1
AMERIGAS PROPANE, INC.
CHANGE OF CONTROL AGREEMENT
2
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 Reduction of Payments.......................................... 15
Section 12. Term of Agreement...................................................... 17
Section 13. Successor Company...................................................... 18
Section 14. Notice................................................................. 19
Section 15. Governing Law.......................................................... 20
Section 16. Contents of Agreement, Amendment, and Assignment....................... 20
Section 17. No Right to Continued Employment....................................... 20
Section 18. Successors and Assigns................................................. 20
Section 19. Severability........................................................... 21
Section 20. Remedies Cumulative; No Waiver......................................... 21
Section 21. Miscellaneous.......................................................... 21
Section 22. Arbitration............................................................ 22
Signatures.......................................................................... 23
(i)
3
AGREEMENT
Agreement made as of the 27th day of January, 1997, between AmeriGas
Propane, Inc., a Pennsylvania corporation (the "Company"), and
___________________________________ (the "Employee").
INTRODUCTION
The Employee is presently employed by the Company as its
___________________________________. 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 foster 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.
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.
4
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 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 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
-2-
5
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 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
-3-
6
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.
(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
-4-
7
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 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
-5-
8
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 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
-6-
9
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 ownership immediately prior to such
Propane Business Combination of the Company's voting securities or the
Outstanding Units, as the case may be,
-7-
10
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
Outstanding Units immediately prior to such sale or disposition, unless, in any
case, the members of the Board in office
-8-
11
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 days preceding the
-9-
12
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,
-10-
13
Pennsylvania) by more than fifty miles, other than on a
temporary basis (less than twelve (12) months); and
(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
-11-
14
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,
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
-12-
15
Period and the denominator of which is thirty-six (36), subject to customary
employment taxes and deductions.
(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
-13-
16
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 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
-14-
17
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.
(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 aggregate present value of amounts payable
or distributable to or for the benefit of the Employee pursuant to this
Agreement (such payments or distributions pursuant to this Agreement are
hereinafter referred to as "Agreement Payments") shall be reduced (but not
below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount
expressed in present value which maximizes the aggregate present value of
Agreement Payments without causing any Payment to be subject to the taxation
under Section 4999 of the Code. For purposes of this Section 11, present value
shall be determined in accordance with Section 280G(d)(4) of the Code, as it
may be amended, or the successor section, in effect at the time of the
determination.
-15-
18
(b) All determinations to be made under this Section 11 shall
be made by Coopers & Lybrand (or the Company's independent public accountant
immediately prior to the Change of Control if other than Coopers & Lybrand and
Coopers & Lybrand declines or is unable to serve (the "Accounting Firm")),
which firm shall provide its determinations and any supporting calculations
both to the Company and the Employee within ten (10) days of the Termination
Date. Any such determination by the Accounting Firm shall be binding upon the
Company and the Employee. The Employee shall then have the right to determine
which of the Agreement Payments shall be eliminated or reduced in order to
produce the Reduced Amount in accordance with the requirements of this Section.
Within five (5) days after this 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) As a result of the uncertainty in the application of
Section 280G of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Agreement Payments, as the case
may be, will have been made by the Company which should not have been made
("Overpayment") or that additional Agreement Payments which have not been made
by the Company could have been made ("Underpayment"), in each case, consistent
with the calculations required to be made hereunder. Within two (2) years after
the Termination of Employment, the Accounting Firm shall review the
determination made by it pursuant to the preceding paragraph and the Company
shall cooperate and provide all information necessary for such review. In the
event that the Accounting Firm determines that an Overpayment has been
-16-
19
made, any such Overpayment shall be treated for all purposes as a loan to the
Employee which the Employee shall repay to the Company together with interest
from the date of payment under this Agreement at the applicable Federal rate
provided for in Section 7872(f)(2) of the Code (the "Federal Rate"); provided,
however, that no amount shall be payable by the Employee to the Company if and
to the extent such payment would not reduce the amount which is subject to
taxation under Section 4999 of the Code. In the event that the Accounting Firm
determines that an Underpayment has occurred, any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Employee together
with interest from the date of payment under this Agreement at the Federal
Rate.
(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 willful misconduct of the Accounting Firm.
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
-17-
20
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 the Company as hereinbefore defined and any such
successor or successors to its business and/or assets, jointly and severally.
-18-
21
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.
460 North Gulph Road
King of Prussia, PA 19406
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.
-19-
22
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.
-20-
23
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.
-21-
24
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 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).
-22-
25
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, have executed this Agreement as of the date first above written.
ATTEST:
[Seal] AMERIGAS PROPANE, INC.
By
- ----------------------- -------------------------
Robert H. Knauss Lon R. Greenberg
Secretary Its: Chariman, President and
Chief Executive Officer
- ----------------------- ---------------------------
Witness Employee
-23-