SEVERANCE AGREEMENT
Agreement made as of the 6th day of May, 1997, among Buckeye
Management Company, a Delaware corporation ("BMC"), Buckeye Pipe Line Services
Company, a Delaware corporation ("BPLSC") (BMC and BPLSC being hereinafter
collectively referred to as the "Company"), BMC Acquisition Company, a Delaware
corporation and the owner of BMC ("BAC"), and C. Xxxxxxx Xxxxxx ("Xxxxxx").
WHEREAS, BPLSC is a newly created corporation that is entering into
the business of managing oil pipeline businesses within the Buckeye Partners,
L.P. ("BPLP") group of operating partnerships (the "Partnerships") with which
BAC is associated through its subsidiary BMC, the general partner of BPLP; and
WHEREAS, Xxxxxx is an executive of BMC and is also being hired by
BPLSC as its President and Chief Operating Officer, and in connection therewith,
Xxxxxx will devote substantially all of his business, time and efforts to its
business affairs, and will also serve in executive capacities for BAC, BMC and
BPLSC; and
WHEREAS, the Company recognizes that the departure or distraction of
key management personnel would be detrimental to the business of the Company;
and
WHEREAS, the boards of directors of BAC, BMC and BPLSC have 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; and
WHEREAS, in consideration of Xxxxxx'x employment with BMC, his
accepting employment with BPLSC and agreeing not to compete with the Company in
the event that Xxxxxx'x employment is terminated, BMC and BPLSC, jointly and
severally, agree that Xxxxxx shall receive the compensation set forth in this
Agreement against the adverse financial and career impact on Xxxxxx in the event
Xxxxxx'x employment with the Company is terminated without cause, and BAC wishes
to guarantee such obligations;
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) "Board" shall mean the board of directors of BMC.
(b) "Cause" shall mean 1) misappropriation of funds or any act of
common law fraud, 2) habitual insobriety or substance abuse, 3) conviction of a
felony or any crime involving moral turpitude, or 4) willful misconduct or gross
negligence by Xxxxxx in the performance of his duties, the willful failure of
Xxxxxx to perform a material function of Xxxxxx'x duties hereunder, or Xxxxxx'x
engaging in a conflict of interest or other breach of fiduciary duty.
(c) "Change of Control" shall be deemed to have taken place if any
Person, as such term is used in sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), except the Company or any employee
benefit plan of the Company (or of any Affiliate or Associate, as defined in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, or any
Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such employee benefit plan), together with all
Affiliates and
-2-
Associates of such Person, shall become the Beneficial Owner, or the holder of
proxies, in the aggregate of 80% or more of the limited partnership units (the
"Units") of BPLP then outstanding; provided, however, that no "Change of
Control" shall be deemed to occur during any period in which any such Person,
and its Affiliates and Associates, are bound by the terms of a standstill
agreement under which such parties have agreed not to acquire more than 80% of
the Units then outstanding or to solicit proxies.
(d) "Compensation" shall mean $345,875.00.
(e) "Good Reason Termination" shall mean a Termination of Employment
initiated by Xxxxxx upon one or more of the following occurrences:
(A) any failure of the Company to comply with and satisfy any
of the terms of this Agreement;
(B) any significant reduction by the Company of the authority,
duties or responsibilities of Xxxxxx'x principal assignment with the
Company or a reduction in Xxxxxx'x compensation opportunity;
provided, however, that this clause (B) shall apply only in the
event that such reduction occurs following a Change of Control;
(C) any removal by the Company of Xxxxxx from the employment
grade or officer positions which Xxxxxx holds as of the effective
date hereof except in connection with promotions to higher office;
provided, however, that in the absence of a Change of Control solely
changing Xxxxxx'x reporting relationships shall not be grounds for a
"Good Reason Termination" hereunder;
-3-
(D) following a Change of Control, a transfer of Xxxxxx,
without his express written consent, to a location that is more than
100 miles from his principal place of business immediately preceding
the Change of Control; or
(E) following a Change of Control, Xxxxxx determines, in his
sole discretion in the period between the beginning of the 13th
month and the end of the 18 month after a Change of Control, that
circumstances have so changed that he is not willing to continue in
his position with the Company and elects a Termination of
Employment.
(f) "Phase Out Date" shall mean the first day of the calendar month
coincident with or next following Xxxxxx'x 62nd birthday.
