EXHIBIT 10.27
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of September 30, 2001 between
STAR GAS LLC, a limited liability company organized under the laws of the State
of Delaware and doing business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xx. 00000
(the"Company"), and XXXX X. XXXXX, an individual residing at 0 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000 ("Executive").
W I T N E S S E T H :
WHEREAS, the Company is the general partner of Star Gas
Partners, L.P. ("Partnership"), which through its direct and indirect wholly
owned subsidiaries is the largest retail home heating oil supplier and the
eighth largest retail propane supplier in the United States;
WHEREAS, the Executive has served variously as President and
Chief Executive Officer of the Company and its subsidiaries for more than 20
years;
WHEREAS, the Company wishes to continue to employ Executive
as the Chief Executive Officer of the Company and its subsidiaries pursuant to
the terms of this Agreement and Executive wishes to continue in such
employment;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Employment; Position and Responsibilities. During the
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"Term" of this Agreement (as defined in Section 4(a) hereof), the Company
agrees to continue to employ Executive, and the Executive agrees to continue
to serve, as Chief Executive Officer of the Company and its subsidiaries of
the Company subject to the general supervision and pursuant to the orders,
advice and direction of the Board of Directors of the Company. In such
capacity, Executive shall have authority and responsibility to administer
and manage the business of the Company and the subsidiaries of the Company.
Executive will be located at the Stamford, CT office of the Company or at such
other location in the greater New York area as the Board may designate.
2. Obligations of Executive. During the Term of this
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Agreement, Executive agrees that he will devote substantially all of his time,
attention and energies to the business of the Company. Executive shall at all
times be subject to, observe and carry out such reasonable rules, regulations,
policies, directions and restrictions as the Board shall from time to time
establish. Notwithstanding the foregoing, during the term of this Agreement, it
shall not be a violation of this Agreement for the Executive to (a) serve on
civic or charitable boards or committees; (b) serve as a non-employee member of
a board of directors of a business entity which is not competitive with the
Company and (c) attend to personal business, so long as such activities do not
interfere with the performance of the Executive's responsibilities as a senior
executive of the Company in accordance with this Agreement.
3. Compensation.
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3.1 Cash Compensation; Targeted Bonus. Executive's base
salary during the Term of this Agreement shall be at the rate of Six Hundred
Thousand Dollars ($600,000) per annum for each fiscal year ended September 30
through September 30, 2002 which shall increase at the rate of Twenty-Five
Thousand Dollars ($25,000) per annum in each succeeding fiscal year during the
Term. Executive shall be entitled to receive a bonus targeted at 80% of his
annual base salary ("Targeted Bonus"). The Compensation Committee of the Board
of Directors of the Company (the "Committee") will review Executive's
performance on an annual basis (normally on or about October 15) to determine
what percentage of this Targeted Bonus he shall actually receive, taking into
account Executive's individual job performance and other factors deemed
appropriate by the Committee. The annual base salary shall be paid over the year
in a manner consistent with the Company's payment of executive salaries. The
bonus shall be paid to Executive each January following the end of each fiscal
year.
3.2 Benefits. Executive shall be entitled to paid annual
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vacation, personal leave and holidays during each calendar year during
Executive's employment in accordance with the policies of the Company. Executive
will participate in health, welfare (including disability) and defined benefit
and defined contribution retirement plans, including but not limited to the
pension plan and 401(k) savings plan, that are maintained by the Company on the
same basis
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as such benefits are generally available to senior executives of the
Company and subject to the right of the Company to change, reduce or terminate
such plans or benefits in respect of employees generally. In addition to
insurance programs existing on the date of this Agreement, the Company shall
purchase and maintain in effect a $2,000,000 term life insurance policy on the
life of the Executive payable to his named beneficiary.
3.3 Reimbursement. Executive will be reimbursed for
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reasonable business and travel expenses and be provided with automobile
transportation in accordance with the normal policies of the Company including
dues, fees and expenses associated with membership in professional business and
civic organizations in which Executive's participation is in the interest of the
Company. The benefits and payments described in this Section 3.3 shall not
include an income tax gross-up, and Executive will be responsible for any tax
on their value.
