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EXHIBIT 10.11
HERITAGE HOLDINGS, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of April 15,
1998 ("Effective Date") by and between Heritage Holdings, Inc. ("Company") and
Xxxxxxx X. Xxxxxxxx ("Employee").
WHEREAS, Employee is currently the Vice President Administration of the
Company; and
WHEREAS, the Company desires for Employee to continue in such capacity
with the Company and Employee is willing to continue serving in Employee's
current capacity, on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, and agreements contained herein, and for other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions and Interpretations
1.1. Definitions
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, the following terms shall have the
following respective meanings:
"Base Salary" shall have the meaning specified in Section 3.1.
"Board" shall mean the Board of Directors of the Company.
"Confidential Information" shall have the meaning specified in
Section 5.1(a).
"Continuation Period" shall have the meaning specified in
Section 4.5(a).
"Disability" shall mean a physical or mental condition of
Employee that, in the good faith judgment of not less than a majority
of the entire membership of the Board, based upon certification by a
licensed physician reasonably acceptable to Employee and the Board, (i)
prevents Employee from being able to perform the services required
under this Agreement, (ii) has continued for a period of at least 180
days during any 12-month period, and (iii) is expected to continue.
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"Dispute" shall have the meaning specified in Article VI.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Expiration Date" shall have the meaning specified in Section
2.2.
"Good Reason" shall mean any of the following:
(i) the assignment to Employee of any duties inconsistent
with Employee's position (including status, offices,
titles and reporting requirements), authority, duties
or responsibilities, excluding for this purpose an
isolated, unsubstantial and inadvertent action not
taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof
given by Employee. It is agreed and understood the
Employee's title shall change to Vice President,
Corporate Development upon the transfer of
responsibilities from G. A. Xxxx.
(ii) the Company's requiring Employee to be based at any
office other than the Company's Corporate
Headquarters;
(iii) any termination by the Company of Employee's
employment other than as expressly permitted by this
Agreement;
(iv) any failure by the Company to comply with and satisfy
Section 7.5 (requiring the Company to require any
successor to expressly assume and agree to perform
all obligations under this Agreement); or
"Misconduct" shall mean one or more of the following:
(i) the willful and continued failure by Employee to
perform substantially his duties hereunder (other than any
such failure resulting from Employee's incapacity due to
physical or mental illness) after written notice of such
failure has been given to Employee by the Company and Employee
has had a reasonable period (not to exceed 15 days) to correct
such failure;
(ii) conviction of Employee for any felony or any
other crime involving dishonesty or moral turpitude which is
materially detrimental to the Company;
(iii) any act or omission by Employee which
materially damages the integrity, reputation or financial
viability of the Company or its affiliates; or
(iv) a breach or violation by Employee of (a) any
material provision of this Agreement or (b) any material
Company employment policy, which, if capable of being
remedied, remains unremedied for more than 15 days after
written notice thereof is given to Employee by the Company.
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For purposes of this definition, no act or failure to act on Employee's part
shall be considered "Misconduct" if done or omitted to be done by Employee in
good faith and in the reasonable belief that such act or failure to act was in
the best interest the Company or in furtherance of Employee's duties and
responsibilities hereunder.
"Notice of Discontinuance" shall have the meaning specified in
Section 2.2.
"Notice of Termination" shall mean a notice purporting to
terminate Employee's employment in accordance with Section 4.1 or 4.2.
Such notice shall specify the effective date of such termination, which
date shall not be less than 30 (10 in the case of a termination by the
Company for Misconduct) nor more than 60 days after the date such
notice is given. If such termination is by Employee for Good Reason or
by the Company for Disability or Misconduct, such notice shall set
forth in reasonable detail the reason for such termination and the
facts and circumstances claimed to provide a basis therefor. Any notice
purporting to terminate Employee's employment which is not in
compliance with the requirements of this definition shall be
ineffective.
"Person" shall mean and include an individual, a partnership,
a joint venture, a corporation, a trust and an unincorporated
organization.
"Term" shall have the meaning specified in Section 2.2.
"Termination Date" shall mean the termination date specified
in a Notice of Termination delivered in accordance with this Agreement.
1.2. Interpretations
(a) In this Agreement, unless a clear contrary intention appears, (i)
the words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Article, Section or
other subdivision, (ii) reference to any Article or Section, means such Article
or Section hereof, (iii) the words "including" (and with correlative meaning
"include") means including, without limiting the generality of any description
preceding such term, and (iv) where any provision of this Agreement refers to
action to be taken by either party, or which such party is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such party.