(g) "Subsidiary" shall mean any corporation in which BAC, BPLSC or
BMC directly or indirectly, owns at least a 50% interest or an unincorporated
entity of which BAC, BPLSC or BMC, directly or indirectly, owns at least 50% of
the profits or capital interests.
(h) "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.
(i) "Termination of Employment" shall mean the termination of Xxxxxx'x
actual employment relationship with the Company.
2. Notice of Termination. Any Termination of Employment shall be
communicated by a Notice of Termination in accordance with Section 16 hereof.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which, in the case of a Good Reason Termination by Xxxxxx (i) indicates the
specific reasons for the termination, (ii) briefly summarizes the facts and
circumstances deemed to provide a basis for termination of Xxxxxx'x employment,
and (iii) if the Termination Date is other than the date of receipt of such
-4-
notice, specifies the Termination Date (which date shall not be more than 15
days after the giving of such notice).
3. Severance Compensation upon Termination.
(a) In the event of Xxxxxx'x involuntary Termination of Employment
for any reason other than Cause or in the event of a Good Reason Termination,
based only on occurrences described in clauses (A), (C) (and subject to the
proviso contained in clause (C)) or (E) of Section 1(e), the Company shall pay
to Xxxxxx, upon the execution of a release, in form and substance reasonably
satisfactory to the Chairman of the Board, subject to customary employment taxes
and deductions, within 15 days after the Termination Date a single sum in cash
equal to 1.5 multiplied by Xxxxxx'x Compensation but, except as provided below,
all other benefit coverages, retirement benefit accruals and fringe benefit
eligibility shall cease upon the Termination Date subject to applicable rights
under ERISA and COBRA.
(b) Subject to the provisions of Section 10 hereof and in lieu of any
payments under paragraph (a) above, in the event of Xxxxxx'x involuntary
Termination of Employment for any reason other than Cause or in the event of a
Good Reason Termination (other than pursuant to clause (E) of Section 1(e)), in
either case within two years following a Change of Control, the Company shall
pay to Xxxxxx, within fifteen days after the Termination Date (or as soon as
possible thereafter in the event that the procedures set forth in Section 10(b)
hereof cannot be completed within 15 days), a single sum in cash equal to 2.99
multiplied by Xxxxxx'x Compensation.
(c) Notwithstanding paragraph (a) and (b) above, for 18 months if a
payment is made under paragraph (a) or 36 months if a payment is made under
paragraph (b), without regard to the fact that payment is to be made in a single
sum, Xxxxxx shall be entitled to
-5-
continued coverage under the Company's medical and dental benefits plan at the
same level of coverage (and required employee contributions, if any) as Xxxxxx
was receiving at the time of his Termination Date, subject to the Company's
right to make changes to such plan for all of its executive level employees
generally and further subject to the Company's right to provide Xxxxxx with
cash, on a tax equivalent basis, such that Xxxxxx is able to purchase comparable
coverage on his own; provided, however, that this obligation of the Company
shall cease upon Xxxxxx'x obtaining new employment that provides Xxxxxx with
eligibility for medical benefits without a pre-existing condition limitation;
and, provided, further, that such extended coverage shall be in addition to, and
not as a substitute for, Xxxxxx'x COBRA rights which shall apply at the end of
such extended coverage. In the event that, at his Termination Date, Xxxxxx has
attained age 50, but not 55, Xxxxxx shall be treated as a retiree of the
Company, including for purposes of the Company's retiree medical and life
insurance plan, and, for purposes of the Company's Benefit Equalization Plan, as
if his Termination of Employment occurred on his attainment of age 55. Xxxxxx
(or his surviving spouse) will be entitled to commence his benefit under such
Plan on or after attaining age 55, with his benefit calculated as if the
Termination Date had occurred at age 55 but based on his service to the Company
only through the Termination Date.
(d) In the event Xxxxxx'x Phase Out Date would occur prior to 18
months (36 months if following a Change of Control) after the Termination Date,
the aggregate cash amount determined as set forth in (a) or (b) above, as
applicable, shall be reduced to an amount equal to such aggregate cash amount
multiplied by a fraction, the numerator of which shall be the number of days
from the Termination Date to Xxxxxx'x Phase Out Date and the denominator of
which shall be 548 (1095 if following a Change of Control).
-6-
(e) BAC hereby guarantees the payments and benefits required under
this Section and agrees to pay, or cause the payment of, such payments and
benefits in the event that the Company fails to do so.