3.4 Equity Incentives.
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(a) The Executive will earn and Company will
issue to the Executive, or if the Company has established a Rabbi Trust to
hold equity incentives earned by the Executive, then to such Rabbi Trust, 3,000
Common Units of the Partnership (up to a maximum of 75,000 Common Units for any
fiscal year) for each $.01 that the Company's annual Distributable Cash Flow
("DCF") exceeds the minimum DCF per limited partner unit ("LP Unit") LP Unit
as set forth below.
Maximum Units
Fiscal Year Minimum DCF Per Fiscal Year
----------- Per LP Unit ---------------
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2002 $2.44 75,000 units
2003 2.52 75,000 units
2004 2.66 75,000 units
2005 2.81 75,000 units
2006 3.00 75,000 units
For periods beyond the initial 5 year term ending in fiscal
year 2006, the Minimum DCF Per LP Unit will be agreed upon by the Executive and
the Compensation
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Committee consistent with the above, such that Executive will be able to
earn a maximum of 75,000 units per fiscal year.
Common Units earned and issued pursuant to Section 3.4(a) shall
vest at the rate of 25% per annum on each October 1 following the date of
issuance; provided, however, that all earned and issued Common Units shall
become immediately vested upon (i) termination of the Executive's employment
by the Company without Cause or termination of the Executive's employment by
the Executive for Good Reason (as those terms are defined in Section 4.3), (ii)
termination of the Executive's employment following a Change in Control under
circumstances such that Section 4.5 governs payments to the Executive or (iii)
upon the death or Disability of the Executive (as defined in Section 3.6).
For purposes of this Agreement, the term
Distributable Cash Flow shall be determined by the Company's Board of
Directors, adjusted to eliminate the impact of acquisitions made after December
31 in the year being calculated.
(b) The Company will issue to the Executive 100,000
Common Units of the Partnership at such time as the average daily last sales
price of the Common Units on the exchange on which they are traded is at least
$40 per unit during any 45 day period. These Common Units will be fully vested
on issuance.
(c) The obligations of the Company hereinabove
contained in this Section 3.4 shall be subject to the requirement that if at
any time the Board of Directors of the Company shall determine that the
registration, listing or qualification of the Common Units covered hereby upon
any securities exchange or under any federal or state law, or the consent or
approval of any governmental regulatory body or other person or persons is
necessary or desirable as a condition of, or in connection with, the issuance
of such Common Units, such Common Units may not be issued unless and until such
registration listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board of
Directors. The Company may require that the Executive shall make such
representations and agreements and furnish such information as the Company
deems appropriate to assure compliance with the foregoing or any other
applicable legal requirements. If the
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Partnership is for any reason prohibited from issuing any Common Units to the
Executive, including requirements of the New York Stock Exchange for unitholder
approval, the Partnership shall use commercially reasonable efforts to remove
such prohibition. If such prohibition is not removed within a period of 120 days
from the date the Common Units were to be issued but for such prohibition, the
Partnership shall either purchase the necessary Common Units or make a cash
payment to the Executive or Rabbi Trust equal in value to the Common Units not
so issued based upon the average daily last sales price of the Common Units on
the exchange on which they are traded during the preceding 45 day period.
3.5 Supplemental Retirement Benefit. The Executive may voluntarily
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retire at any time after he has attained age 65 ("Retirement"). If the
Executive's employment is terminated by reason of his Retirement, the
Executive shall be paid a monthly retirement benefit (the "SERP Benefits")
for life in an amount equal to, when added to all other retirement benefits
paid by the Company to the Executive, 50% of the average annual base and bonus
paid to the Executive during the most recent three full years of employment
divided by 12. The SERP Benefits shall be in addition to any other benefits
provided pursuant to plans, policiesand programs maintained by the Company.
3.6 Disability/Death. Upon the death or Disability of the
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Executive, the Executive or in the case of his death, his named beneficiary,
or, if none, his estate, shall receive a monthly payment beginning on his death
or Disability Termination Date and continuing until age 65 (or in the case of
his death until he would have reached age 65) equal to 60% of his then annual
base salary plus the prior years bonus divided by 12; provided, however, that
each monthly payment shall be reduced by the monthly amount paid to the
Executive under other plans maintained by the Company. The terms "Disabled" or
"Disability" shall mean the Executive's physical or mental incapacity which
renders the Executive incapable, even with a reasonable accommodation by the
Company, of performing the essential functions of the duties required of
Executive by this Agreement for one hundred twenty (120) or more consecutive
days ("Disability Period"); the term "Disability Termination Date" shall
mean the date as of which the Executive's employment with the Company is
terminated, either by the Executive or by the Company, following the Disability
Period.
