EXHIBIT 10.33
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made this 30th day of January, 1997, by and between
Petro Stopping Centers, L.P., a Delaware limited partnership (the "Company"),
and XXXXX X. XXXXXXXX, XX. ("Employee").
RECITALS:
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A. The Company is engaged in the business of owning, operating, and
franchising truck stops and related services.
B. The Company desires that Employee serve as Senior Vice President of
Marketing and Operations of the Company.
C. Employee has indicated his willingness to accept such employment
pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the parties' mutual premises and
covenants as hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Employment. The Company hereby agrees to employ Employee and Employee
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hereby agrees to accept employment with the Company in accordance with the terms
and conditions set forth in this Agreement.
2. Term. Subject to the provisions for termination as hereinafter
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provided, the term of this Agreement shall be effective as of the date hereof
(the "Effective Date") and shall continue through December 31, 1999 (the
"Employment Term"). If this Agreement is terminated pursuant to Section 9,
Employee shall only be entitled to receive those amounts expressly provided for
in Section 9 and no other. It is expressly understood and agreed that
Employee shall not be entitled to receive salary and benefits through the end of
the term of this Agreement unless he is then an employee of the Company or
unless he is so entitled to the same pursuant to Section 9 hereof.
3. Compensation.
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(a) Salary. For all services rendered by Employee pursuant to this
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Agreement, the Company shall pay to Employee an annual salary of $135,000 (the
"Base Salary"), payable in substantially equal installments in accordance with
the Company's customary practices, but in no event less often than twice monthly
(subject to all applicable withholdings, set offs, and taxes). The amount of
the Base Salary shall be reviewed by the Company's Board of Directors (the
"Board of Directors"), the Company's Compensation Committee or any equivalent
thereof (the "Compensation Committee"), and may be increased (but not decreased)
at least once each year to reflect that it is commensurate with the position,
the value of the services performed by Employee.
(b) Bonus. In addition to the Base Salary, Employee shall be entitled
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to participate in or benefit from any bonus/incentive plan and policies of the
Company, to the extent and in the same manner as other officers of the Company
similarly situated to Employee in their job responsibilities and title. Except
as otherwise provided in this Agreement, if during the Employment Term Employee
dies or employment is terminated pursuant to Section 9(a), Section 9(b), Section
9(c)(ii) or 9(c)(iii) hereof, the amount of the bonus for the fiscal year in
which such
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event occurs shall be pro rated based on the number of full months (out of
twelve months) that Employee was employed by the Company during such fiscal year
(such prorated bonus shall be payable within 60 days after the end of such
fiscal year). If Employee's employment is terminated pursuant to Section
9(c)(ii) hereof, Employee will not receive any portion of the bonus that he
would have received for such fiscal year had this Agreement not been so
terminated.
(c) Other. In addition to any other compensation paid to Employee
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pursuant to the provisions of this Agreement, the Company may (but shall not be
obligated to) pay Employee additional compensation in an amount and manner and
at such time as is determined within the sole discretion of the Board of
Directors or the Compensation Committee.
4. Duties. Employee agrees during his employment under this Agreement to
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provide services on behalf of the Company as Senior Vice President of Marketing
and Operations and to perform any other duties and assignments relating to the
business of the Company or its affiliates as may be assigned to him by the Board
of Directors or by any officer of the Company having supervision over his
employment. Employee shall report directly to the President of the Company.
Employee shall devote his full time, attention, energies and efforts to
performing his duties and promoting the Company's best interests on behalf of
the Company, and will not engage in any other outside employment (except
personal investment for his own account, and ownership and operation of entities
engaged in
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business with the Company, as approved by the Board of Directors), provided,
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however, that investments in competing businesses shall be limited to one
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percent (1%) or less of the capital stock of public companies) without the prior
written approval of the Board of Directors. Nothing herein shall preclude
Employee from serving on boards of directors of other entities which do not
compete with the Company.
5. Working Facilities. The Company, at its own cost, shall furnish
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Employee with office facilities, technical and secretarial personnel, supplies,
equipment and other facilities and services appropriate to his position and
adequate for the performance of his duties hereunder.