4. Other Payments. The payment due under Section 3 hereof shall
be in addition to and not in lieu of any payments or benefits accrued for Xxxxxx
through the Termination Date under any other plan, policy or program of the
Company except that no payments shall be due to Xxxxxx under the Company's then
severance pay plan for employees.
5. Enforcement.
(a) In the event that the Company shall fail or refuse to make payment
of any amounts due Xxxxxx under Sections 3 and 4 hereof within the respective
time periods provided therein, the Company shall pay to an escrow agent, who
shall invest such sum with interest to be paid to the prevailing party, any
amount remaining unpaid under Section 3 or 4. In such event, the parties shall
then engage in arbitration in the City of Philadelphia, Pennsylvania in
accordance with the National Rules for the Resolution of Employment Disputes
then in effect of the American Arbitration Association, before a panel of three
arbitrators, one of whom shall be selected by the Company and one by Xxxxxx, and
the third of whom shall be selected by the other two arbitrators. Any award
entered by the arbitrators 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 arbitrators 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. If Xxxxxx prevails on at least one material issue which is the
subject of such arbitration, the Company shall be responsible for all of
-7-
the fees of the American Arbitration Association and the arbitrators and any
expenses relating to the conduct of the arbitration (including reasonable
attorneys' fees and expenses). Otherwise, each party shall be responsible for
his or its own expenses relating to the conduct of the arbitration (including
reasonable attorneys' fees and expenses) and shall equally share the fees of the
American Arbitration Association.
(b) In the event that an arbitration under paragraph (a) takes place
following a Change of Control, the Company shall pay Xxxxxx on demand the amount
necessary to reimburse Xxxxxx in full for all reasonable expenses (including all
attorneys' fees and legal expenses) incurred by Xxxxxx in enforcing any of the
obligations of the Company under this Agreement subject to Xxxxxx'x duty to
repay such sums to the Company in the event that he does not prevail on any
material issue which is the subject of such arbitration.
6. No Mitigation. Xxxxxx 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.
7. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit Xxxxxx'x 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 Xxxxxx may qualify, from
the date hereof through the Termination Date; provided, however, that Xxxxxx
hereby waives Xxxxxx'x right to receive any payments under any severance pay
plan or similar program applicable to other employees of the Company.
8. 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
-8-
any circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against Xxxxxx or
others.
9. 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.
10. 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 Xxxxxx, 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"), and
that it would be economically advantageous to Xxxxxx to reduce the Payment to
avoid or to reduce the taxation of excess parachute payments under Section 4999
of the Code, the aggregate present value of amounts payable or distributable to
or for the benefit of Xxxxxx 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 10, present value shall be determined in accordance
with Section 280G(d)(4) of the Code. Each of BPLSC, BAC and BMC covenant and
agree that it shall use its best efforts to obtain a vote of more than 75% of
its owners, or of the unitholders of BPLP, as applicable, pursuant to the
requirements of Section 280G(b)(5)(B) of the Code, in order to preclude the
limitations of this
-9-
Section from applying; provided, however, that nothing contained herein shall
result in BPLSC, BAC, BMC or BPLP being required to pay any taxes imposed on
Xxxxxx by reason of the provisions of Section 4999 of the Code.
(b) All determinations to be made under this Section 10 shall be made
by Deloitte & Touche (or the Company's independent public accountant immediately
prior to the change of control if other than Deloitte & Touche (the "Accounting
Firm")), which firm shall provide its determinations and any supporting
calculations both to the Company and Xxxxxx within 10 days of the Termination
Date. Any such determination by the Accounting Firm shall be binding upon the
Company and Xxxxxx. Within five 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 Xxxxxx such amounts as are then due to Xxxxxx 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 years after the Termination of
Employment, the Accounting Firm shall review the determination made by it
pursuant to the preceding paragraph. In the event that the Accounting Firm
determines that an Overpayment has been made, any such Overpayment shall be
treated for all purposes as a loan to Xxxxxx which Xxxxxx shall repay to the
Company together with interest 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 Xxxxxx to the Company if and to the extent such
payment would not reduce
-10-
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
Xxxxxx together with interest 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.
11. Confidential Information. Xxxxxx recognizes and acknowledges
that, by reason of his employment by and service to the Company, he has had and
will continue to have access to confidential information of the Company and its
Subsidiaries and Affiliates and of the Partnerships, including, without
limitation, information and knowledge pertaining to products and services
offered, innovations, designs, ideas, plans, trade secrets, proprietary
information, distribution and sales methods and systems, sales and profit
figures, customer and client lists, and relationships between the Company and
its Subsidiaries and affiliates and other distributors, customers, clients,
suppliers and others who have business dealings with the Company and its
Subsidiaries and Affiliates and the Partnerships ("Confidential Information").