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4. Termination.
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4.1 Term. The Term of this Agreement (the "Term") shall
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commence as of the date hereof and shall continue for a period of five (5)
years, provided, however, that this Agreement automatically shall be renewed
on each October 1 for successive periods of one year each unless cancelled or
terminated by either the Company or the Executive on 90 days advance notice.
Notwithstanding the foregoing, this Agreement may be terminated (i) effective
immediately by the Company for Cause or by Executive for Good Reason as herein
provided (ii) by the Executive or the Company for Disability pursuant to
Section 3.6 in which event the date on which notice of termination is given
shall be the Termination Date and (iii) shall be terminated upon the death of
the Executive.
4.2 (a) Termination by Executive without Good Reason or by
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Company for Cause. If the Executive terminates his employment under this
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Agreement (other than upon voluntary retirement in accordance with Section 3.5
or upon death or Disability in accordance with Section 3.6) without Good Reason
as defined in Section 4.2(c) hereof, or if the Company terminates Executive's
employment for Cause, as defined in Section 4.2(b) hereof, the Company shall
have no financial obligation to Executive other than to pay Executive's base
salary through the Termination Date and Executive's participation in employee
benefit plans of the Company shall cease as of such Termination Date. In
addition, all unvested Common Units issued pursuant to Section 3.4 shall be
forfeited. The Company shall give Executive written notice of a termination for
Cause and the termination of the Executive's employment shall be effective on
the date that such notice is given.
(b) For purposes of this Agreement, "Cause" shall mean the
commission by the Executive of any dishonest, illegal or wrongful act involving
fraud, misrepresentation or moral turpitude; any material breach of this
Agreement by the Executive; failure of the Executive in any material respect
to follow directives or orders of the Board of Directors of the Company;
continuing grossly inadequate performance of the Executive's duties; other
significant personal or professional misconduct of Executive, which, in the
reasonable and good faith judgment of the Board of Directors of the Company,
injures or tends to injure the
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reputation of the Company or otherwise adversely affects the interests of the
Company; or intentional disloyalty; provided, however, in each such instance,
tothe extent the Company reasonably and in good faith determines that such
conductis correctable, that the Executive shall be given at least ten (10)
days'advance notice to correct same or if such correction may not reasonably be
completed within such ten (10) days, then the Executive shall be given
sufficient notice to correct same.
(c) For purposes of this Agreement, "Good Reason" shall mean,
provided the Executive has not given Cause for termination or become entitled
to receive disability benefits as provided in Section 3.6(i): (i) any material
breach of this Agreement by the Company; (ii) the assignment to the Executive
of any duties materially inconsistent in any material respect with this
position, authority, duties and responsibilities, compensation or benefits
without the prior consent of the Executive, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly of notice thereof given by the
Executive; (iii) the Executive is required to establish a primary work location
outside of the consolidated metropolitan statistical area that includes
New York, as defined by the U.S. Bureau of the Census (or any comparable
successor area). In respect of events described in the preceding sentence the
Executive shall give the Company written notice and 30 days to cure the
default, failure or refusal. If such default, failure or refusal is not cured
within such 30-day cure period, the Executive may give written notice to the
Company of a termination by Executive for Good Reason.
4.3 Termination by Company without Cause or by Executive with
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Good Reason. Subject to Section 4.4 hereof, if the Company terminates the
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employmentof the Executive without Cause or Executive terminates the
Executive's employment with Good Reason, in either event prior to a Change
in Control, then, the Company shall pay compensation, issue equity incentives
and provide benefits to the Executive as follows:
(i) Within 30 days after the Termination Date the Company
will pay the Executive a lump sum equal to the sum of (x) the Executive's
annual base salary through the Termination Date, to the extent not theretofore
paid, plus a prorated portion of that year's
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Target Bonus through the Termination Date plus (y) an amount equal to the
Executive's anticipated annual base salaries plus Targeted Bonuses pursuant
to Section 3.1 for the three years following such Termination Date.