(b) The Article and Section headings herein are for convenience only
and shall not affect the construction hereof.
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ARTICLE II
Employment; Term; Position and Duties; Etc.
2.1. Employment
The Company agrees to continue Employee's employment with the Company
and Employee agrees to remain in the employment of the Company, in each case on
the terms and conditions set forth in this Agreement.
2.2. Term of Employment
Unless sooner terminated pursuant to Article IV, the term of Employee's
employment under this Agreement (the "Term") shall commence on the Effective
Date and shall continue until April 30, 2000 (the "Expiration Date"); provided,
however, that beginning on January 1, 2000 and on each January 1 thereafter, the
Expiration Date shall be automatically extended one additional year unless,
prior to any such January 1 either party (i) shall give written notice to the
other (a "Notice of Discontinuance") that no such automatic extension shall
occur after the date of such notice or (ii) shall give a Notice of Termination
to the other party pursuant to Section 4.1 or 4.2, as the case may be. No Notice
of Discontinuance given by the Company shall be effective unless given pursuant
to instructions set forth in a resolution duly adopted by the affirmative vote
of a least a majority of the entire membership of the Board.
2.3. Position and Duties
(a) While employed hereunder, Employee shall serve as Vice President
Administration of the Company and shall have and may exercise all of the powers,
functions, duties and responsibilities normally attributable to such position.
Employee shall have such additional duties and responsibilities commensurate
with such position as from time to time may be reasonably assigned to Employee
by the Board or the Chief Executive Officer of the Company. While employed
hereunder, Employee shall (i) report directly and exclusively to the Chief
Executive Officer of the Company and (ii) observe and comply with all lawful
policies, directions and instructions of the Board and the Chief Executive
Officer of the Company which are consistent with the foregoing provisions of
this paragraph (a).
(b) While employed hereunder, Employee shall devote substantially all
of his business time, attention, skill and efforts to the faithful and efficient
performance of his duties hereunder. Notwithstanding the foregoing, Employee may
engage in the following activities so long as they do not interfere in any
material respect with the performance of Employee's duties and responsibilities
hereunder: (i) serve on corporate, civic, religious, educational and/or
charitable boards or committees and (ii) manage his personal investments.
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(c) While employed hereunder, Employee shall conduct himself in such a
manner as not to knowingly prejudice, in any material respect, the reputation of
the Company or any of its affiliates, including Heritage Propane Partners, L.P.,
or with the investment community or the public at large.
2.4. Place of Employment
Employee's place of employment hereunder shall be at the Company's
Corporate Headquarters presently located in Tulsa, Oklahoma.
ARTICLE III
Compensation and Benefits
3.1. Base Salary
(a) For services rendered by Employee under this Agreement, the Company
shall pay to Employee an annual base salary of $125,000 ("Base Salary"). The
Board shall review the Base Salary at least annually and may adjust the amount
of the Base Salary at any time as the Board may deem appropriate in its sole
discretion; provided, however, that in no event may the Base Salary be decreased
below the above stated amount without the prior written consent of Employee.
(b) The Base Salary shall be payable in accordance with the Company's
payroll practice for its executives as it is earned.
3.2. Vacation
While employed hereunder, Employee shall be entitled to vacation
benefits in accordance with the vacation policy approved by the Board from time
to time for the Company's executives in general. Employee shall not be entitled
to accumulate and carryover unused vacation time from year to year, except to
the extent permitted in accordance with the Company's vacation policy for
executives in general, nor shall Employee be entitled to compensation for unused
vacation time except as provided in Section 4.3(a).
3.3. Business Expenses
The Company shall, in accordance with the rules and policies that it
may establish from time to time for executives, reimburse Employee for business
expenses reasonably incurred in the performance of Employee's duties. Requests
for reimbursement for such expenses must be accompanied by appropriate
documentation.
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Other Benefits
Employee shall be entitled to receive all employee benefits, fringe
benefits and other perquisites that may be offered by the Company to its
executives as a group, including, without limitation, participation by Employee
and, where applicable, Employee's dependents, in the various employee benefit
plans or programs (including, without limitation, pension plans, profit sharing
and 401(k) plans, stock plans, health plans, life insurance and disability
insurance) provided to executives of the Company in general, subject to meeting
the eligibility requirements with respect to each of such benefit plans or
programs. However, nothing in this Section 3.4 shall be deemed to prohibit the
Company from making any changes in any of the plans, programs or benefits
described herein. In addition, Employee shall be entitled to reasonable moving
and relocation expenses if Employee is required to relocate by the Board.