Xxxxxx acknowledges that such Confidential Information is a valuable and unique
asset and covenants that he will not, either during or after his employment by
the Company, disclose or use any such Confidential Information to any person for
any reason whatsoever without the prior written
-11-
authorization of the Board, unless such information is in the public domain
through no fault of Xxxxxx or except as may be required by law.
12. Non-Competition.
(a) During his employment by the Company and for a period of 18 months
thereafter, Xxxxxx will not, unless acting with the prior written consent of the
Chairman of the Board, directly or indirectly, own, manage, operate, join,
control, finance or participate in the ownership, management, operation, control
or financing of, or be connected as an officer, director, employee, partner,
principal, agent, representative, consultant or otherwise with or use or permit
his name to be used in connection with, any business or enterprise engaged in by
the Company or any of its Subsidiaries or Affiliates or the Partnerships, either
during his employment by the Company or on the Termination Date, as applicable,
in any state in which such business or enterprise is so operated (whether or not
such business is physically located within those areas) (the "Geographic Area"),
or in any business that is a customer of such business or enterprise if the
Company or any of its Subsidiaries or Affiliates or the Partnerships derive at
least five percent of its respective gross revenues either during his employment
by the Company or on the Termination Date, as applicable, from such customer.
It is recognized by Xxxxxx that the business of the Company and its Subsidiaries
and Affiliates and the Partnerships and Xxxxxx'x connection therewith is or will
be involved in activity throughout the Geographic Area, and that more limited
geographical limitations on this non-competition covenant are therefore not
appropriate. Xxxxxx also shall not, directly or indirectly, during such 18
month period (a) solicit or divert business from, or attempt to convert any
client, account or customer of the Company or any of its Subsidiaries or
Affiliates or the Partnerships, whether existing at the date hereof or acquired
during Xxxxxx'x employment nor (b) following Xxxxxx'x employment,
-12-
solicit or attempt to hire any then employee of the Company or of any of its
Subsidiaries or Affiliates or the Partnerships.
(b) The foregoing restriction shall not be construed to prohibit the
ownership by Xxxxxx of less than five percent (5%) of any class of securities of
any corporation which is engaged in any of the foregoing businesses having a
class of securities registered pursuant to the Exchange Act, provided that such
ownership represents a passive investment and that neither Xxxxxx nor any group
of persons including Xxxxxx in any way, either directly or indirectly, manages
or exercises control of any such corporation, guarantees any of its financial
obligations, otherwise takes any part in its business, other than exercising his
rights as a shareholder, or seeks to do any of the foregoing.
13. Equitable Relief.
(a) Xxxxxx acknowledges that the restrictions contained in Sections 11
and 12 hereof are reasonable and necessary to protect the legitimate interests
of the Company and its affiliates, that the Company would not have entered into
this Agreement in the absence of such restrictions, and that any violation of
any provision of those Sections will result in irreparable injury to the
Company. Xxxxxx represents that his experience and capabilities are such that
the restrictions contained in Section 12 hereof will not prevent Xxxxxx from
obtaining employment or otherwise earning a living at the same general level of
economic benefit as anticipated by this Agreement. Xxxxxx further represents
and acknowledges that (i) he has been advised by the Company to consult his own
legal counsel in respect of this Agreement, and (ii) that he has had full
opportunity, prior to execution of this Agreement, to review thoroughly this
Agreement with his counsel.
-13-
(b) Xxxxxx agrees that the Company shall be entitled to preliminary
and permanent injunctive relief, without the necessity of proving actual
damages, as well as an equitable accounting of all earnings, profits and other
benefits arising from any violation of Sections 11 or 12 hereof, which rights
shall be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. In the event that any of the provisions of Sections 11
or 12 hereof should ever be adjudicated to exceed the time, geographic, service,
or other limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, service, or other limitations permitted by applicable law.