(ii) The Company shall continue to provide to Executive
the group insurance benefits to the Executive for a period of 24 months after
the Termination Date to the extent that such benefits are generally available
to senior executives of the Company. Such benefits shall terminate on the date
prior to the expiration of such 24-month period on which the Executive shall
become entitled to receive benefits from another employer. The Executive shall
notify the Company in writing no later than ten (10) days after the date on
which the Executive shall be covered by the benefits of another employer.
The Company shall be under no obligation to continue to make any such benefit
or benefit plan generally available toemployees.
(iii) All SERP Benefits payable pursuant to Section 3.5
shall be accelerated in a lump sum payment. This payment shall be calculated
based upon the average of the Executive's most recent past three years' annual
base salary and bonus and assuming retirement at age 65, death at age 78 and
an 8% per annum present value discount rate.
4.4 Disability or Death. If the Executive's employment is
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terminated due to Disability, the Company shall have no financial obligation
to the Executive other than as set forth in Section 3.6. If the Executive's
employment is terminated due to his death, the Company shall have no financial
obligation to the Executive other than to pay any death benefits to which his
legal representative or beneficiaries may be entitled under any employee
benefit plan maintained by the Company and the benefits set forth in
Section 3.6.
4.5 Change in Control. If (A) the Company terminates
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the employment of the Executive without Cause prior to a Change in Control,
as hereinafter defined, if such termination of employment is a condition of the
agreement pursuant to which the Change in Control occurs, or if the Company
terminates the employment of the Executive without Cause within two years
following a Change in Control, or if the Executive terminates the Executive's
employment with Good Reason within two years following a Change in Control or
(B) the Executive voluntarily terminates his employment for any reason during
the period of 30 days
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following the first anniversary of a Change in Control, then, the payments
underSection 4.3 hereof shall not apply but rather the Company shall pay
compensation, issue equity incentives and provide benefits to Executive as
follows:
(i) Within 30 days after the Termination Date the Company
will pay Executive a lump sum equal to the sum of (x) Executive's annual base
salary through the Termination Date, to the extent not theretofore paid, plus
(y) an amount equal to Executive's anticipated annual base salaries plus
Targeted Bonuses and equity incentives pursuant to Section 3 for the three
years following the Termination Date.
(ii) The Company shall continue to provide to Executive the
group insurance benefits to Executive for a period of 24 months after the
Termination Date to the extent that such benefits are generally available to
senior executives of the Company. Such benefits shall terminate on the date
prior to the expiration of such 24-month period on which Executive shall become
entitled to receive benefits from another employer. Executive shall notify the
Company in writing no later than ten (10) days after the date on which
Executiveshall be covered by the benefits of another employer. The Company
shall be under no obligation to continue to make any such benefit or benefit
plan generally available to employees.
(iii) The Executive shall be deemed to have earned 325,000
Senior Subordinated Units and the value of such equity incentives shall be
immediately paid to the Executive in cash. The value of each Senior
Subordinated Unit shall be deemed to be the average daily last sales price of
the Senior Subordinated Units on the exchange on which they are traded for the
60 trading days prior to the date of determination.
(iv) All SERP Benefits payable pursuant to Section 3.5
shall be accelerated in a lump sum payment. This payment shall be calculated
based upon the average of Executive's past three years' annual base salary and
bonus and assuming retirement at age 65, death at age 78 and an 8% per annum
present value discount rate.
For the purposes of this Agreement, a "Change of Control" shall
mean the occurrence of any one or more of the following:
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(a) the removal of the Company as the general partner of the
Partnership by a vote of the unit holders of the Partnership under
circumstanceswhere Cause (as defined in the partnership agreement of the
Partnership) doesnot exist, and any successor general partner of the
Partnership is not an Affiliate (as hereinafter defined) of the Company or
controlled by the Executiveand/or any of his Affiliates;
(b) the Partnership shall sell, lease, exchange or transfer
(in one transaction or a series of related transactions) substantially all of
its assets, except to an entity constituting an Affiliate of the Company or
controlled by the Executive and/or his Affiliates;
(c) The Partnership shall consolidate or merge with any
other entity as a result of which the continuing or surviving entity is not
controlled by the Company or any Affiliate thereof, or by the Executive and/or
his Affiliates;
(d) The sale by Star Gas LLC of its general partnership
interests to any person or entity not constituting an Affiliate of the Company
or controlled by the Executive and/or his Affiliates;
and where: (x) "Affiliate" shall mean any person or entity
controlling, controlled by or under common control with the subject referenced;
and (y) the term "control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies
of the subject referenced, whether through the ownership of voting securities
or bycontract or otherwise.