ARTICLE IV
Termination of Employment
4.1. Termination by Employee
Employee may, at any time prior to the Expiration Date, terminate his
employment hereunder for any reason by delivering a Notice of Termination to the
Chief Executive Officer of the Company.
4.2. Termination by the Company
The Company may, at any time prior to the Expiration Date, terminate
Employee's employment hereunder for any reason by delivering a Notice of
Termination to Employee; provided, however, that in no event shall the Company
be entitled to terminate Employee's employment prior to the Expiration Date
unless the Board shall duly adopt, by the affirmative vote of at least a
majority of the entire membership of the Board, a resolution authorizing such
termination and stating that, in the opinion of the Board, sufficient reason
exists therefor.
4.3. Payment of Accrued Base Salary, Vacation Pay, etc.
(a) Promptly upon the termination of Employee's employment for any
reason (including death), the Company shall pay to Employee (or his estate) a
lump sum amount for (i) any unpaid Base Salary earned hereunder prior to the
termination date, (ii) all unused vacation time accrued by Employee as of the
termination date in accordance with Section 3.2, (iii) all unpaid benefits
earned or vested, as the case may be, by Employee as of the termination date
under any and all incentive or deferred compensation plans or programs of the
Company and (iv) any amounts in respect of which Employee has requested, and is
entitled to, reimbursement in accordance with Section 3.3.
(b) A termination of Employee's employment in accordance with this
Agreement shall not alter or impair any of Employee's rights or benefits under
any employee benefit plan or program
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maintained by the Company, in each case except as provided therein or in any
written agreement entered into between the Company and Employee pursuant
thereto.
4.4. Disability Payments
If Employee incurs a Disability, the Company may terminate Employee's
employment hereunder by delivering a Notice of Termination to Employee;
provided, however, in such event the Company shall continue to pay to Employee,
through the remainder of the Term (as determined without regard to its earlier
termination upon Employee's termination due to Disability under this Section 4.4
and without any extension of the Term after such termination date), at such
regularly scheduled times:
(A) the Base Salary in effect on the date of such
termination,
minus
(B) any amount payable to Employee under any disability
plan maintained by the Company for the benefit of
Employee.
4.5. Other Benefits
The following provisions shall apply if Employee terminates his
employment pursuant to Section 4.1 for Good Reason or if the Company terminates
Employee's employment pursuant to Section 4.2 for any reason other than
Misconduct or Disability:
(a) Base Salary Payments. For the remainder of the Term or
until Employee's death, if earlier (the "Continuation Period"), the
Company shall pay to Employee, at the regularly scheduled times, the
Base Salary (as in effect on the date on which the relevant Notice of
Termination is given in accordance with this Agreement). The amount
payable to Employee under this paragraph (a) is in lieu of, and not in
addition to, any severance payment due or to become due to Employee
under any separate agreement or contract between Employee and the
Company or pursuant to any severance payment plan, program or policy of
the Company.
(b) Insurance Benefits, etc. The Company shall at all times
during the Continuation Period cause Employee and Employee's eligible
dependents to be covered by and to participate in, to the fullest
extent allowable under the terms thereof, all group health insurance
plans and programs that may be offered to the executives of the Company
so that Employee will receive, at all times during the Continuation
Period, the same benefits under such plans and programs that Employee
would have been entitled to receive had he remained an executive of the
Company; provided, however, (i) Employee must timely pay the "active"
employee premium, if any, for such continued coverage and (ii) in the
event Employee becomes covered during the Continuation Period by
another employer's group health plan or programs which does not contain
any exclusion or limitation with respect to any
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pre-existing conditions, then the Company's group health plans shall no
longer be liable for any benefits under this paragraph (b).
(c) Release. Notwithstanding anything in this Section 4.5 to
the contrary, as a condition to the receipt of any benefit under this
Section 4.5, Employee must first execute and deliver to the Company a
release in a form prepared by the Company, releasing the Company, its
officers, the Board, employees and agents from any and all claims and
from any and all causes of action of any kind or character that
Employee may have arising out of Employee's employment with the Company
or the termination of such employment, but excluding any claims and
causes of action that Employee may have arising under or based upon
this Agreement.