6. Expenses. In addition to the compensation provided for under Section
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3 hereof, the Company agrees to pay for (or to reimburse Employee for) all
reasonable business, travel and entertainment expenses incurred by Employee in
pursuance of his duties hereunder in accordance with established Company policy
from time to time in effect. Employee shall furnish the Company with a monthly
statement and a description of the nature of the business purpose of each
expense for which he seeks reimbursement.
7. Vacation. At such reasonable time as the Company shall in its
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discretion permit, Employee shall be entitled without loss of pay to absent
himself voluntarily from the performance of his employment under this Agreement,
all such voluntary absences to count as vacation time; provided, that:
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(a) Such paid vacation shall consist of 15 working days per year.
Unused vacation days may be carried forward from one year to the next without
limitation to the extent permitted by the Company's then current policy.
(b) Upon the termination or nonrenewal of this Agreement, Employee
shall be entitled to receive compensation for all earned but unused vacation
days to the extent permitted by the Company's then current policy.
(c) In addition to the aforesaid paid vacations, Employee shall be
entitled (i) to all paid holidays and reasonable sick leave given by the Company
to its senior management and (ii) without loss of pay to absent himself
voluntarily from the performance of his employment with the Company for such
additional periods of time and for such valid and legitimate reasons as the
Board of Directors in its sole discretion may determine.
8. Other Benefits. During the Employment Term, Employee and his spouse
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and dependents shall be entitled to participate in any and all group insurance,
medical benefit, disability insurance, pension, profit sharing or other employee
benefit plans, including but not limited to the Company's 401(k) plan, made
generally available to employees of the Company. Employee shall be entitled to
participate in the Company's Executive Equity Appreciation Plan in the same
manner as other executive officers of the Company participate.
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9. Termination. This Agreement may be terminated in the following
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manner:
(a) This Agreement may be terminated upon sixty (60) days' prior
written notice given by Employee to the Company. This Agreement shall terminate
immediately upon the death of Employee. If this Agreement is terminated
pursuant to this Section 9(a), Employee or his heirs or assigns, as applicable,
shall only be entitled to receive any Base Salary accrued through such date of
termination and any bonus to which he is entitled pursuant to Section 3(b) of
this Agreement.
(b) This Agreement may be terminated upon thirty (30) days' prior
written notice delivered by Employee to the Company for "good reason." For
purposes hereof, "good reason" shall mean only a material reduction of the
Employee's authority, substantial change in work conditions, material decrease
of compensation or benefits, or relocation of his principal workplace to a place
over 50 miles from his initial principal workplace hereunder without Employee's
consent.
(c) This Agreement shall be terminable by the Company:
(i) at the Company's option upon thirty (30) days' prior written
notice if, because of injury, illness or other incapacity, whether physical or
mental, Employee becomes unable to perform all or substantially all of his
duties hereunder on a full-time basis for a period of four (4) full months or
more during any six (6) consecutive month period, in which event Employee shall
be entitled to receive Employee's compensation and benefits as shall
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have been earned or vested through the date of such determination of disability
and retain all then vested rights, privileges, and benefits;
(ii) at the Company's option upon written notice to Employee in
the event of: (A) willful failure by Employee to substantially and materially
perform his duties hereunder (other than any such failure resulting from
Employee's exercise of business judgment or incapacity due to physical or mental
illness), commission of a fraud on the Company, breach of fiduciary duty
involving material amount of personal gain, material breach of this Agreement,
or engagement of Employee in willful misconduct materially and demonstrably
injurious or detrimental to the Company or its affiliates, in each case which
continues and is not cured by Employee within thirty (30) days (the "Cure
Period") after a written notice and demand for material and substantial
performance is delivered to Employee by the Board of Directors which
specifically identifies the manner in which the Board of Directors believes that
Employee has committed breach, engaged in aforementioned misconduct or fraud, or
failed to substantially perform his material duties; provided, however,
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notwithstanding any provisions to the contrary herein, such Cure Period shall be
extended for up to an additional thirty (30) day period in the event Employee
commences cure within the applicable Cure Period and continues to pursue
compliance with reasonable diligence thereafter; or (B) upon the conviction of
Employee of any criminal
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or fraudulent act (other than minor traffic violations or other minor
violations); or
(iii) Otherwise at the Company's option upon thirty (30) days'
prior written notice except no notice shall be required in the event of a
Company termination pursuant to Section 6.5 of the Partnership Agreement (as
defined below).