4.6 Gross up Payment. In the event it shall be determined by the
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Company's public accounting firm that any payment or distribution (other than
payments pursuant to Section 3.3 hereof) by the Company or its affiliated
companies to or for the benefit of Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any adjustment required under this
Section 4.6 (a "Payment")), would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended or any amendment,
replacement or similar provision thereto, or any interest or penalties are
incurred by Executive (other than interest or penalties incurred as a result of
Executive's failure promptly to file appropriate tax returns or amended tax
returns after notification of such determination by the Company's public
accounting
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firm) with respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the "Excise
Tax"), then Executive shall be entitled to receive within 30 days following
such determination or such occurrence, as the case may be, an additional
payment (a"Gross Up Payment") in an amount such that after payment by
Executive of the Excise Tax imposed upon the Gross-Up Payment, Executive will
retain an amount equal to the amount he would have retained had no Exercise
Tax been imposed.
4.7 The payments to Executive pursuant to Section 4 hereof
shall be paid in lieu of any other amount of severance relating to salary or
bonus continuation to be received by Executive upon termination of employment
of Executive under any severance plan, policy or arrangement of the Company.
5. Confidentiality. During and after the Term of this Agreement and
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for a period of 36 months thereafter, or, if sooner, the date on
which information becomes generally known in the industry, Executive covenants
and agrees that, other than as required by law, Executive will not disclose to
anyone without the Company's written consent, any confidential materials,
documents, records orother information of any type whatsoever concerning or
relating to the business and affairs of the Company that Executive may have
acquired in the course of Executive's employment hereunder, including but not
limited to: (i) lists of customers of the Company; and (ii) information
relating to methods of doing business (including information concerning
operations, technology and systems) in use or contemplated use by the Company
and not generally known in the industries in which the Company competes or
actually or demonstrably anticipates competing. Notwithstanding the foregoing,
the restrictions contained in this Section shall (i) not, during the Term,
apply to any disclosures which the Executive believes in good faith are in
the best interests of the Company and (ii) lapse if at any time after the Term,
the Company fails to make any payment or provide any benefit due to the
Executive, and should such failure continue for a period of 30 days after
notice specifying such failure.
6. Nonsolicitation.
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6.1 Executive acknowledges that his services and value to
the Company are unique, special and extraordinary. Executive covenants and
agrees that during the Term of this Agreement, and for a period of 36 months
after the Termination Date, Executive will not (i) personally solicit, or
encourage others to solicit, employees of the Company to leave the employ of
the Company for the purpose of engaging in any employment competitive with the
Company or otherwise; or (ii) become directly or indirectly involved in the
retail home heating oil or retail propane distribution business in any market
in which the Company and its subsidiaries are operating in on the Termination
Date. Notwithstanding the foregoing, the provisions of Section 6 shall not be
binding upon the Executive, if (i) the payment to the Executive pursuant to
Section 4.5(iii) would be $4,875,000 or less and (ii) the Executive waives
the right to receive such payment.
6.2 It is the desire and intent of the parties that the
provisions of this Section 6 hereof shall be enforced to the fullest
extent permissible under the laws and public policies of
the State of New York. If any particular provisions or portions of this Section
hereof shall be adjudicated to be invalid or unenforceable, Section 6 shall be
deemed amended to delete therefrom such provision or portion adjudicated to be
invalid or unenforceable, such amendment to apply only in the particular case
and jurisdiction in which such adjudication is made.
7. Governing Law. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State of New York,
not including its conflict of laws principles. If, under such law, any portion
of this Agreement is at any time deemed to be in conflict with any applicable
statute, rule, judicial interpretation binding on the parties, regulation or
ordinance, such portion shall be deemed to be modified or altered to conform
thereto or, if that is not possible, to be omitted from this Agreement, and
the invalidity of any such portion shall not affect the force, effect or
validity of the remaining portions hereof.