(d) Parachute Tax. To the extent that any payment made to
Employee hereunder is subject to federal excise tax as a result of the
"parachute" provisions of Section 280G and 4999(a) of the Internal
Revenue Code of 1986, as amended, then the Company shall pay Employee
an additional amount of cash (the "Additional Amount") such that the
net amount received by Employee, after paying all applicable excise
taxes and all other federal and state taxes on such Additional Amount,
shall be equal to the net amount that Employee would have received if
payments made hereunder were not subject to such parachute excise tax.
4.6. Non-exclusivity of Rights
Nothing in this Agreement shall prevent or limit Employee's continuing
or future participation in any plan, program, policy or practice provided by the
Company for which Employee may qualify, nor shall anything herein limit or
otherwise affect such rights as Employee may have under any other contract or
agreement with the Company. Amounts which are vested benefits or which Employee
is otherwise entitled to receive under any plan, policy, practice or program of
or any contract or agreement with the Company at or subsequent to the
Termination Date shall be payable in accordance with such plan, policy, practice
or program or contract or agreement except as explicitly modified by this
Agreement.
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ARTICLE V
Confidential Information and Non-Competition
5.1. Confidential Information
(a) Employee recognizes that the services to be performed by Employee
hereunder are special, unique, and extraordinary and that, by reason of
Employee's employment with the Company, Employee may acquire Confidential
Information concerning the operation of the Company, the use or disclosure of
which would cause the Company substantial loss and damages which could not be
readily calculated and for which no remedy at law would be adequate.
Accordingly, Employee agrees that Employee will not (directly or indirectly) at
any time, whether during or after Employee's employment hereunder, (i) knowingly
use for an improper personal benefit any Confidential Information that Employee
may learn or has learned by reason of Employee's employment with the Company or
(ii) disclose any such Confidential Information to any Person except (A) in the
performance of Employee's obligations to the Company hereunder, (B) as required
by applicable law, (C) in connection with the enforcement of Employee's rights
under this Agreement, (D) in connection with any disagreement, dispute or
litigation (pending or threatened) between Employee and the Company or (E) with
the prior written consent of the Board. As used herein, "Confidential
Information" includes information with respect to the Company's products,
facilities and methods, research and development, trade secrets and other
intellectual property, systems, patents and patent applications, procedures,
manuals, confidential reports, product price lists, customer lists, financial
information, business plans, prospects or opportunities; provided, however, that
such term shall not include any information that (x) is or becomes generally
known or available other than as a result of a disclosure by Employee or (y) is
or becomes known or available to Employee on a nonconfidential basis from a
source (other than the Company) which, to Employee's knowledge, is not
prohibited from disclosing such information to Employee by a legal, contractual,
fiduciary or other obligation to the Company.
(b) Employee confirms that all Confidential Information is the
exclusive property of the Company. All business records, papers and documents
kept or made by Employee while employed by the Company relating to the business
of the Company shall be and remain the property of the Company at all times.
Upon the request of the Company at any time, Employee shall promptly deliver to
the Company, and shall retain no copies of, any written materials, records and
documents made by Employee or coming into his possession while employed by the
Company concerning the business or affairs of the Company other than personal
materials, records and documents (including notes and correspondence) of
Employee not containing proprietary information relating to such business or
affairs. Notwithstanding the foregoing, Employee shall be permitted to retain
copies of, or have access to, all such materials, records and documents relating
to any disagreement, dispute or litigation (pending or threatened) between
Employee and the Company.
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5.2. Non-Competition
(a) While employed hereunder and for one year thereafter or the
Continuation Period, if longer (the "Restricted Period"), Employee shall not,
unless Employee receives the prior written consent of the Board, own an interest
in, manage, operate, join, control, lend money or render financial or other
assistance to or participate in or be connected with, as an officer, employee,
partner, stockholder, consultant or otherwise, any Person which competes with
the Company in the retail marketing of propane gas in the United States;
provided, however, that the foregoing restriction shall apply only to (i) those
areas where the Company was actually doing business on the Termination Date and
(ii) those areas in respect of which the Company actively and diligently
conducted at any time during the 12-month period ended on the Termination Date
an analysis to determine whether or not it would commence doing business in such
areas but, in the case of each such area, the foregoing restriction shall cease
when the Company ceases to actively conduct business (disregarding any temporary
stoppages) in such area or, if applicable, abandons its intent to conduct
business in such area.