Except as otherwise provided in the Partnership Agreement of the Company,
Employee agrees that upon any termination of this Agreement he shall resign from
all directorships, offices and other positions with the Company and its
subsidiaries and affiliates.
Notwithstanding any provisions to the contrary herein, in the event that
the Employee's employment under this Agreement is terminated pursuant to Section
9(b), 9(c)(i) or 9(c)(iii), the Company shall continue to pay Employee his then
current Base Salary and the health/insurance benefits to which he is entitled
pursuant to Section 8 of this Agreement for twelve months (the "Termination
Compensation Period") from the effective date of such termination. In addition,
to the extent permitted by the Company's policies, Employee shall be entitled to
continue his and his family's participation in the Company's medical benefit
plan or plans but shall not be entitled to any other benefits, bonuses or
compensation unless otherwise specifically provided herein.
10. Non-Competition. During the employment of Employee with the Company
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pursuant to this Agreement and during any time within a two-year period after
the date of his termination of employment in accordance with this Agreement,
Employee agrees that he shall
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comply with the terms and conditions of the Noncompetition Covenant as set forth
on Exhibit A hereto (the "Noncompetition Covenant") and the Nonsolicitation
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Covenant as set forth on Exhibit B hereto (the "Nonsolicitation Covenant").
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11. Confidentiality. Employee acknowledges that as a result of Employee's
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employment with the Company, Employee will necessarily become informed of, and
have access to, certain valuable and confidential information of the Company,
including, without limitation, trade secrets, technical information, plans,
lists of customers, data, records, fee schedules, computer programs, manuals,
processes, methods, intangible rights, contracts, agreements, licenses, and
personnel information (collectively, the "Confidential Information"), and that
the Confidential Information, even though it may be contributed, developed, or
acquired in whole or in part by Employee, is the Company's exclusive property to
be held by Employee in trust and solely for the Company's benefit. Accordingly,
except as required by law, or for the performance of Employee's duties pursuant
to this Agreement, Employee shall not, at any time during the term of this
Agreement or thereafter, whether or not in the employ of the Company, its
affiliates or their successors, communicate, reveal, report, publish, copy,
divulge, use for the benefit of or otherwise disclose to any person, firm,
corporation or association, any of the Confidential Information of the Company,
its affiliates and/or any related corporation in its business and communicated
to or acquired by Employee while in the employment of the Company or its
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affiliates; provided that this Section shall not be violated by the
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communication or use by Employee of information which is or has become publicly
known without any breach by Employee of his obligations under this Section 11.
Employee agrees that any and all files, working papers, tapes, documents,
memoranda or other materials used or prepared by him in the course of his
employment shall be and remain the sole property of the Company. Upon
termination of employment, Employee shall not, without the written consent of
the Board of Directors of the Company, remove any originals or copies of any
files, working papers, tapes, documents, memoranda or other materials of the
Company or its affiliates, and shall turn over to the Company all such materials
and deliverable Confidential Information which are in his possession, custody or
control; provided, however, in the event Employee is alleged to have committed
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any act or omission which would be grounds for the termination of this Agreement
pursuant to Section 9(c)(ii)(A) hereof, or Employee requires information
relating to personal financial or tax matters, Employee shall be given access,
during normal business hours at the office of the Company where the materials
that he desires to inspect are maintained, to any confidential information or
other materials which Employee reasonably believes are necessary therefor.
Employee shall be permitted, at his own expense, to make copies of any such
Confidential Information; provided, that Employee shall not use such copies in a
manner that violates this Section 11.
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12. Indemnification.