8. Notices. All notices required to be given under this
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Agreement shall be in writing and shall be deemed effective when received
and shall be delivered in person; or by facsimile transmission
(with confirmation of receipt); or by mail, postage prepaid, for delivery as
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registered or certified mail; or by overnight carrier service, addressed, (a)
in the case of Executive, to Executive at Executive's then current business
address with the Company, with a copy to Executive's residential address as
reflected above (or such other residential address as Executive may notify the
Company from time to time) or, (b) in the case of the Company, to the Company's
Vice President - Human Resources or to such other person as the Company may
designate in writing to Executive.
9. Resolution of Disputes.
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(a) Executive recognizes that irreparable injury
would be caused to the Company, not adequately compensable by money damages,
by Executive's violation of any provision of Section 5 or 6 of this Agreement.
Executive further agrees that in the event of any such violation or threatened
violation the Company or any of its direct or indirect subsidiaries or
affiliates, in addition to such other rights and remedies as may exist in its
or their favor, may apply to a court of law or equity to enforce the specific
performance of such provisions and, without notice to Executive, may apply for
an injunction or temporary restraining order against any act which would
violate any such provisions. The state and federal courts of the State of
New York shall have jurisdiction of any dispute arising out of or relating to
this Agreement and each party waives any objection that it may have to laying
the venue of any suit, action or proceeding in any such court.
(b) The covenants of Executive contained in
Sections 5 and 6 of this Agreement shall be construed as independent of
all other provisions contained in this Agreement and shall survive the Term
of this Agreement.
(c) If following a change of control the
Executive recovers any judgment against the Company for failure to make
payment of any amounts or to provide equity incentives due to Executive
pursuant to this Agreement, the Company shall pay to Executive as additional
compensation an amount equal to 20% of the amount of the judgment and the
Company consents that the amount of such additional compensation shall be added
to the judgment.
10. Miscellaneous.
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10.1 Executive represents and warrants to the
Company that Executive has no contracts or agreements of any nature that
Executive has entered into with any other person, firm or corporation that
contain any restraints on Executive's present or future services.
10.2 Executive and the Company each acknowledges
and agrees that this Agreement constitutes the entire understanding between
the Company and Executive relating to the employment of Executive by the
Company and any direct or indirect subsidiary or affiliate of the Company,
and supersedes all prior written and oral agreements and understandings with
respect to the subject matter of this Agreement.
10.3 This Agreement may be amended only by a
subsequent written agreement signed by Executive and the Company.
10.4 No waiver by either party of or failure to
assert any provision or condition of this Agreement to be performed or right
to be exercised shall be deemed a waiver of such or similar or dissimilar
provisions and conditions or rights at the same time or any prior or
subsequent time.
10.5 This Agreement and all rights and
obligations of Executive are personal to Executive and shall not be assignable
and any purported assignment in violation hereof shall not be valid or binding
on the Company. No rights or obligations of the Company under this Agreement
may be assigned or transferred by the Company, except that such rights or
obligations may be assigned or transferred pursuant to a merger or
consolidation in which the Company is not the continuing entity, or the sale or
liquidation of all or substantially all of the business or assets of the
Company, provided that the assignee or transferee is the successor to all or
substantially all of the business or assets of the Company and such assignee or
transferee assumes all of the liabilities, obligations and duties of the
Company, as contained in this Agreement, either contractually or as a matter of
law. The Company will require any such successor 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.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business or assets as aforesaid, which
executes and delivers the
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agreement provided for in this Section 10.5 or which otherwise becomes bound by
all the terms and provisions of this Agreement or by operation of law.
10.6 "Undisputed Late Obligations" shall bear
interest beginning on the Due Date until paid in full at an annual rate of
one percent (1.0%) plus the prime rate as declared from time to time by The
Chase Manhattan Bank. For purposes hereof, "Undisputed Late Obligations"
shall mean any obligation which remains unpaid 5 days after written notice
thereof is delivered to the other party in accordance with Section 11
(the "Due Date") for money under this Agreement owing from one party to
another, which obligation (i) is not subject to any bona fide dispute or (ii)
has been adjudicated by an arbitration pane l or court of competent
jurisdiction to be due and payable.
10.7 This Agreement may be signed in counterparts.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the year and day first above written.
STAR GAS LLC
By:
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Xxxx Xxxxxxxxx
Chair of the Compensation Committee
EXECUTIVE:
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Xxxx X. Xxxxx
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