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EXHIBIT 10.27
AMERIGAS PROPANE, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
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TABLE OF CONTENTS
Article No. Page No.
I. Purpose and Term of Plan............................ 2
II. Definitions......................................... 3
III. Participation and Vesting........................... 5
IV. Benefits............................................ 5
V. Form and Timing of Benefit Distribution............. 6
VI. Funding of Benefits................................. 6
VII. The Committee....................................... 7
VIII. Amendment and Termination........................... 9
IX. Miscellaneous Provisions............................ 10
SIGNATURES................................................ 11
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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.
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ARTICLE II
DEFINITIONS
Sec. 2.01 "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. 2.02 "AGP" shall mean AmeriGas Propane, Inc. and its Subsidiaries
and Affiliates.
Sec. 2.03 "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. 2.04 "Board" shall mean the Board of Directors of AGP.
Sec. 2.05 "Committee" shall mean the administrative committee
designated pursuant to Article VII of the Plan to administer the Plan in
accordance with its terms.
Sec. 2.06 "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, including Deferred Compensation, whether or not paid in that
Plan year. Compensation shall be pro-rated for all partial fiscal years during
which the Employee is a Participant.
Sec. 2.07 "Deferred Compensation" shall mean so much 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 annual bonus plan for years beginning prior to the
Effective Date.
Sec. 2.08 "Effective Date" shall mean October 1, 1996.
Sec. 2.09 "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 and no retroactive
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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 Plan.
Sec. 2.10 "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, then the "Reemployment Commencement Date" shall be the first day on
which the Participant became an Employee after the most recent such interruption
of the employment relationship between the Employee and AGP or any of its
Subsidiaries or Affiliates, unless the Committee determines otherwise.
Sec. 2.11 "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 Committee may designate.
Sec. 2.12 "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. 2.13 "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 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.
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ARTICLE III
PARTICIPATION AND VESTING
Sec. 3.01 Vesting. Benefits under this Plan shall vest on the fifth
anniversary of a Participant's Employment Commencement Date, unless the
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 26 U.S.C. Sec. 401(a)(17) and 10% of the
Participant's Compensation, if any, in excess of said maximum recognizable
compensation.
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 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.
Sec. 4.04 Divesture. 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.
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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. 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 cause; in no event shall such payment be
made later than the later of (i) ninety (90) days after a Participant's
retirement or Termination for a reason other than Cause, or (ii) December 31 of
the year in which such retirement or termination occurs.
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.
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ARTICLE VII
THE COMMITTEE
Sec. 7.01 Appointment and Tenure of Committee Members. The Committee
shall consist of one or more persons who shall be appointed by and serve at the
pleasure of the Chief Executive Officer of AGP (the "CEO"). Any Committee member
may resign by delivering his or her written resignation to the CEO. Vacancies
arising by the death, resignation or removal of a Committee member may be filled
by the CEO.
Sec. 7.02 Meetings; Majority Rule. Any and all acts of the Committee
taken at a meeting shall be by a majority of all members of the Committee. The
Committee may act by vote taken in a meeting (at which a majority of members
shall constitute a quorum). The Committee may also act by unanimous consent in
writing without the formality of convening a meeting.
Sec. 7.03 Delegation. The Committee may, by majority decision, delegate
to each or any one of its number, 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 Committee,
even though such person alone may sign any document required by third parties.
The Committee shall elect one of its number to serve as Chairperson. The
Chairperson shall preside at all meetings of the Committee or shall delegate
such responsibility to another Committee member. The Committee shall elect one
person to serve as Secretary to the Committee. All third parties may rely on any
communication signed by the Secretary, acting as such, as an official
communication from the Committee.
Sec. 7.04 Authority and Responsibility of the Committee. The Committee
shall have only such authority and responsibilities as are delegated to it by
the CEO or specifically under this Plan. 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;
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(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 Committee Members. The members of the
Committee shall serve without compensation for their services as such, but all
expenses of the Committee shall be paid or reimbursed by AGP.
Sec. 7.06 Committee Discretion. Any discretion, actions or
interpretations to be made under the Plan by the 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 Committee. Each member of the
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 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 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 Committee member may be
entitled pursuant to the by-laws of AGP. Service on the Committee shall be
deemed in partial fulfillment of the Committee member's function as an employee,
officer, director of AGP, if the Committee member also serves in that capacity.
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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 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 Plan 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.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Sec. 9.01 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. 9.02 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. 9.03 Severability of Provisions. If any provision of the AGP SERP
shall be held invalid or unenforceable, such invalidity 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. 9.04 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. 9.05 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. 9.06 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.
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Sec. 9.07 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.
Sec. 9.08 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 Committee and
all other parties with respect thereto.
Sec. 9.09 Lost Payees. A benefit (including accrued interest) shall be
deemed forfeited if the Board or the 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.
IN WITNESS WHEREOF, and as evidence of its adoption of the Plan, AGP
has caused the same to be executed by its duly authorized officer and its
corporate seal to be affixed hereto as of the _____ day of ___________, 1997.
Attest: AMERIGAS PROPANE, INC.
_________________________ By: ________________________________
Robert H. Knauss Lon R. Greenberg
Secretary Chairman of the Board of Directors
and Chief Executive Officer
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