(b) Employee has carefully read and considered the provisions of this
Section 5.2 and, having done so, agrees that the restrictions set forth in this
Section 5.2 (including the Restricted Period, scope of activity to be restrained
and the geographical scope) are fair and reasonable and are reasonably required
for the protection of the interests of the Company, its officers, directors,
employees, creditors and shareholders. Employee understands that the
restrictions contained in this Section 5.2 may limit his ability to engage in a
business similar to the Company's business, but acknowledges that he will
receive sufficiently high remuneration and other benefits from the Company
hereunder to justify such restrictions.
(c) During the Restricted Period, Employee shall not, whether for his
own account or for the account of any other Person (excluding the Company),
intentionally (i) solicit, endeavor to entice or induce any employee of the
Company to terminate his employment with the Company or accept employment with
anyone else or (ii) interfere in a similar manner with the business of the
Company.
(d) In the event that any provision of this Section 5.2 relating to the
Restricted Period and/or the areas of restriction shall be declared by a court
of competent jurisdiction to exceed the maximum time period or areas such court
deems reasonable and enforceable, the Restricted Period and/or areas of
restriction deemed reasonable and enforceable by the court shall become and
thereafter be the maximum time period and/or areas.
5.3. Stock Ownership
Nothing in this Agreement shall prohibit Employee from acquiring or
holding any issue of stock or securities of any Person that has any securities
registered under Section 12 of the Exchange Act, listed on a national securities
exchange or quoted on the automated quotation system of the National Association
of Securities Dealers, Inc. so long as (i) Employee is not deemed to be an
"affiliate" of such Person as such term is used in paragraphs (c) and (d) of
Rule 145 under the Securities Act of 1933, as amended, and (ii) Employee and
members of his immediate family do not own or hold more than 3% of any voting
securities of any such Person.
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5.4. Injunctive Relief
Employee acknowledges that a breach of any of the covenants contained
in this Article V may result in material irreparable injury to the Company for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach, any payments remaining under the terms of this Agreement shall cease and
the Company shall be entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction restraining Employee from engaging in
activities prohibited by this Article V or such other relief as may required to
specifically enforce any of the covenants contained in this Article V. Employee
agrees to and hereby does submit to in personam jurisdiction before each and
every such court for that purpose.
ARTICLE VI
Dispute Resolution
(a) In the event a dispute shall arise between the parties as to
whether the provisions of this Agreement have been complied with (a "Dispute"),
the parties agree to resolve such Dispute in accordance with the following
procedure:
(1) A meeting shall be held promptly between the Parties,
attended by (in the case of the Company) one or more individuals with
decision-making authority regarding the Dispute, to attempt in good
faith to negotiate a resolution of the Dispute.
(2) If, within 10 days after such meeting, the parties have
not succeeded in negotiating a resolution of the Dispute, the parties
agree to submit the Dispute to mediation in accordance with the
Commercial Mediation Rules of the American Arbitration Association.
(3) The parties will jointly appoint a mutually acceptable
mediator, seeking assistance in such regard from the American
Arbitration Association if they have been unable to agree upon such
appointment within 10 days following the 10-day period referred to in
clause (2) above.
(4) Upon appointment of the mediator, the parties agree to
participate in good faith in the mediation and negotiations relating
thereto for 15 days.
(5) If the parties are not successful in resolving the Dispute
through mediation within such 15-day period, the parties agree that the
Dispute shall be settled by arbitration in accordance with the
Expedited Procedures of the Commercial Arbitration Rules of the
American Arbitration Association.
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(6) The fees and expenses of the mediator/arbitrators shall be
borne solely by the non-prevailing party or, in the event there is no
clear prevailing party, as the mediator/arbitrators deem appropriate.
(7) Except as provided above, each party shall pay its own
costs and expenses (including, without limitation, attorneys' fees)
relating to any mediation/arbitration proceeding conducted under this
Article VI.
(8) All mediation/arbitration conferences and hearings will be
held in the Tulsa, Oklahoma area.
(b) In the event there is any disputed question of law involved in any
arbitration proceeding, such as the proper legal interpretation of any provision
of this Agreement, the arbitrators shall make separate and distinct findings of
all facts material to the disputed question of law to be decided and, on the
basis of the facts so found, express their conclusion of the question of law.
