FORM OF CONFIDENTIALITY AND POST-EMPLOYMIENT ACTIVITIES AGREEMENT
A. I, _______________, the undersigned employee, have been hired/promoted
into the newly created position of ______________________________ of AmeriGas
Propane, Inc., a Pennsylvania corporation, which is the general partner of
AmeriGas Partners, L.P. As such, I will be responsible for ___________________
of AmeriGas Partners, L.P., and its subsidiaries, partnerships and affiliates
(collectively "AmeriGas") throughout the United States. During the course of my
employment, I understand that AmeriGas will put me in a position of trust and
confidence by placing me in charge of _____________________ throughout the
United States and by disclosing to me, as well as having me develop Confidential
Information about its business and
B. I am also a member of AmeriGas's Senior Management Team. As a member of
AmeriGas's Senior Management Team, I routinely participate in important
strategic reporting and planning meetings where highly Confidential Information
and plans are disclosed, discussed and developed by the senior officers and
managers of AmeriGas.
C. Accordingly, in consideration for my employment in this
__________________________ position and the compensation and employee benefits
that I will receive for serving in such a position, I agree to the terms of this
Confidentiality and Post-Employment Activities Agreement as follows:
1. Recitals.
The recitals contained in the lettered paragraphs above are hereby
incorporated and made a part of this Agreement.
2. Definitions.
a. The term "Confidential Information" includes, but is not
limited to, information, whether in tangible form or otherwise, concerning
business and marketing plans; past, present and prospective customer identities,
lists, credit information and gas usage patterns; pricing and marketing
policies and practices; financial information; acquisition and strategic plans;
and other operating policies and practices.
b. The term "Territory" refers to each of the 00 xxxxxx xx xxx
Xxxxxx Xxxxxx and such U.S. territories and foreign nations in which Americas
distributes propane or otherwise sells goods or services during the one year
period preceding the termination of my employment.
3. Confidential Information and AmeriGas Property.
a. I will protect the Confidential Information of AmeriGas and
its predecessors and affiliates from disclosure and will not divulge it during
or after my employment to any other person or entity not associated with
AmeriGas.
b. All reports, manuals, memoranda, computer disks and tapes and
other materials made available to me by AmeriGas during the performance of my
duties are the property of AmeriGas, and I will use all such property
exclusively for AmeriGas's benefit and will return it, including copies, to
AmeriGas at the termination of my employment.
4. Prohibited Post-Employment Activities.
For a period of two years after the termination of my employment with
AmeriGas for any reason:
a. I will not directly or indirectly solicit or service the
business of any AmeriGas customer within my Territory.
b. Except as provided in paragraphs 4(c) and 4(d) below, I will
not directly or indirectly: (i) own or operate; (ii) acquire an equity or
partnership interest or a controlling interest of any other kind in; (iii)
accept employment from; or (iv) serve as a director, officer, partner,
consultant, or advisor of or to, any business that distributes propane in my
Territory or that sells goods or provides services that compete with goods sold
or services provided by AmeriGas in my Territory as of the date of the
termination of my employment without first obtaining the written consent of the
President of
2
AmeriGas Propane, Inc. Notwithstanding anything to the contrary herein, in the
event that my employment is terminated by AmeriGas based upon my failure to meet
the performance or financial objectives established for my position and
AmeriGas, in its sole discretion, determines that such failure on my part was
not deliberate, the term of enforcement for this Noncompete Provision shall be
calculated in the following manner: for every twenty (20) days of severance
payment that I receive, the term of enforcement for this Noncompete Provision
shall equal one (1) calendar month; provided, however, that in no event will the
term of enforcement for the Noncompete Provision be less than six (6) months. It
is further understood and agreed that the Noncompete Provision will not prevent
me from accepting employment with a business that distributes alternative energy
(i.e., electricity, natural gas or fuel oil) or that sells goods or provides
services in the alternative energy market.
c. Nothing in paragraph 4(b) above shall prohibit me from
passively investing in a publicly held business that competes with AmeriGas
provided my investment is less than 1 % of the outstanding stock or market value
of the business and I do not otherwise violate paragraph 3 of this Agreement.
d. Nothing in paragraph 4(b) above shall prohibit me from
accepting employment with a business that competes with AmeriGas in my Territory
provided that I can demonstrate through clear and convincing evidence that: (i)
my compensation is not based either directly or indirectly on the business
operations, sales or financial performance of the competing business within my
Territory, (ii) my responsibilities do not include the performance or oversight
of any sales or business activities of the competing business within my
Territory, and (iii) my duties with the competing business will not otherwise
result in a breach of paragraph 3 of this Agreement.
e. I will not, nor will I induce any other person or entity to
employ, or offer employment, in a competing business, to any employee of
AmeriGas over whom I had direct or
3
indirect supervisory responsibility or with whom I worked, or who was employed
by AmeriGas within my Territory during the two-year period prior to the
termination of my employment.