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(a) The Company shall, to the extent provided in the Amended and
Restated Limited Partnership Agreement of the Company dated as of January 30,
1997 (the "Partnership Agreement"), indemnify and hold harmless Employee from
any and all losses, damages, claims or expenses that may be asserted against
Employee at any time in connection with his services for the Company, his
employment hereunder or that may otherwise derive from Employee's employment as
contemplated hereby.
(b) The Company may, but shall not be required to, maintain such
insurance for the protection of its officers and directors as is appropriate and
customary for entities engaged in the Company's business.
13. Notices. Any notice, request, demand or other communications required
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or permitted to be given under this Agreement shall be in writing and shall be
effective and deemed to have been duly given when delivered personally or on the
earlier to occurs of (a) the date of delivery as shown by the return receipt;
(b) four (4) days after the mailing thereof by registered or certified mail,
return receipt requested, with first class postage prepaid; (c) confirmation of
receipt of telecopy; or (d) the day of delivery by a nationally recognized
overnight delivery service. All notices shall be addressed to the person at the
addresses set forth on the signature page hereto. Any party hereto may at any
time and from time to time change its address for purpose of receiving notices
by giving notice thereof to the other party as
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provided in this Section 13. Any notice which is required to be made within a
stated period of time shall be deemed timely if made before midnight of the last
day of such period.
14. Alteration or Amendment. No change or modification of this Agreement
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shall be valid unless the same is in writing and signed by all the parties. No
waiver of any provision of this Agreement shall be valid unless in writing and
signed by the person against whom it is sought to be enforced. The failure of
any party at any time to insist upon strict performance of any condition,
promise, agreement or understanding set forth herein shall not be construed as a
waiver or relinquishment of the right to insist upon strict performance of the
same or any other condition, promise, agreement or understanding at a future
time.
15. Severability. If this Agreement or any portion thereof is, or the
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transactions contemplated hereby are, found to be inconsistent or contrary to
any valid applicable laws or official orders, rules and regulations, the
inconsistent or contrary provision of this Agreement shall be null and void and
such laws, orders, rules and regulations shall control and, as so modified, this
Agreement shall continue in full force and effect; provided, however, that
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nothing herein contained shall be construed as a waiver of any right to question
or contest any such law, order, rule or regulation in any forum having
jurisdiction.
16. Governing Law. This Agreement shall be subject to and governed by the
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laws of the State of Texas regardless of applicable conflict of laws rules or
principles or the fact that either or
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both of the parties now is or may become a resident of a different state or
country.
17. Benefit and Burden. This Agreement shall inure to the benefit of, and
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shall be binding upon, the parties hereto and their respective successors,
assigns, heirs, and personal representatives. This Agreement shall not be
assignable by Employee, but may be assigned by the Company.
18. Authority. The person executing this Agreement on behalf of the
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Company hereby certifies that he or she has full power and authority to execute
and deliver this Agreement on behalf of the Company.
19. Entire Agreement. This document contains the entire agreement between
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the parties. No statement, promises or inducements made by any party hereto, or
agent of either party hereto, which is not contained in this written contract,
shall be valid or binding; and this contract may not be enlarged, modified or
altered except in writing and signed by all the parties.
20. Additional Documents and Acts. In connection with this Agreement, as
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well as all transactions contemplated by this Agreement, each Party agrees to
execute and deliver such additional documents and instruments, provide all
information and to perform such additional acts as may be necessary or
appropriate to effectuate, carry out and perform all of the terms, provisions
and conditions of this Agreement and all such transactions. All approvals of a
Party hereto shall be in writing.
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21. Survival. The provisions of Sections 9 through 21 of this Agreement
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shall survive the termination of this Agreement without limitation except as
otherwise expressly stated therein.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its duly authorized officer and Employee has executed this Agreement on the date
and year first above written.
PETRO STOPPING CENTERS, L.P.
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx x. Xxxxxxxx Xx.
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Title: Pres.
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Address for Notice:
0000 Xxxxxx Xx.
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Xx Xxxx, XX 00000
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EMPLOYEE
/s/ XXXXX X. XXXXXXXX, XX.
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Xxxxx X. Xxxxxxxx, Xx.
Address for Notice:
0000 Xxxxxx Xx.
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Xx Xxxx, XX 00000
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