The facts so found shall be conclusive and binding on the parties, but any legal
conclusion reached by the arbitrators from such facts may be submitted by either
party to a court of law for final determination by initiation of a civil action
in the manner provided by law. Such action, to be valid, must be commenced
within 20 days after receipt of the arbitrators' decision. If no such civil
action is commenced within such 20-day period, the legal conclusion reached by
the arbitrators shall be conclusive and binding on the parties. Any such civil
action shall be submitted, heard and determined solely on the basis of the facts
found by the arbitrators. Neither of the parties shall, or shall be entitled to,
submit any additional or different facts for consideration by the court. In the
event any civil action is commenced under this paragraph (b), the party who
prevails or substantially prevails (as determined by the court) in such civil
action shall be entitled to recover from the other party all costs, expenses and
reasonable attorneys' fees incurred by the prevailing party in connection with
such action and on appeal.
(c) Except as limited by paragraph (b) above, the parties agree that
judgment upon the award rendered by the arbitrators may be entered in any court
of competent jurisdiction. In the event legal proceedings are commenced to
enforce the rights awarded in an arbitration proceeding, the party who prevails
or substantially prevails in such legal proceeding shall be entitled to recover
from the other party all costs, expenses and reasonable attorneys' fees incurred
by the prevailing party in connection with such legal proceeding and on appeal.
(d) Except as provided above, (i) no legal action may be brought by
either party with respect to any Dispute and (ii) all Disputes shall be
determined only in accordance with the procedures set forth above.
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ARTICLE VII
Miscellaneous
7.1. No Mitigation or Offset
The provisions of this Agreement are not intended to, nor shall they be
construed to, require that Employee mitigate the amount of any payment provided
for in this Agreement by seeking or accepting other employment, nor shall the
amount of any payment provided for in this Agreement be reduced by any
compensation earned by Employee as the result of employment by another employer
or otherwise. Without limitation of the foregoing, the Company's obligations to
make the payments to Employee required under this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set off (other
than as provided in Section 4.5(a)), counterclaim, recoupment, defense or other
claim, right or action that the Company may have against Employee.
7.2. Assignability
The obligations of Employee hereunder are personal and may not be
assigned or delegated by Employee or transferred in any manner whatsoever, nor
are such obligations subject to involuntary alienation, assignment or transfer.
The Company shall have the right to assign this Agreement and to delegate all
rights, duties and obligations hereunder as provided in Section 7.5.
7.3. Notices
All notices and all other communications provided for in the Agreement
shall be in writing and addressed (i) if to the Company, at its principal office
address or such other address as it may have designated by written notice to
Employee for purposes hereof, directed to the attention of the Chief Executive
Officer with a copy to the Secretary of the Company and (ii) if to Employee, at
his residence address on the records of the Company or to such other address as
he may have designated to the Company in writing for purposes hereof. Each such
notice or other communication shall be deemed to have been duly given when
delivered or mailed by United States registered mail, return receipt requested,
postage prepaid, except that any notice of change of address shall be effective
only upon receipt.
7.4. Severability
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
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7.5. Successors; Binding Agreement
(a) The Company will require any successor (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
reasonable acceptable to Employee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession 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 herein, the term
"Company" shall include any successor to its business and/or assets as aforesaid
which executes and delivers the Agreement provided for in this Section 7.5 or
which otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of Employee hereunder shall inure to
the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributes,
devisees and legatees. If Employee should die while any amounts are due him
hereunder, all such amounts shall be paid in accordance with the terms of this
Agreement to Employee's devisee, legatee, or other designee or, if there be no
such designee, to Employee's estate.
7.6. Tax Withholdings
The Company shall withhold from all payments hereunder all applicable
taxes (federal, state or other) which it is required to withhold therefrom
unless Employee has otherwise paid (or made other arrangements satisfactory) to
the Company the amount of such taxes.
7.7 Amendments and Waivers
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by Employee and such member of the Board as may be specifically authorized by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or in compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
7.8. Entire Agreement; Termination of Any Other Agreements
This Agreement is an integration of the parties' agreement and no
agreement or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. This Agreement hereby expressly
terminates, rescinds and replaces any prior agreement (written or oral) between
the parties relating to the subject matter hereof.
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7.9. Governing Law
THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF OKLAHOMA WITHOUT REGARD
TO ITS CONFLICT OF LAWS PROVISION.
7.10 Employment with Affiliates
For purposes of this Agreement, employment with any subsidiary of the
Company, Heritage Propane Partners, L.P., Heritage Operating L.P. or with any of
their respective subsidiaries shall be deemed to be employment with the Company.
7.11. Counterparts
This Agreement may be executed in or more counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
HERITAGE HOLDINGS, INC.
By: /s/ X. X. Xxxxxxxxxxxx
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Name: X. X. Xxxxxxxxxxxx
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Title: Chief Executive Officer
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EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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