Furthermore, I shall not induce or attempt to induce any employee to terminate
his or her employment with AmeriGas.
5. Remedies.
a. I understand that if I violate this Agreement, AmeriGas will
suffer irreparable harm; therefore, in addition to any other remedies available
to it, AmeriGas will be entitled to seek and obtain injunctive or equitable
relief, including orders prohibiting violations of this Agreement.
b. In any legal proceeding in which AmeriGas obtains injunctive
or equitable relief or damages against me arising out of my violation of this
Agreement, AmeriGas shall be entitled to recover from me its reasonable
attorneys' fees and costs.
c. The failure by AmeriGas to insist on my compliance with this
Agreement or to enforce it in any particular circumstance will not constitute a
waiver by AmeriGas of its rights to seek relief for any other or subsequent
breach of this Agreement.
6. Additional Provisions.
a. This Agreement shall continue to be in full force and effect
without reexecution in the event that: (i) I am employed by AmeriGas in another
position or transferred to another territory; (ii) I take a leave of absence; or
(iii) there are periods between active employment during which I do not perform
services for AmeriGas.
b. This Agreement was, and shall be deemed to have been, made in
the State of Pennsylvania. It shall be governed by the laws of the State of
Pennsylvania without regard to that State's choice of law provisions.
4
c. The Court of Common Pleas of Xxxxxxxxxx County and the Federal
District Court for the Eastern District of Pennsylvania (hereafter the
designated courts) shall have exclusive jurisdiction over disputes arising out
of or relating to this Agreement except:
(i) if I or AmeriGas desire to add a necessary party to the action over whom the
designated courts would not have personal jurisdiction; or (ii) it is necessary
for me or AmeriGas to file an action or motion in another jurisdiction in order
to enforce any judgment or relief obtained from the designated courts.
Accordingly, both AmeriGas and I agree to submit to the jurisdiction and venue
of the designated courts arid, subject to the above stated exceptions, each of
us agrees to waive any right to contest personal jurisdiction and venue before
such courts or to seek to transfer or otherwise object to or challenge the
forums designated herein.
d. I will disclose the existence of this Agreement to all of my
prospective and actual employers. I authorize AmeriGas to disclose the existence
of this Agreement and to provide a copy of this Agreement to any prospective and
actual employer.
e. I have read and understood this Agreement, believe it to be
reasonable, and am signing it voluntarily. I acknowledge that my obligations
under this Agreement will not impose an unreasonable economic hardship on me. I
further recognize that this Agreement may be enforced against me by a court of
law or equity. I also understand that the execution of this Agreement is a
requirement of my employment with AmeriGas and that AmeriGas will expect me to
adhere strictly to the terms of this Agreement.
f. The provisions of this Confidentiality and Post-Employment
Activities Agreement constitute the entire Agreement between myself and AmeriGas
regarding AmeriGas's Confidential Information and my post-employment
obligations, which Agreement cannot be varied except by a writing signed by me
and the President of AmeriGas Propane, Inc. Notwithstanding the foregoing, the
provisions of this Agreement are in addition to, and not a limitation or
substitution of,
5
nor do they supersede the provisions of the "Agreement and Understanding"
booklet or AmeriGas's Human Resources Policies.
g. I hereby consent to AmeriGas's assignment of this Agreement to
any entity that acquires through purchase, merger or otherwise, the assets or
stock of, or any interest in, AmeriGas Propane or AmeriGas Partners, L.P., and
its subsidiaries, partnerships and affiliates.
h. If any provision of this Agreement shall be determined to be
invalid or unenforceable to any extent, the parties to this Agreement authorize
the court to modify it to the extent necessary to make the provision
enforceable. If any provision of this Agreement shall be determined to be
invalid or unenforceable to any extent, such invalidity shall not impair the
operation of or affect the remaining provisions hereof.
Dated this ____ day of ____________ 1996.
Witness Name
AmeriGas Propane, Inc., in its
own right and as general
partner of AmeriGas Partners,
L.P. and their respective
subsidiaries, partnerships and
affiliates
By:
____________________________ _______________________________
Witness Name
6