(c) Xxxxxx irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of Section 11 or 12 hereof,
including without limitation, any action commenced by the Company for
preliminary and permanent injunctive relief or other equitable relief, may be
brought in the United States District Court for the Eastern District of
Pennsylvania, or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in Delaware County,
Pennsylvania, (ii) consents to the non-exclusive jurisdiction of any such court
in any such suit, action or proceeding, and (iii) waives any objection which
Xxxxxx may have to the laying of venue of any such suit, action or proceeding in
any such court. Xxxxxx also irrevocably and unconditionally consents to the
service of any process, pleadings, notices or other papers in a manner permitted
by the notice provisions of Section 16 hereof.
(d) Xxxxxx agrees that he will provide, and that the Company may
similarly provide, a copy of Sections 11 and 12 hereof to any business or
enterprise (i) which he may directly or indirectly own, manage, operate,
finance, join, control or participate in the
-14-
ownership, management, operation, financing, control or control of, or (ii) with
which he may be connected as an officer, director, employee, partner, principal,
agent, representative, consultant or otherwise, or in connection with which he
may use or permit his name to be used; provided, however, that this provision
shall not apply in respect of Section 13 hereof after expiration of the time
period set forth therein.
14. Term of Agreement. The term of this Agreement shall be for
five years commencing on the date hereof and shall automatically be renewed for
additional periods of one year until the Company notifies Xxxxxx in writing, at
least 90 days in advance of expiration, that this Agreement will not be renewed.
If any notice of non-renewal occurs within two years after a Change of Control,
such notice shall constitute an involuntary Termination of Employment for
purposes of Section 3 above. Notwithstanding anything herein to the contrary,
this Agreement shall terminate if the employment of Xxxxxx with the Company
shall terminate for any reason other than as provided herein.
15. Successor Company. The Company shall require any successor or
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to Xxxxxx, 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
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement. As used in this
-15-
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.
16. 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:
Buckeye Management Company
0 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chairman
If to Xxxxxx, to:
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
or to such other names or addresses as the Company or Xxxxxx, as the case may
be, shall designate by notice to the other party hereto in the manner specified
in this Section. Any such notice shall be deemed delivered and effective when
received in the case of personal delivery, five days after deposit, postage
prepaid, with the U.S. Postal Service in the case of registered or certified
mail, or on the next business day in the case of overnight express courier
service.
17. 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.
18. Contents of Agreement, Amendment and Assignment.
(a) 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
-16-
changed, modified, extended or terminated except upon written amendment executed
by Xxxxxx and the Company and only if approved by the Board. The provisions of
this Agreement may provide for payments to Xxxxxx under certain compensation or
bonus plans under circumstances where such plans would not provide for payment
thereof. 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.
(b) Nothing in this Agreement shall be construed as giving Xxxxxx
any right to be retained in the employ of the Company.
(c) 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 Xxxxxx and the Company hereunder shall not be
assignable in whole or in part.
19. Severability. If any provision of this Agreement or
application thereof to anyone or under any circumstances shall be determined to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application.
20. Remedies Cumulative; No Waiver. No right conferred upon Xxxxxx
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 Xxxxxx in
-17-
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. Xxxxxx'x Acknowledgment. By executing this Agreement as of the
date first above written, Xxxxxx acknowledges that he has no grounds for
asserting that a Good Reason Termination exists as of that date and, therefore,
that no obligation under Section 3 exists at the current time. In addition,
Xxxxxx also acknowledges that the closing of the transaction pursuant to which
BPLSC is being created and his employment is being transferred to BPLSC shall
not be a Change of Control, an involuntary termination of Xxxxxx by BMC or BPLSC
or grounds for Xxxxxx to invoke a Good Reason Termination.
-18-
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first above written.
ATTEST:
[Seal] BUCKEYE PIPE LINE SERVICE COMPANY
/S/ Xxxx X. Xxxxxxx /S/ Xxxxxxx X. Xxxxxx
--------------------------- --------------------------------
Witness Senior Vice President, Administration and
General Counsel
ATTEST:
[Seal] BMC ACQUISITION COMPANY
/S/ Xxxx X. Xxxxxxx By /S/ Xxxxxx X. Xxxxxx
--------------------------- ------------------------------------
Witness Senior Vice President, Finance and
Chief Financial Officer
ATTEST:
[Seal] BUCKEYE MANAGEMENT COMPANY
Xxxx X. Xxxxxxx By /S/ Xxxxxxx X. Xxxxxx
--------------------------- ------------------------------------
Witness Senior Vice President, Administration and
General Counsel
/S/ Xxxxxxx X. Xxxxxxx /S/ C.Xxxxxxx Xxxxxx
--------------------------------- -------------------------------------
Witness
-19-
