committee, unless special circumstances require an extension of
time to process the claim. If an extension is required, the Administrative
Committee shall provide notice of the extension prior to the termination of the
90 day period. In no event may the extension exceed a total of 180 days from the
date of the original receipt of the claim.
Sec. 9.02 DENIAL OF CLAIM. If the claim or request is denied, the written
or electronic notice of denial shall state:
(a) The reason(s) for denial;
(b) Reference to the specific AGP SERP provisions on which the denial
is based;
(c) A description of any additional material or information required
and an explanation of why it is necessary; and
(d) An explanation of the AGP SERP's claims review procedures and the
time limits applicable to such procedures, including the right to bring a civil
action under section 502(a) of ERISA.
Sec. 9.03 FINAL DECISION. The decision on review shall normally be made
within 60 days after the Administrative Committee's receipt of claimant's claim
or request. If an extension of time is required for a hearing or other special
circumstances, the claimant shall be notified and the time limit shall be 120
days. The decision shall be in writing or in electronic form and shall:
(a) State the specific reason(s) for the denial;
(b) Reference the relevant AGP SERP provisions;
(c) State that the claimant is entitled to receive, upon request and
free of charge, and have reasonable access to and copies of all documents,
records and other information relevant to the claim for benefits; and
(d) State that the claimant may bring an action under section 502(a)
of ERISA.
All decisions on review shall be final and bind all parties concerned.
Sec. 9.04 REVIEW OF CLAIM. Any claimant whose claim or request is denied or
who has not received a response within 60 days may request a review by notice
given in writing or
8
electronic form to the Administrative Committee. Such request must be made
within 60 days after receipt by the claimant of the written or electronic notice
of denial, or in the event the claimant has not received a response, 60 days
after receipt by the Administrative Committee of the claimant's claim or
request. The claim or request shall be reviewed by the Administrative Committee
which may, but shall not be required to, grant the claimant a hearing. On
review, the claimant may have representation, examine pertinent documents, and
submit issues and comments in writing.
ARTICLE X
MISCELLANEOUS PROVISIONS
Sec. 10.01 NONALIENATION OF BENEFITS. None of the payments, benefits or
rights of any Participant under the AGP SERP shall be subject to any claim of
any creditor, and, in particular, to the fullest extent permitted by law, all
such payments, benefits and rights shall be free from attachment, garnishment,
trustee's process, or any other legal or equitable process available to any
creditor of such Participant. No Participant shall have the right to alienate,
anticipate commute, pledge, encumber or assign any of the benefits or payments
which he or she may expect to receive, contingently or otherwise, under the AGP
SERP, except any right to designate a beneficiary or beneficiaries in connection
with any form of benefit payment providing benefits after the Participant's
death.
Sec. 10.02 NO CONTRACT OF EMPLOYMENT. Neither the establishment of the AGP
SERP, nor any modification thereof, nor the creation of any fund, trust or
account, nor the payment of any benefits shall be construed as giving any
Participant or Employee, or any person whomsoever, the right to be retained in
the service of AGP, and all Participants and other Employees shall remain
subject to discharge to the same extent as if the AGP SERP had never been
adopted.
Sec. 10.03 SEVERABILITY OF PROVISIONS. If any provision of the AGP SERP
shall be held invalid or unenforceable, such validity or unenforceability shall
not affect any other provisions hereof, and the AGP SERP shall be construed and
enforced as if such provision had not been included.
Sec. 10.04 HEIRS, ASSIGNS AND PERSONAL REPRESENTATIVES. The AGP SERP shall
be binding upon the heirs, executors, administrators, successors and assigns of
the parties, including each Participant, present and future.
Sec. 10.05 HEADINGS AND CAPTIONS. The headings and captions herein are
provided for reference and convenience only, shall not be considered part of the
AGP SERP, and shall not be employed in the construction of the AGP SERP.
Sec. 10.06 GENDER AND NUMBER. Except where otherwise clearly indicated by
context, the masculine and the neuter shall include the feminine and the neuter,
the singular shall include the plural, and vice-versa.
Sec. 10.07 CONTROLLING LAW. The AGP SERP shall be construed and enforced
according to the laws of the Commonwealth of Pennsylvania to the extent not
preempted by federal law, which shall otherwise control, and exclusive of any
Pennsylvania choice of law provisions.
9
Sec. 10.08 PAYMENTS TO MINORS, ETC. Any benefit payable to or for the
benefit of a minor, an incompetent person or other person incapable of
receipting therefor shall be deemed paid when paid to such person's guardian or
to the party providing or reasonably appearing to provide for the care of such
person, and such payment shall fully discharge AGP, the Board, the
Administrative Committee, the Compensation/Pension Committee and all other
parties with respect thereto.
Sec. 10.09 LOST PAYEES. A benefit (including accrued interest) shall be
deemed forfeited if the Board or the Administrative Committee is unable to
locate a Participant to whom payment is due; provided, however, that such
benefit shall be reinstated if a claim is made by the proper payee for the
forfeited benefit.
Sec. 10.10 SECTION 409A. The AGP SERP is intended to comply with the
applicable requirements of section 409A of the Internal Revenue Code, and shall
be administered in accordance with section 409A to the extent section 409A
applies to the AGP SERP. Notwithstanding anything in the AGP SERP to the
contrary, with respect to benefits that are not Grandfathered Benefits,
distributions may only be made under the AGP SERP upon an event and in a manner
permitted by section 409A. To the extent that any provision of the AGP SERP
would cause a conflict with the requirements of section 409A of the Internal
Revenue Code, or would cause the administration of the AGP SERP to fail to
satisfy the requirements of section 409A, such provision shall be deemed null
and void to the extent permitted by applicable law.
IN WITNESS WHEREOF, and as evidence of its adoption of the AGP SERP, AGP
has caused the same to be executed by its duly authorized officer and its
corporate seal to be affixed hereto as of the 1st day of March 2005.
Attest: AMERIGAS PROPANE, INC.
___________________________________ By: _________________________________
Robert H. Knauss Eugene V.N. Bissell
Secretary President and Chief Executive Officer
Date: March 15, 2005
10